AN EMPIRICAL STUDY ON THE DEVELOPMENT OF SINGAPORE LAW

Citation(2011) 23 SAcLJ 176
AuthorGOH Yihan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor, National University of Singapore. Paul TAN LLB (Hons) (National University of Singapore); Senior Associate, Rajah & Tann LLP.
Date01 December 2011
Published date01 December 2011

This article presents the preliminary findings and views of a comprehensive empirical study of Singapore law from 1965 to 2008. A significant component of this study involves a detailed empirical study into the development of Singapore law by reference to a number of objective indicia. From the empirical data collected, the study then briefly analyses the data gathered in a qualitative fashion. Here, the study draws conclusions as to how far we have come in the development of Singapore law in a wide range of important spheres, including civil, commercial, criminal, tort and constitutional law; how and why Singapore law has been shaped by foreign decisions; the trends and extrapolations that could be made in terms of the practice of judicial decision-making; and what some of the factors might be that account for these developments.

I. Introduction

1 Not unsurprisingly, the development of Singapore‘s laws mirrors the historical arc of our nation-building efforts.1 Just as

Singapore began (and very much still is) an immigrant society, the laws that governed (and very much still govern) have their roots in the laws of different nations. While predominantly influenced by English legislation and common law, Singapore‘s legislative and common law origins also find inspiration from other jurisdictions, most obviously from Australia (in the areas of land law and company law) and India (from which our Penal Code2 and Evidence Act3 were imported). But just as Singapore searches to find a national identity from the diversity of her people, the ambition to develop an autochthonous jurisprudence has been one that has captured the imagination for some time now.4 As the brief conspectus of the development of Singapore law below will show, serious efforts have been taken towards this ambition - as an intellectual project in its own right and for the practical reason that our laws should reflect, where necessary, the unique circumstances of our country. As Singapore enters another critical juncture of the development of its jurisprudence - this time, as part of efforts to

promote Singapore law as the lex mercatoria of the region5 - it is perhaps time to take stock of how far we have come, and to indulge in a bit of crystal ball gazing.

2 This article is the introductory product of a yearlong empirical study undertaken of all reported judgments emanating from the Singapore courts (including the Privy Council and Malaysian Federal Courts where they involved appeals from the lower courts of Singapore) from 1965 to 2008. Research into 2009 and 2010 data is currently ongoing.6 It is important to set the ambit of the current article, so that the reader can calibrate his or her appreciation of the findings and views presented. In short, the purpose of this article is to introduce the aims and methodology of this study. More substantively, this article presents some of the findings for the first part of the study (viz, examining the broad development of Singaporean jurisprudence by reference to key indicators) as well as the authors‘ preliminary views. In particular, the focus will be on the growth of and our courts‘ reliance on local jurisprudence (in contradistinction to our courts‘ reliance on foreign decisions), as well as the reliance on academic arguments in local judicial decisions. It is not sought, in the confines of this article, to determinatively assess every aspect of the developmental trajectory of Singapore law. Nor does this article seek to answer the more philosophical question as to “what constitutes a uniquely Singaporean jurisprudence”. These are interesting questions, but it would be incorrect to see these as the primary purpose of this piece.7 It is sufficient for the purposes here that references to “Singaporean jurisprudence” denotes the collective body of jurisprudence emanating from our courts (as an empirical fact), which may be more local (where they depart from positions elsewhere), more international (where there is more reliance on foreign jurisdictions) or a blend of both. The approach here is intentionally and primarily descriptive (and not prescriptive) - ie, how has Singaporean jurisprudence developed and what factors may account for this as opposed to whether these trends are desirable or not. But the authors think (and hope) that the telling of a story is just as important as analysing the story. And the story this article hopes to tell is the

development of Singapore law, presented statistically and with some preliminary commentary on the statistics.8

II. Aims of the study

3 There are essentially three aspects to the substantive study, each of which constitutes a broad aim in itself.9 First, the study attempts to understand how our jurisprudence has developed from an empirical perspective since Singapore‘s independence by reference to several key, objectively-verifiable, indicia which include the frequency as well as rate of approval by our courts of citations of foreign jurisdictions (and which), the frequency of citations by our courts of its own decisions, the frequency of citations of academic writings, and the length of judgments. This is termed the “internal” aspect of this study. The purpose for which such data has been mined is to distil observations as to the extent to which:

(a) the Singapore courts are citing local decisions in preference to foreign decisions;

(b) the Singapore courts are willing to depart from the traditionally-dominant English position;

(c) the sources of foreign decisions have become more globalised and diversified; and

(d) academic literature and other types of commentaries are being considered and influencing the development of our jurisprudence.

4 This survey is taken of all reported decisions in major and important spheres, cutting across personal law, commercial law and international law. Such an empirical study will provide the platform with which to properly test certain hypotheses on the development of Singapore law, as well as the practice of its judicial institutions. This flows also from a belief that the law, being a human construct, cannot be analysed in the abstract without recourse to factual happenings. Accordingly, a necessary first step is the collection of factual data with which to describe Singapore law from an empirical perspective.

5 Second, the study attempts to track, at least in broad terms, the extent to which Singapore jurisprudence has been “exported” either through academic writings or the judgments of foreign jurisdictions. This is termed the “external” aspect of the study. This is again a predominantly empirical study.

6 Third, the study attempts to map the empirical analysis against the socio-economic developments that have taken place as well as our stated desire to develop an autochthonous jurisprudence and to promote Singapore as a centre for legal services in the region. In other words, this part of the study aims to explain both the “internal” and “external” aspects qualitatively. This is also where certain postulates will be made with regard to Singapore law broadly, as well as the practices and development of its judicial institutions. Indeed, it is in this final phase of the project that what a “Singaporean jurisprudence” means will be discussed and an attempt to discern the jurisprudential thinking behind our courts‘ decisions made. In this respect, the studies into the number of foreign decisions followed, distinguished, and not followed can be given flesh to by now understanding why Singapore law has departed from a particular country‘s case law.10

7 Above all, the aims of this study are to discover patterns, based on objective indicia, in how Singapore jurisprudence has been developed since Singapore‘s independence; to provide possible reasons that might account for those patterns; and, where appropriate, to extrapolate those trends. This study should be beneficial to both practitioners and academics. For practitioners, understanding how the courts are shaping the law, how receptive they are to foreign decisions, or how readily they would accept the views of academic literature, is invaluable when crafting submissions to court.11 Academics, too, may

find the results of the study helpful in appreciating how and in what ways their works have contributed to the development of Singapore law. Our study (it is hoped) also lays the groundwork for further research into the decision-making process of the courts, its advantages, its disadvantages and possible areas for reform or reconsideration.12

III. A brief conspectus of the development of Singapore law to date

A. A brief history of the Singapore legal system

8 A brief mention (owing to the constraints of space) needs to be made about the history of the Singapore legal system. In particular, the very close relationship between Singapore and English law must be outlined, for it is in this context that the significance of the Singapore courts‘ development of local law can be better understood.

9 The foundation of the Singapore legal system is clearly based on English law.13 After Sir Thomas Stamford Raffles‘ arrival in 1819 and even after Singapore‘s independence in 1965, English law was regarded as being of very strong influence. In essence, English law has always been perceived as being “received” by the fledging Singapore legal system, therefore explaining the (as will be seen) strong connection between Singapore and English law. This connection exists even up to the present time. The mechanics of this reception is rather complicated, but may be divided broadly into two distinct periods: the first of which was prior to the passage of the Application of English Law Act (“AELA”)14 by Parliament in 1993, and the second period, after that passage.

(1) Pre-1993: Reception by three means

10 As for the first period, the detailed history of the reception of English law in Singapore prior to the passage of the AELA15 need not be

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