APPLICATION OF ENGLISH LAW BILL

[Mr Speaker in the Chair]

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Bill has two main objectives. Firstly, it clarifies the application of English law, particularly English statutes, as part of the law of Singapore and removes the considerable uncertainty that currently exists in this regard. Secondly, it makes our commercial law independent of future legislative changes in the United Kingdom - changes which we in fact have no control.

The Bill is one of the most significant law reform measures since our independence. In order that Members may appreciate the compelling need for this Bill, let me explain briefly the existing legal position on the application of English statute law and why it is highly unsatisfactory.

The Second Charter of Justice of 1826 introduced into Singapore (which was then part of the Straits Settlements) the common law of England, including the principles and rules of equity, as well as English statutes enacted before 27th November 1826. Whether a pre-1826 English statute was received as part of the law of Singapore depended on whether it was one of general application and adaptable to the condition and wants of the inhabitants of the land. Past judicial decisions have authoritatively held that certain pre-1826 English statutes, for example, the Statute of Frauds 1677, have been received in Singapore. However, the problem is that it is not possible to say with certainty what other pre-1826 English statutes which have not been considered by our courts remain receivable. Of those statutes which have been held to apply in Singapore, many are also inaccessible and unavailable to the general public and even to lawyers. Moreover, the language of these ancient statutes is archaic and very difficult to understand.

Apart from these pre-1826 English statutes introduced by the Second Charter of Justice, a number of Imperial statutes were made applicable to Singapore as a colony by the United Kingdom Parliament. These statutes continued to remain applicable after our independence, though some were repealed and replaced by our own legislation. The Imperial Copyright Act of 1911 was, for example, replaced by our own Copyright Act of 1987. Like the pre-1826 English statutes, here again no one can identify with certainty the exact number of Imperial statutes which continues to apply in Singapore today. Quite clearly, there is a great need to clarify the position as to the applicability of pre-1826 English statutes and post-1826 Imperial statutes.

I now turn to the reception of English mercantile law under section 5 of our Civil Law Act, a provision well known to lawyers and also a source of considerable legal literature. That section in the Civil Law Act was introduced into our law in 1878 and provides that in any question or issue which arises in Singapore with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and generally with respect to mercantile law, the law to be administered shall be the same as that administered in England at the corresponding period unless other provision is made by any Singapore law. Although the section was amended in 1979, in an attempt to reduce the uncertainty as to its scope of application, that amendment did not go far enough and I think, Sir, the time has now come for the repeal of that section altogether. So long as that section remains no one can say with certainty at any point of time what our commercial law is unless he has access to the most up-to-date English legislation. Where we do not have our own local legislation in any particular area of commercial law, we may find that an English commercial statute can be held to apply under section 5 regardless, and I emphasise, regardless of whether such application is desirable or not. However, I would say that the most unsatisfactory feature of section 5 is the great difficulty of interpreting its provision to determine whether a particular English statute is applicable in relation to a particular case. There were two Privy Council decisions in 1923 and 1933, which provided different interpretations of the ambit of that section.

Sir, our legal system has now attained sufficient maturity for us to repeal section 5 and to cut off the automatic reception of future English commercial statutes. Nevertheless, under the Bill, a number of very important English commercial statutes will continue to apply in Singapore so that the basis of our commercial law remains very much the same as English commercial law which up till now has been applicable under section 5. However, with the repeal of section 5, the important point is that future legislative changes in the United Kingdom will no longer have any effect on our commercial law.

Let me now deal with the specific provisions of the Bill. Clause 3 is a declaratory provision of the existing legal position. It preserves the corpus of English common law (including the principles and rules of equity) that now applies or has been received in Singapore as part of the law of Singapore. It is not intended to change the legal position as regards the applicability of the common law of England, which to the extent that it continues to apply, is subject to such modifications as the circumstances may require. Clauses 4 and 5 are the key provisions. Clause 4 read with the First Schedule to the Bill authoritatively specifies which English enactments are to apply or to continue to apply in Singapore subject to the necessary modifications. A number of such modifications are set out in subsection (4) of the clause. Clause 4(3) also ensures that in the event of any inconsistency between a provision of an English enactment and a provision of a local Act, the local Act shall prevail.

Members will note that Part I of the First Schedule preserves the application of three Imperial Acts while Part II specifies 13 English commercial Acts which will apply or continue to apply in Singapore. Part III of the First Schedule also effects certain amendments to the English commercial Acts to bring them into line with local legislation and local circumstances.

The First Schedule does not specify any pre-1826 English statute. This is because those provisions of the pre-1826 English statutes which are still relevant and applicable in Singapore have been restated and revised in modern form and will be incorporated into the appropriate local Acts. Clause 7 and the Second Schedule provide for this restatement and revision.

It may be noted that the Second Schedule contains an amendment to section 43 of the Extradition Act, a point which I will deal with later at the Committee stage. It may be noted that the Second Schedule creates a new offence of piracy to be inserted in the Penal Code. The reason for this is that such an offence at present is dealt with in two Imperial statutes - the United Kingdom Admiralty Offences (Colonial) Act 1849 and the Courts (Colonial) Jurisdiction Act 1874.

Let me now deal with clause 5 of the Bill, which is also a key provision. Under this clause, no English enactment shall be part of the law of Singapore except as provided in the Bill. The effect is that no pre-1826 English statute and no Imperial Act (other than the three Imperial Acts preserved in the First Schedule) will have any force of law in Singapore. This clause will remove once and for all the possibility of some obscure English statute which no one in Singapore is aware of being one day held to be applicable here.

In the event of any unforeseen difficulty in the application of any provision of any English enactment specified in the First Schedule, clause 8 empowers the Minister, on the advice of the Law Revision Commissioners, to make a modification order to modify or substitute that provision. This clause will take care of any unexpected difficulty which cannot at the present moment be fully anticipated.

Sir, as I said, this Bill is a major piece of law reform, although it may not excite great public interest because of its technical nature. Nevertheless, it should prove to be of great benefit not only to the legal profession, but also to the business community and the public at large. It does away with antiquated and outmoded English statutes which hitherto apply in Singapore and will provide practitioners and those interested in the law with an authoritative and definitive list of applicable English statutes. What is more important, Sir, is that it will make our commercial law independent of future legislative changes in the United Kingdom.

Sir, I beg to move.

Question proposed.

Mr Davinder Singh (Toa Payoh GRC): Mr Speaker, Sir, I support the Bill.

This piece of legislation is long overdue. I agree with the Hon. Minister that the present state of the law in relation to the reception of English law is very unsatisfactory. This is just but one step that we have taken to remedy the situation. There are other things that we have to do, and I hope that they will be done soon. I will come to that in a moment.

The difficulty has arisen because of our previous position as a colony. Like other colonies, the laws that applied depended very much on the laws that were prevailing in the colonial power. In Singapore, we received laws from England in a number of ways. One way, as the Hon. Minister has described, is the Second Charter of Justice. This was way back in 1826 when King George IV decreed that the laws of England as at November 1826 should continue to apply in Singapore. Whatever the reasons, we have continued to apply that law in Singapore. It is not possible picking up a book or a statute to determine with precision which law exactly applies in this country or if any particular law has been repealed. That is an example of one law that has been forced upon us, as it were.

But in addition to that, we have other laws, as a result of us voluntarily receiving English law. For example, section 5 of the Civil Law Act which was referred to by the Hon. Minister. By that section, what we have done - I think that was enacted in 1878 - is that we decided, because of our inexperience in mercantile affairs, we would import the commercial laws of England to some extent. Although the intention was clear, there was difficulty in drafting the legislation. It has been a source of constant headache, both to practitioners and Judges. For now, more than a hundred years, no one really knows the true answer to the meaning of section 5 of the Civil Law Act, and of course, that has given rise to considerable litigation and, as the Minister has said, a lot of literature on the subject.

A third source of laws is what is called Imperial Acts. These are Acts which were passed by the United Kingdom Parliament designed for colonies, for example, Singapore. It is not peculiar to this country that we have had these laws or this experience. We have the Dutch laws continuing to apply to some extent in Indonesia, the French in Indochina, the United States in the Philippines. What is surprising is that it has taken us so long to deal with this situation. Hong Kong had a similar situation, but it dealt with it in 1966. They passed an Ordinance which was similarly named, Application of English Law Ordinance, to do away with this uncertainty and to specify which particular Acts which were prevailing in England would apply in Hong Kong. I think this is very much similar to what we are doing here, albeit almost 30 years later.

This is a step in the right direction because it introduces a great deal of certainty, which is very desirable from a commercial standpoint. As I said earlier, today, if you ask a lawyer whether a particular Act applies in Singapore, he would have difficulty answering the question because he would need to know what is the issue that requires that answer. Because of the way section 5 of the Civil Law Act is drafted, you need to determine what issue is in question, how that issue arose, and to determine whether an English Act can apply in this country for the determination of that issue.

With this Bill, all those problems will hopefully be resolved. But there are some residual areas which need to be addressed. For example, we still have Acts in this country which import English laws. One example of an Act is the Criminal Procedure Code. The Criminal Procedure Code purports to define the procedure in criminal proceedings in Singapore. But in the event of a lacuna, a gap, or an area which has not been addressed by the Act, there is a section which says that to the extent that the Act does not apply or does not deal with it, the law relating to criminal procedure for the time being in force in England shall be applied. This is very unsatisfactory. It is just one example of a host of Acts where we have similar provisions. The Criminal Procedure Code is one. The Women's Charter is one where, I suspect, because we are unable to think of all the possible situations that have arisen, we have taken this precautionary measure of saying that if the Act does not address the situation, we will apply what is happening in England. But because of the policy reasons that have been elaborated upon by the Minister, I think we will have to move away from that situation. We have to address it ourselves and decide what we want and what we do not want from England, and make it part of our own law, so that everyone will know exactly at any time they want to know it what the law is which prevails in this country.

Prof. Jayakumar: Sir, I need only to touch on the last point raised by Mr Davinder Singh. I completely agree with him. Indeed, I am discussing with the Attorney-General the need to review other legislation, not only the Criminal Procedure Code, which may have such provisions falling back on English law. I think we need to review this with the principle which I have enunciated here, that is, we must have certainty in our laws and move away from reliance on English law, because we do not know what are the conditions and circumstances which presently shape the enactment of laws in the United Kingdom. Another good example, apart from the Criminal Procedure Code, is our own Parliament (Privileges, Immunities and Powers) Act. You will find there a provision that when it comes to any doubts as to the privileges and immunities of this House, we are to refer to the United Kingdom House of Commons. I am sure there are several other such legislation. Let me assure him that a review is being done of all such legislation and, where necessary, we shall move amendments in the future to take care of that problem.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. Jayakumar].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clauses 1 to 9 ordered to stand part of the Bill.

First Schedule ordered to stand part of the Bill.

Second Schedule -

Prof. Jayakumar: Sir, I beg to move the amendment* standing in my name.

*The amendment reads as follows: In page 15, to leave out lines 30 to 36, and insert - "(a) by deleting the word "State" in the fourth line of subsection (1) and in the third line of subsection (3) and substituting in each case the words "or Commonwealth country"; and (b) by deleting the word "States" in the marginal note and substituting the words "or Commonwealth countries".".

Sir, the amendment is to widen the scope of section 43 of the Extradition Act so that the taking of evidence under that section in respect of criminal matters pending in foreign courts may be extended to a request from any foreign or Commonwealth country. Presently, section 43 only applies to a request from a foreign state with which Singapore has an Extradition Treaty. This is far too restrictive. The amendment in the Bill amending section 43 widens the scope of that section to cover a request from a declared Commonwealth country, ie, a Commonwealth country with which we have Extradition agreements. But, Sir, requests for assistance in respect of taking of such evidence have also been received from both foreign and Commonwealth countries with which we have no Extradition treaties or arrangements. The amendment which I am moving now will enable us to accede to a request for such assistance from such foreign or Commonwealth countries. This will be done usually on the basis of reciprocity.

Amendment agreed to.

Second Schedule, as amended, ordered to stand part of the Bill.

Bill reported with an amendment, read a Third time and passed.