Citation(1991) 3 SAcLJ 1
Published date01 December 1991
Date01 December 1991

Even the most casual inspection of a few random volumes of the Malayan Law Journal will reveal the fact that, in certain circumstances, legislation enacted by the English Parliament, or Orders in Council issued by the Crown in Council, may still be applicable in the courts of the Republic of Singapore, and it is a matter of some interest to consider what these circumstances may be and which of such Statutes or Orders may still be applicable.

Now it is the beginning of wisdom in this matter — although it is by no means the end — to recognise that there are several such distinct circumstances and that at least three of them must be differentiated, even though the notion of precisely three such circumstances may well be an over-simplification, and even though, as we shall see, the categories themselves may well overlap.

Be that as it may, the three principal categories may be described as, first, English Statutes applicable by virtue of the doctrine of reception under the interpretation placed upon the Second Charter of Justice 1826;1 second, English Statutes and Orders originally applicable by paramount force,2 and third, English Statutes applicable by virtue of a Singapore reference thereto.3

Before, however, we can consider any of the three categories in detail, we must commence with a little of the inevitable potted legal history which constitutes the backdrop against which the entire problem has to be viewed.

Historical Background

Every schoolboy knows that in 1819 Sir Thomas Stamford Raffles established a “factory” on the island on Singapore.4 This he accomplished

first, by entering into a “Preliminary Agreement” with the Dato’ Temenggong of Johore, dated 30 January 18195 and then, there being a dispute as to who was the rightful ruler of the Johor Lingga kingdom, by arranging for the installation of Tungku Husain as Sultan,6 albeit that Major Farquhar — then Resident at Malacca — had, the previous year, entered into a treaty with the other claimant.7 Although Mills wrote that Tungku Husain was “indisputably the lawful Sultan”,8 it is difficult not to agree with the comment of Winstedt:9

“That Raffles had any shadow of right so to interfere in the domestic politics of the Johore-Lingga kingdom, a kingdom bound for two centuries by intimate ties to the Dutch, no one can for a moment contend.”

Be that as it may, Raffles then entered into a treaty,10 dated 6 February 1819, with the newly installed Sultan under the terms of which the East India Company was granted permission to establish a factory on the island. Having thus obtained his treaty Raffles then issued the following Proclamation:11

“A treaty having been this day concluded between the British Government and the native authorities, and a British establishment having been in consequence founded at Singapore the Honourable Sir T.S. Raffles, Lieutenant-governor of Bencoolen and its dependencies, Agent to the Governor-general, is pleased to certify the appointment by the Supreme Government of Major Wm. Farquhar of the Madras Engineers, to be Resident, and to command the troops at Singapore and its dependencies, and all persons are hereby directed to obey Major Farquhar accordingly.

It is further notified that the residency of Singapore has been placed under the government of Fort Marlborough, and is to be considered a dependency thereof; of which all persons concerned are desired to take notice.”

On the same day he issued Major Farquhar with a complex set of Instructions and on the following day sailed off leaving the Major to follow his Instructions as best he could.12

That the original agreements merely provided for the establishment of a “factory” not only followed from the wording of the agreements themselves, but was also the view of Crawfurd, the second resident of Singapore. Writing in 1828 he commented:13

“In the first agreement with the native chief the arrangement amounted to little more than a permission for the formation of a British factory and establishment, along two miles of the northern [sic] shore, and inland to the extent of the point blank range of a cannon shot. There was in reality no territorial cession giving a legal right of legislation. The only law which could have existed was the Malay code. The native chief was considered to be the proprietor of the land even, within the bounds of the British factory.”

A subsequent agreement dated 26 June 1819 did not significantly alter the position.14

What then was the law applicable within the factory during the early years of its existence. It should be noted in this context that “factories” were somewhat anomalous creatures. Their legal position was classically described by Sir William Scott (as he then was) in The Indian Chief:15

“It is to be remembered, that wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments, are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries and is different from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident; and this distinction arises from the nature and habit of the countries: In the western parts of the world alien merchants mix in the society of the natives; access and intermixture are permitted; and they become incorporated almost to the full extent. But in the East, from the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and sojourners as all their fathers were — Doris amara suam non intermiscuit undam; not acquiring any national character under the general sovereignty of the country, and not trading under any recognised authority of their own original country, they have been held to derive their present character from that of the association or factory under whose protection they live and carry on their trade.”

To which must be added the gloss provided by Lord Kingsdown in Advocate-General of Bengal v. Ranee Surnomoye Dossee who stated:16

“The laws and usages of Eastern countries where Christianity does not prevail are so at variance with all the principles, feelings, and habits of European Christians that they have usually been allowed by the indulgence and weakness of the Potentates of those countries to retain the use of their own laws, and their Factories have for many purposes been treated as part of the territory of the Sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to Natives within the same limits, who remain to all intents and purposes subjects of their own Sovereign, and to whom European laws and usages are as little suited as the laws of the Mahometans and Hindoos are suited to Europeans.”

Within the limits of the factory on Singapore, therefore, theoretically at least, Europeans were subject to English law from the very establishment of the factory itself, even though the machinery for enforcement was totally lacking, but that law had no application to the “native” inhabitants. With regard to the native inhabitants and with regard to the island outside

the limits of the factory the law applicable can only have been the law of the Johor-Lingga empire — there was simply no other possibility.

Whatever may have been the theoretical position, however, the reality was doubtless rather different. It seems reasonable to assume that for the first few years of its existence the factory lived in something akin to a state of nature,17 each community adhering to some extent to its own laws and customs administered by accepted headmen or “Kapitans” with the few Europeans a law unto themselves. Again it is Crawfurd who described the situation:18

“No legal sanction for administering justice existed in the early years of the settlement. The regular cession of it had not then been obtained; it was unacknowledged by the Crown or Parliament, and the Supreme Government of India, therefore, was without the power of delegating any authority to the local officers for the due administration of justice. The resident, under these circumstances, was compelled to assume an authority which by law he did not possess.”

Under the benign administration of Farquhar, however, the factory nevertheless prospered and all was going well until Raffles returned for his third and final visit at the end of 1822. During the course of his visit Raffles made many changes some of which must be touched upon here, although not necessarily in their strict chronological order. Perhaps the most important change was yet a further “agreement” with the Sultan. This appears in a Memorandum which, as printed in the usual collections, has no date and is signed only by Raffles.19 This is presumably the agreement referred to in Raffles’ letter to the Supreme Government dated 7 June 1823 in which he wrote:20

“With reference to the political discussions which have taken place regarding the Settlement, and the questions which have arisen regarding its tenure, I did not deem it prudent in any way to alter or revise the original treaty, but the conventional agreement now made may be considered equally binding on the parties, and may of course be

hereafter adopted as the basis of any more definite treaty to be entered into, after the permanency of the Settlement has been established.”

The effect of the so-called agreement would have been to vastly increase the area under the control of the “factory”, a control which would have extended to the entire island save only for the land “appropriated to their Highnesses”. Whatever the effect of the Memorandum, however, it still...

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