THE EVOLUTION OF SINGAPORE’S MODERN CONSTITUTION: DEVELOPMENTS FROM 1945 TO THE PRESENT DAY

• Citation: (1989) 1 SAcLJ 1
• Published date: 01 December 1989
• Date: 01 December 1989
• Author: KEVIN TAN YEW LEE

Introduction

Any lawyer studying the constitutional histories of former British colonies will quickly realise that the transition from colony to independence on the basis of an established constitutional framework in these former colonies have often proved disastrous. Indeed, the failure of constitutional government in these former colonies has been the norm rather than the excception. Singapore’s story is in that sense unique. This brief history of Singapore’s constitutional development from 1945 to the present documents the various changes that have taken place over the past 45 years.

The Constitutional Position Before 19422

The structure of government in the early years of Singapore’s history was haphazard and confusing. When Sir Stamford Raffles claimed Singapore for the British East India Company in 1819, he placed her under the government of Bencoolen, of which he was the Lieutenant-Governor. The Presidency at Bencoolen was in turn, subordinate to the Supreme Council in Fort William, Bengal. The Supreme Council, had extensive legislative powers granted under Pitt’s Act of 1784 and the power to legislate for Singapore lay in Fort William. Raffles had staked the British claim on Singapore without express authority from his superiors in Bengal and it was not till 1824 that Singapore and Malacca were effectively transferred to the East India Company by the British Parliament.3 At the same time, both territories became subordinate to Fort William and subject to the jurisdiction of the Supreme Court of Judicature in Fort William.4

In 1858, the East India Company was abolished and Singapore came under the direct administration of the new Indian Government.5 Indian rule proved unsatisfactory as the local population felt that legislators in India were insensitive to local needs. After much agitation both in Singapore and in the British Parliament, Singapore was transferred to the Colonial Office in 1867.6 At the time of transfer, Singapore was given a normal colonial constitution.7

Under this Constitution, the structure of the judicial system, established by the Second Charter of Justice8 and augmented by the Third Charter of Justice9 remained largely unchanged. In 1826, the Second Charter had extended the jurisdiction of the Recorder’s Court at Penang to Malacca and Singapore, and the Penang-based Recorder was to travel on circuit to the other two territories. Troops, the Lieutenant-Governor, the Colonial Engineer and four Unofficial which had jurisdiction over Singapore and Malacca, consisted of the Recorder of Singapore, the Governor and Resident Councillor. The other division comprised the Recorder of Penang and the Governor or Resident Councillor of Penang and it had jurisdiction over Penang and Provice Wellesley.

Legislative authority in the Colony was vested in the Legislative Council. There were two classes of members in the Council, the Official members and the Unofficial members, the former taking precedence over the latter.10 The number of the Official members always exceeded that of the Unofficial members and gave the Governor (who possessed a casting vote11) effective control over the Council. At the time of the Transfer, the Legislative Council consisted of the Governor, the Chief Justice, the Officer Commanding the Troops, the Lieutenant-Governor, the Colonial Engineer and four Unofficial Europeans. By 1871, the Lieutenant-Governor of Malaccca, the Judge of Penang, the Treasurer, the Auditor-General and two more Unofficial members were added to the Council.

The Council got to work very quickly and by Straits Settlements Act I of 1867, all appointments made under the Indian Government were invalidated except for officers holding office under the 1855 Charter of Justice. By Act III of that same year, the Governor of the Straits Settlements ceased to be a Judge of the Court of Judicature but the Resident Councillors continued to sit under their new titles of Lieutenant-Governors. This Act also made changes in the nomenclature of other officer: The “Recorder of Singapore” became the “Chief Justice of the Straits Settlements” and the “Recorder of Penang” became the “Judge of Penang”.

In 1868, the Court of Judicature of Prince of Wales’ Island, Singapore and Malacca was abolished and in its place was established the

Supreme Court of the Straits Settlements.12 By this reorganisation, the Resident Councillors, by implication, ceased to be Judges of the Court.13 A few years later, the Supreme Court was again reorganised. By Ordinance V of 1873, Ordinance V of 1868 was repealed and the Court now consisted of the Chief Justice, the Judge at Penang, and a Senior and Junior Puisne Judge. There were two divisions of the Court, one at Singapore and Malacca and the other at Penang.14 Significantly, the Supreme Court was given jurisdiction to sit as a Court of Appeal. This jurisdiction was very significant since appeals had previously only lain to the King-in-Council.15

After the creation of the Court of Appeal by the Ordinance of 1873, several other major changes were made to the structure of the courts in Singapore.16 In 1878, as a consequence of the changes in the court structure in England resulting from the passing of the U.K. Judicature Acts 1873—75, an Ordinance was passed to restructure the courts in Singapore. Under this Ordinancce, the jurisdiction of and residence of the Judges was made more flexible and by implication, the divisions which were created by the earlier Ordinance was abolished. The jurisdiction of the Supreme Court itself was now similar to that of the new English High Court whereas it was formerly geared to the old Common Law Courts and the Court of Chancery.17

In 1907, the 1878 Ordinance was re-enacted with amendments by Ordinance No.XXX of 1907 in which the jurisdiction of the Supreme Court was presented in a more organised manner. Under this Ordinance, the Court would exercise:

1. a. General Jurisdiction;

2. b. Original Civil and Criminal Jurisdiction; and

3. c. Civil and Criminal Appellate Jurisdiction.

Furthermore, with the establishment of the Federated Malay States (F.M.S.) and their own judicial system, the Ordinance provided that the Judicial

Commissioners of the F.M.S. shall be supernumerary judges of the Supreme Court of the Straits Settlements and that the Governor could appoint them from time to time to perform the duties of a Supreme Court Judge.18 The 1907 Ordinance also did away with the Quarter Sessions and Court of Requests and District Courts with both civil and criminal jurisdiction and Police Courts (replacing the Magistrates’ Courts) were established.19 Subsequent amendments to this Ordinance which did not alter the existing structure were incorporated into Ordinance No. 101 of the 1926 Revised Edition of the Ordinances of the Straits Settlements.

The last major change in the judiciary before the Second World War came in 1934. The Courts Ordinance20 of that year took into account the various changes in the F.M.S. judiciary and created a Court of Criminal Appeal21 which was basically an extension of the Supreme Court’s jurisdiction.

In 1877, an Executive Council was introduced into the government of the Straits Settlements.22 The purpose of the Executive Council was to advise the Governor and it was to comprise “such persons and constituted in such manner as may be directed” by the Royal Instructions.23 The Letters Patent establishing the Executive Council also empowered the Governor to appoint “all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers”.24 The Council was to be consulted by the governor on all affairs of importance unless they were too urgent to be laid before it or of such a nature that reference to it would prejudice the public service. In all of these urgent cases, the Governor had to communicate to the Executive Council the measures he had adopted.

After 1877, the structure of the government, in particular, the Executive and Legislative Councils and the powers of the Governor as well as competence to legislate for the Colony remained largely unchanged until the advent of World War II. In the interim 65 years, several Letters Patent which had the effect of revoking earlier Letters Patent or Royal Instructions were issued to streamline and reorganise the constitutional structure of the colony but they did not substantially change the arrangements made by the 1867 and 1877 Letters Patent.25 The last constitution of the Straits Settlements was that of

1924 which based on Letters Patent dated 17th December 1911 as amended by Letters Patent dated 18th August 1924 and Royal Instructions dated 18th August 1924.

The only note-worthy changes were those made by Governor Guillemard in 1924. Two Unofficial members of the Legislative council were to be nominated by the Governor to sit on the Executive Council and the Legislative council was enlarged to comprise 26 members, with equal numbers of Unofficial and Officials. Under this scheme, the Governor had a casting vote. The Penang and Singapore European Chambers of Commerce were each allowed to nominate one Unofficial whilst the Governor nominated the rest on a racial basis: five European (including one each from Penang and Malacca); three Chinese British subjects, one Malay, one Indian and one Eurasian.26

The Japanese Occupation 1942—194527

The structure of the constitution and courts as described above remained almost intact throughout the 1930s and into the 1940s. It might well have continued in existence even till the next decade were it not for the invasion of Singapore by the Japanese forces under Lieutenant-General Tomoyuki Yamashita on the 15th of February 1942. The British surrender meant that from that date, Singapore would be administered and justice dispensed according to the rules and regulations of the Japanese conquerors.

Much confusion abounds as to where the proper legislative authority lay. There were...