RECEPTION OF ENGLISH LAW IN SINGAPORE: PROBLEMS AND PROPOSED SOLUTIONS

• Published date: 01 December 1990
• Date: 01 December 1990
• Author: ANDREW PHANG BOON LEONG
• Citation: (1990) 2 SAcLJ 20

Introduction

The problems pertaining to the reception of English law in Singapore are both numerous and complex. The academic literature generated in the local sphere alone is relatively large.1 It must, however, be conceded that, from a practical point of view, there has been very little interest or at least discussion. One cannot, of course, be sure about this observation, save for the very strong indication that takes the form of the overwhelming lack of litigation in the area, thus rendering it merely (so it appears) an academic monopoly. It should, however, be pointed out that this rather phlegmatic approach in practice belies the very real importance of the issues and problems raised. It is, for example, clear that, unless radical changes are in the offing, reception of English law is of crucial importance in so far as it concerns the

foundation of the Singapore legal system itself.2 And it is from this foundation - a stable springboard, as it were- that (perhaps ironically) an autochthonous Singapore legal system can ultimately be developed.3 To this end, therefore, it is the ‘practice’ that must (perhaps curiously) conform, in part at least, to the ‘theory’. All this may, at bottom, be either psychological and/or cultural in nature, but the importance of such a re-orientation cannot be gainsaid. It might be added that if this still sounds too theoretical, then perhaps adding an extra string to one’s legal bow in the form of an argument premised upon an English statute might bring us to the less rarefied sphere of practical utility. In attempting to negate the effect of an exclusion clause, for example, it might be desirable to plead the U.K. Unfair Contract Terms Act of 1977 as well, although it is admitted that the nature of the ‘reasonableness test’ is such that the mere pleading of the Act does not automatically ensure success on this score. Some might perhaps argue that it is unclear whether the Act is received in Singapore by way of section 5 of the Civil Law Act in the first place. The applicability of the 1977 Act is, admittedly, at least arguable, but what is lost by pleading it in any event? So much, then, by way of broader attitudes as well as approaches.

Turning to the reception of English law in Singapore proper, it is common knowledge that English law has been received in at least one of three ways:4

First - and arguably most importantly - by way of historical or general reception; this concerns the famous (or, rather, ‘infamous’, for reasons that, if not already, will soon become, apparent) Second Charter of Justice of 1826.

Secondly - reception of English law is effected via legislative or specific reception; this concerns the situation where the local statute expressly provides for the reception of English law. The (clearly) most ‘infamous’ provision under this mode

of reception must surely be our ‘old friend’, section 5 of the Civil Act 5 who has hitherto survived attempts to, first, rehabilitate, and then (perhaps out of utter despair) to kill it. Of this, more later.

Thirdly, there is reception of English law by way of imperial legislation, which is simply legislation enacted at Westminster by the English Parliament and which has been expressly extended to (here) Singapore. Up to 1987, the most well-known piece of imperial legislation was probably the Imperial Copyright Act of 1911 which was, however, replaced by the local Copyright Act that very same year. 6 In terms of quantum, this mode of reception (I would prefer to term it direct compulsory imposition) is rather less significant, although the issue of imperial legislation is by no means a dead one: witness, for example, the recent decision of Tan Ah Yeo v. Seow TeckMing7 which concerned the applicability of the U.K. Maritime Conventions Act 1911.

The focus of the instant article will be on the first two, viz., general and specific reception, respectively. And in order to generate as much practical utility as possible, I will propose reforms where applicable. It will, however, be seen that neat solutions such are, more often than not, impossible owing to the very nature of the conundrums themselves. It is, however, hoped that the suggested reforms will mitigate the intensity of the various problems as well as provoke suggestions from other interested parties.

General Reception

The general reception of English law is traditionally perceived to have been effected via the Second Charter of Justice of 1826;8this is, in the main, a result of the famous construction of the Charter itself by Maxwell R. in the celebrated case of R. v Willans.9 We meet, however, problems right at the very outset, for this relatively well-established proposition was challenged not many years ago;10 in that challenge,

the author argued that the Second Charter of Justice had never introduced English law into the then Straits Settlements (of which Singapore was, of course, a part). This rather radical view did not go unchallenged,11 and whilst it must now be considered largely unpersuasive (there being, in addition, very recent case-law to contrary effect 12), several problems remain, even at this threshold stage. One problem pertains to a point already mentioned, i.e., the lack of discussion on the debate itself-which, once again, suggests, at least, that there might possibly be a lack of interest in local ‘roots’.13 The second is of rather more practical significance - despite the fact that the balance of the various arguments weighs very heavily (even conclusively) in favour of the traditional construction of the Second Charter of Justice so as to effect a general reception of English law in general and English statutes in particular in the local context, it cannot be denied that the entire issue is not unambiguously clear.14 Most other countries that have come under British colonial rule do not, in fact, face similar problems, simply because there have been enacted in these countries local statutes that unambiguously introduce English law.15 I am therefore of the view that the Singapore Parliament should enact a ‘Reception of English Law Act’ to eradicate all doubts that English law has, infact, been received in Singapore.16 Even if this be the incorrect solution in law, I am of the view that such an act should nevertheless be enacted in order that a clear ‘base’ might exist for the development of an autochthonous Singapore legal system. Some might argue that it is inappropriate to embrace the law of a foreign (here English) legal system as the foundation for indigenous development. This argument is, however, rather unpersuasive as well as unrealistic for several reasons. First, it is my view that the Singapore legal system has not developed sufficiently (in both quantum as well as substantive development) that English law can be dispensed

with. 17 Secondly, even if a ‘theoretical cutting’of the‘ apron strings’ were desirable, the (perhaps unfortunate) ‘reality’ remains to the effect that English law is still perceived as well as utilized by the local legal profession as a basis for research, advice and argument. 18 Thirdly, there are, in any event, very persuasive historical as well as other reasons to the effect that the Second Charter of 1826 introduced English law in any event, as mentioned above. If this, however, be the case, the enactment of such a statute would be to merely confirm what has always been the legal position

in any event. Finally, the enactment of such a statute would not, it is submitted, lead to the stifling of autochthonous development in so far as the local courts would not be precluded from considering other decisions decided by courts in other jurisdictions as well. The ideal should be viewed as the construction of a rational and coherent (albeiteclectic) Singapore legal system that is best suited to the needs and circumstances of the country, with English law as the logical as well as realistic starting-point. As Professor Bartholomew has pertinently pointed out, the attainment of such an ideal necessarily requires time, and it is submitted that the period could, in fact, span several generations of the legal profession.19 We should thus aim for a ‘reality’ where, whilst English law serves as a convenient ‘base’ during the transition toward an autochthonous Singapore legal system, all concerned in the development of the legal system would constantly strive toward the reduction of reliance on English legal materials. There is, in fact, at least one main way of reducing reliance on such materials. It is self-evident, but has not been generally observed, as a cursory glance at the cases cited in local decisions will demonstrate. It is that local cases should be cited even where they do no more than restate the English position. It is admitted that such citation might not often aid in a substantive fashion, but it is my view that such citation will, in fact, aid in the cultivation of an attitude of mind that would desire, and thus be naturally quick to seize upon, every opportunity for developing an autochthonous Singapore legal system.

Even if the suggestions canvassed above are accepted, there remain other problems. What, for example, would be the ‘cut-off date’ for the general reception of English Law? There has been some controversy with regard to the precise point in time, although the better view appears that the ‘cut-off date’ should be 1826, the date the Second Charter was promulgated.20 It is suggested, therefore, that it be clearly stated that English law (and thus statutes) should, subject to other legislative enactments such as section 5 of the Civil Law Act, be received as at 1826. Whatever the ultimate correctness of this decision, it is, in my view, desirable that a ‘cut-off date’ be formally instituted in order to define a ‘fixed pool’ of the received English law that would constitute the initial corpus of Singapore law from which further development can be effected.21 The choice...