BOOK REVIEW A REPLY

• Published date: 01 December 1991
• Author: WHANG SHANG YING ANDREW PHANG BOON LEONG
• Date: 01 December 1991
• Citation: (1991) 3 SAcLJ 139

THE DEVELOPMENT OF SINGAPORE LAW. By Andrew Phang Boon Leong. [Singapore : Butterworths. 1990. xxviii + 593 pp. (including index). Hardcover : S$280.00]

Dr Phang has written an ambitious book. Drawing on multi-disciplinary material, he has sought to trace the development of Singapore law in ‘broad brush strokes’ from the colonial period to the present. Singapore law and its legal system are linked to the wider socio-economic and political context.

The book has two principal theses:—

1. (1) The impoverishment of the common law

   The development of the common law in Singapore has been impoverished. Such common law as exists locally is essentially a ‘carbon copy’ of English common law. The law of contract is used to illustrate this thesis. It is contended that, insofar as the post-colonial period is concerned, the primary reason for such impoverishment is the excessive materialism of members of the legal profession. There are other factors. These include, inter alia, the depoliticization of the profession and the lack of a tradition. The author then argues for ‘a truly indigenous Singapore legal system’, so as to help develop national pride as well as a greater spirit of professionalism in the legal profession. This, in return, will enhance the legitimacy of the legal system itself.

2. (2) ‘Instrumentalism-as-myth’

   The popular perception of PAP-initiated legislation during Singapore’s post-colonial period as instruments of social engineering is a myth. Such legislation has been successful because it is perceived as legitimate, because there exists a coincidence of interests between the people and the government, because of the influence of the wider social-economic context in which they operate and because of astute balancing processes in relation to such legislation. Here, the author considers legislation in the areas of criminal law (contrasting single-minded PAP initiatives with dilatory colonial measures), family law, family planning and population control, labour law and trade unions, and public housing.

Despite the effort that went into this book, the results are unsatisfactory in a number of ways. There are three broad areas of criticism: the substance of certain key arguments, the scope of the book and its general style.

The first part of the first thesis centres on the proposition that local common law is by and large a ‘carbon copy’ of English common law. This is a truism which any reasonably bright law student will quickly discover for himself, although Dr Phang’s survey of the application by local courts of the various doctrines of contract law is useful.

In the second part of his first thesis, Dr Phang diagnoses the malaises plaguing the legal profession. It is probable that most disinterested observers and even members of the profession will concur, to a greater or lesser extent, with his diagnosis. Unfortunately, the prescription is question-begging. What does his exhortation for a more professional attitude mean? Quotations from the Senior Minister and former Prime Minister, Mr Lee Kuan Yew, obfuscate more than they illuminate. In 1967, speaking in the context of assisting in the problems with regard to criminal law detainees, Lee called for “a bar with a conscience, a social conscience towards your own society” (p. 123). In 1986, he said:

“The future does not lie in police court or criminal work. The future lies in our trade, our banking, our financial services and information technology.” (p. 135)

What is the reader to make of these two statements? Without the benefit of a coherent overarching vision of his own, the numerous quotations gathered by the author in this section give the impression that he is rehearsing stock arguments rather than advancing any fresh ideas.

Insofar as the second thesis is concerned, this reviewer is simply not convinced by the proposition that instrumentalism is a ‘myth’.

Dr Phang analyses how legislation promulgated by the PAP in selected areas has served the common good by shaping a society with good law and order, stable population growth, a compliant labour movement, adequate housing for the people, etc. In the process, the citizen is given new legal rights (e.g., under the Women’s Charter), stripped of pre-existing legal rights (e.g., under the Internal Security Act, the right not to be detained without trial) and guided by various incentives and disincentives (e.g., in relation to family planning, “graduated delivery fees (or their waiver), the issue of paid maternity leave to the availability of income tax reliefs, the modification of housing policies and the question of priority in primary school admission” (p. 293)). Much of this is meticulously chronicled in the book. Imagine the reader’s surprise then, to find the author asserting that such measures do not amount to social engineering, and dismissing

(without actually disproving) “the popular perception that the PAP has utilized legislation of social policy and control in a ‘top-down’ fashion” (p. 361).

The fallacy of the second thesis arises out of a confusion over the term ‘instrumentalism’ (which, incidentally, is not defined anywhere). The author seems to suppose that law can only be properly described as ‘instrumentalist’ if it is the sole sufficient cause for achieving specific policy goals.1 However, the fact that other, extra-legal factors — “the wider socio-economic context” — may have contributed to the achievement of such goals surely does not preclude the relevant legislation itself from being ‘instrumentalist’ in design. The author himself constantly impresses on the reader the political will behind the various legislative programmes, be it eradicating Chinese secret societies or introducing housing for the masses. Reference, too, is made to the PAP’s paternalistic philosophy. These are entirely consistent with and, indeed, demand precisely the sort of ‘top-down’ approach to law-making which he characterises as a ‘myth’.

The scope of the book also calls for comment. It does not deal with international law or public law. Omission of the latter is particularly startling in a book which aims to provide ‘historical and socio-legal perspectives’ on Singapore law. Public law, comprising constitutional and administrative law, is concerned with the principles and procedures governing the exercise of powers and duties by the government and public authorities. In Singapore, Parliament has frequently seen fit to introduce statutory provisions which exclude or limit the legal liability of government authorities. At the same time, the judiciary has been circumspect in extending its jurisdiction over government authorities in the face of such legislation. Compared to the body of case law that has grown in this area in England and Malaysia over the last two decades or so (Lord Diplock has described the progress of administrative law as “the greatest achievement of the English courts in my judicial lifetime”2), administrative law in Singapore is underdeveloped. Such a state of affairs corroborates Dr Phang’s first thesis but undermines his second thesis, for, if a legal system strongly discourages administrative decisions from being legally challenged, does this not suggest that the system is premised on a ‘top-down’ approach to law-making?

Given the book’s multi-disciplinary term of reference, it is disappointing to note that no attempt was made to fit the Singapore legal experience into any broader theoretical framework.

One possibility would have been to relate it to the triadic scheme developed by Roberto Unger, the American legal philosopher. Unger distinguishes three types of law: customary law, bureaucratic law, and the legal order. The legislation considered in the book’s second thesis conforms to the second type, which Unger defines as “a law deliberately imposed by government rather than spontaneously produced by society”3. It is characteristic of bureaucratic law that “the agencies responsible for making and applying [policy decisions or administrative...