JUDICIAL COMMITTEE (REPEAL) BILL

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 purpose of this Bill is to abolish all appeals to the Privy Council. With such abolition, Singapore will become like other Commonwealth countries in this region (except for Brunei) which have abolished all such appeals. At the opening of the new legal year this January, the Chief Justice stated that with the establishment of the single permanent Court of Appeal in Singapore, the time had come to review the remaining rights of appeal to the Privy Council. The Government has agreed with him. So does the Law Society of Singapore which has written to say that they support the proposal.

Last year when I took through this House the legislation to establish our new dedicated Court of Appeal, I was asked when we would remove all appeals to the Privy Council. I then replied that the Government would review the limited rights of appeal to the Privy Council with a view to its eventual removal after giving the new Court of Appeal time to establish itself. Now that the Council of Judges have unanimously recommended further appeals to the Privy Council be done away with, the time has come for us to cut the last strands of this legal umbilical cord once and for all.

Let me explain briefly why the Government agrees with the Judiciary's recommendation. Since 1989, the rights of appeal have been restricted to criminal cases attracting the death penalty where the decision of the Court of Appeal was not unanimous. For civil cases, appeals to the Privy Council lay only where parties had a prior agreement to do so. In the last four years, there has been no criminal appeal to the Privy Council. In civil cases, there have been only two civil appeals, both cases being related cases which were heard together.

In 1989, I spelt out at some length in this House the reasons which compelled us to seriously question the desirability of maintaining this legal anachronism which has been a feature of our judicial system for the last 30 years since our independence in 1965. The most important reason is that our local legal, economic, social and political developments have placed Singapore on a path that in many ways is different from that being followed by the United Kingdom. This has become especially pronounced with the United Kingdom's entry into the European Community.

Another reason is that continued reliance on the Privy Council would stultify local development of the law which is already over-dependent on case authority from the United Kingdom. The abolition of appeals to the Privy Council would give our local jurisprudence an opportunity to develop along indigenous lines and in a direction more attuned to local and regional realities. In this regard, Members will recall that last year we enacted the Application of English Law Act which abolished Section 5 of the Civil Law Act rendering it unnecessary for our Courts to apply the law as administered in England in the determination of a mercantile issue. With this new law, our courts will now apply only prescribed English statutes as part of Singapore law. Our local legal jurisprudence will henceforth develop on a separate and independent course with English decisions serving only as persuasive authorities for the guidance of our judges. They will not be binding precedents. Abolition of appeals to the Privy Council is a logical and necessary step consequent to the enactment of the Application of English Law Act.

Turning to the provisions of the Bill, clause 2 repeals the Judicial Committee Act, thus abolishing appeals to the Privy Council. This, however, is subject to a saving provision in clause 4 which provides for the continued application of any appeal, application for leave or special leave to appeal made under the Judicial Committee Act before the commencement of the Bill and they will continue to apply. Clause 3 provides for consequential amendments to other Acts set out in the Schedule, and I may add that we will also have to repeal Article 100 of the Constitution of the Republic of Singapore which is an enabling provision allowing appeals to the Privy Council. That, however, will be provided for in a separate Bill which has been introduced by the Finance Minister to amend the Constitution, and it also contains certain other amendments to the Constitution.

Sir, I beg to move.

Question proposed.

Mr Davinder Singh (Toa Payoh GRC): Sir, I declare my interest as a lawyer.

Sir, I support the Bill and I wish to raise two points on which I seek the Minister's clarification. Sir, the position today is that civil appeals to the Privy Council are permissible only if the parties to the proceedings consent to be bound by the appeal to the Privy Council provided that that consent is given before the commencement of the appeal before the Court of Appeal in Singapore. This arose out of an amendment in April 1989. At that time, in moving the amendment, the Hon. Minister said that one of the options the Government had considered was a total abolition of appeals in civil cases to the Privy Council. But having regard to various views and suggestions expressed in the House as well as outside, the Government decided that we should not completely cut off appeals to the Privy Council in commercial matters for various reasons. One is because of the expertise of the Privy Council and the other is the legal store of knowledge that the Privy Council has.

Therefore, it was decided that this option be made available to commercial houses, in particular, banks, finance houses, etc, that they be entitled to put into agreements that they enter into, a clause to the effect that they would agree to be bound by appeals to the Privy Council.

Therefore, what we did in 1989 was to afford this avenue to parties which wished to retain the option of going to the Privy Council. Some parties obviously acted on the faith of that avenue that was afforded and entered into agreements with clauses to the effect that they agree to be bound by appeals to the Privy Council. I consider it slightly odd, to say the least, that the Government, having afforded that avenue, as it were, and the parties having adopted the option that has been given, having walked down that avenue, are now being told that that avenue is closed. Because what this Bill proposes to do is actually to abolish appeals altogether.

We had, some five years ago, given parties that option. People have actually used it. Certainly commercial houses in some cases have, and now we are taking it away from them, summarily, if you like. Instances like these are not covered in the transitional provision. I wonder whether the Minister would consider including these instances in the transitional provision. Let those agreements be worked out, or at least run their course, before this Bill takes effect in so far as these agreements are concerned.

Secondly, and this is related to the first point I have made, the transitional provision in clause 4 provides that the repeal shall not affect any appeals before the commencement or before the effect of the repeal. We are in a very odd situation because it means that parties who have pending appeals, and who might not yet have agreed to go to the Privy Council, are still given time to make that agreement to escape the provisions of this Bill. Because they are entitled to agree before the commencement of the appeal. In other words, before they stand up in the Court of Appeal, they are entitled at any time before then to agree to go to the Privy Council. This transitional provision appears to allow them more time to take a decision whether or not to agree. Whereas the transitional provision takes away from parties who have already agreed to go to the Privy Council on the faith, as I said, of the amendment that this House passed in 1989. It seems somewhat odd to me and I wonder whether the Minister would explain the policy rationale for that.

Finally, if I could just ask the Minister a clarification under clause 4. When it is said that this Act shall not apply to any appeal, does that mean an appeal already commenced, or does that mean proceedings in which notices of appeal have been filed? Because there is a time lag between the filing of a notice of appeal and the actual hearing of the appeal.

Dr Arthur Beng Kian Lam (Bedok GRC): Mr Speaker, Sir, I rise to support this Bill. Sir, I shall be brief.

Sir, four years ago when the GPC for Law and Home Affairs brought up the question of a single permanent Court of Appeal in this House, the Minister patiently explained that while he supported the concept, the constraining factor was that of manpower. Since then, more Judicial Commissioners have been recruited and today we know that another two new Judges have been appointed.

Last year the single permanent Court of Appeal was set up. There has been one year of experience and the experience has been good. Sir, it is now close to three decades since our independence. The Government and Judiciary have patiently, carefully and meticulously worked towards this day when we are ready to assume our own judicial responsibilities as an independent nation. Today, the umbilical cord to the Privy Council will be finally severed.

Sir, like Mr Davinder Singh, I would like to ask the Minister to clarify on an area of concern that has been expressed by some members of the shipping and financial community and other MNCs. In the previous Judicial Committee Act, parties could agree to have their cases heard by the Privy Council prior to a hearing by the Court of Appeal in Singapore. Will today's repeal of this clause adversely affect our position as an international financial, shipping and training centre?

Sir, it is my belief that the passing of this Bill will have far-reaching implications for the legal profession. This Bill, together with the laws adopted earlier to restrict the use of Queen's Counsels to only very complicated cases, will be an added impetus to further encourage more lawyers to specialise. This will provide a pool of well-trained specialists to serve the international city that Singapore must be for the next century. I am sure that the legal profession will rise to the occasion.

Prof. Jayakumar: Mr Speaker, Sir, I thank both speakers who have spoken. Both Dr Arthur Beng and Mr Davinder Singh have raised a point about the feature which was introduced five years ago about allowing parties for civil cases to agree beforehand that they could have their appeals to the Privy Council. Does this legislation bring about a loss of confidence on the part of investors or the shipping community? I do not think so. First, as you will have noticed from my speech, in the past five years there have been only two appeals to the Privy Council. I have not had any representations put to me or to anybody else that there is alarm or concern among the shipping or commercial community.

Having said that, let me also say that obviously the feature which was introduced five years ago could not have been intended to last forever, but at some stage we would have had to do away with appeals to the Privy Council. For those in the shipping or banking community for whom it is important that the resolution of a dispute that they have under the contract be located outside Singapore, or the final decision maker on the dispute should be in England - it is always open to them still to agree and provide in the contract or other document that they can have recourse to arbitration in England. They can have a prior agreement that their dispute shall be settled by arbitration by one or more of the leading Queen's Counsels or other outstanding lawyers in England or other parts of the world.

Mr Davinder Singh has asked me on the interpretation on clause 4. I should like to point out to him that the saving provision is almost identically worded as the saving provision in the Bill enacted in 1989. In fact, the wordings are almost exactly the same. The intention is that it should cover any appeal which has actually been made, not just an appeal which has been heard or part heard. Does the saving provision also cover pending agreements even before the appeal is made? The intention is it does not cover pending agreements.

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. S. Jayakumar].

Bill considered in Committee; reported without amendment; read a Third time and passed.