STATUTES (MISCELLANEOUS AMENDMENTS) BILL

Order for Second Reading read.

The Minister of State for Law (Assoc. Prof. Ho Peng Kee): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, this Bill brings together amendments made to a number of written laws which are mainly of a procedural or administrative nature. The amendments are divided into two categories. The first deals with the exercise by the President of his statutory, non-discretionary powers on mainly routine or administrative matters. The second is a consolidation of various amendments of a procedural nature to various other written laws. Let me begin with the first category.

Sir, in 1994, a Committee was established to review the laws where references were made to the President with a view to removing matters which did not need the President's attention. The President had asked for this review as he felt that routine matters need not be brought to his attention. The Committee's recommendations are implemented in the Bill through clause 7 and the Second Schedule.

Sir, I should point out that the powers of the President which, under this Bill, will be exercisable by a Minister instead, are mainly of a routine or administrative nature. The Bill does not affect the President's discretionary powers at all. The review was carried out in consultation with the President's Office and he has agreed to the proposed changes.

By clause 7 read with the Second Schedule, various written laws are amended to allow a Minister to exercise powers currently reposed in the President in areas such as appointing operational staff, setting fees and making subsidiary legislation. Many of them are historical in origin. They are currently exercised, in any case, by the President on the advice of the Cabinet or Minister. The proposed amendments will result in a more efficient administration.

In addition, clause 3 of the Bill makes a number of amendments to the Pensions Act to enable the President to appoint one or more Pension Authorities and to delegate the routine functions to such Authorities. Such functions include approving retirement of officers on medical grounds and approving re-employment after retirement. In some instances, existing functions of the President under the Pensions Act have been transferred to Pension Authorities. These are either procedural or concern daily operations like payment of pension benefits. However, fundamental functions concerning matters such as basic eligibility to pension and quantum remain vested in the President. Hence, the Bill does not provide for, for example, the designation of pensionable services, making of regulation and fixing of pension commutation factors and discounts.

Sir, the second category of amendments in the Bill consolidates various minor changes to our written laws. These amendments have been referred to the Law Society of Singapore which agrees with them. The main amendments are:

Firstly, provisions in various laws are amended to limit the reception of English laws, practices and procedures into our legal system. At the Second Reading of the Application of English Law Bill in 1993, the Minister for Law indicated that there was a need to review our legislation to identify provisions which still import English Law and practices. The Attorney-General's Chambers have carried out this review. These amendments, set out in the First Schedule, will ensure greater certainty in our laws and put them in a local context. An example of these amendments is section 29(3) of the Legal Profession Act for which the phrase "precedence over Senior Counsel and advocates and solicitors" will replace "such priority as is customarily accorded to the holders of these offices in England" with respect to the priority accorded to the Attorney-General and Solicitor-General appearing personally in court. This amendment will place the provision in a local context and reflect current practices.

Secondly, the Interpretation Act is amended to empower an authority which has the power to prescribe fees and charges under various subsidiary legislation to also prescribe the manner or mode of payment for these fees and charges. This will facilitate the implementation of more convenient and cost saving methods, such as GIRO, to collect fees and charges. The Act is also amended to enable designated public officers to signify the exercise of powers by their Minister. Currently, only Permanent Secretaries are authorised to do so.

Thirdly, the Bill repeals and re-enacts section 37 of the Probate and Administration Act, so that intestate estates will vest in the Public Trustee instead of the Chief Justice, as is presently the case. This will avoid a situation where the Chief Justice has to be named as the defendant in a suit against the estate of a person who has died intestate. The amendment also caters for a situation where a person dies testate, but without an executor who is competent to prove his will. In such cases, his estate will also vest in the Public Trustee. This addresses problems that could arise in connection with real property transactions where there is no one who can or is willing to prove the will of a deceased property owner.

Sir, I beg to move.

Question proposed.

Mr Jeyaretnam: Mr Speaker, Sir, because of other matters which were claiming my urgent attention, I have not been able to study the various Bills that had been presented to this House and for whose Second Reading today was designated.

But I took time to look at this particular Bill, the Statues (Miscellaneous Amendments) Bill. I see the Minister of State tries to gloss over this Bill by his statement that it is purely procedural and administrative. I am not sure that it is, in all the various clauses. There are particularly two clauses which cause me somewhat alarm, and that is, clause 6. Clause 6 is not purely administrative and procedural.

Clause 6, Mr Speaker, Sir, if you look at the First Schedule, and if you look at the first Act, which is to be amended, proposes to delete the definition of "common law" and substitute the following definition:

"common law" means the common law in so far as it is in operation in Singapore and any custom or usage having the force of law in Singapore;".

As it presently stands, the definition of "common law" in the Interpretation Act is the common law of England. The explanatory note says these amendments are necessary "in order to stop the continued importation of English law, practices and procedures into the local legal system". And it says that they are a follow through of the amendments effected by the Application of English Law Act (Cap. 7A). But I have taken the opportunity to look at this Application of English Law Act which was passed in 1993. And by section 3 of that Act, it says:

"The common law of England . so far as it was part of the law of Singapore immediately before 12th November 1993, shall continue to be part of the law of Singapore."

And then by subsection 2, it is provided:

"The common law shall continue to be in force in Singapore, as provided in subsection (1), so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances may require."

At the first reading of section 3, it did not strike me, Mr Speaker, Sir, that it prevented the importation of the English common law even where it was developed after 1993. All it purported to do was to make the common law of England before 1993 part of Singapore's laws, so that it is no longer the common law, it is the Singapore law. But it did not seem to me at any rate to prevent the importation of common law developed after 1993. I understand the purport of this new Amendment, although I do not know that it clearly specifies even that, is to prevent the importation of the English common law into Singapore.

Mr Speaker, Sir, the common law is judge-made law as distinct from statutes or written law. And judges are continuously making new laws to keep apace with developments not only in their own country but abroad. The common law of England is now also the common law in a number of other Commonwealth countries, and they develop the common law as they see it. And why are we now shutting out the judges here from importing any common law that has been developed overseas, not only in Britain but other countries, from being made a part of the Singapore law?

Mr Speaker, Sir, there is so much talk about Singapore being a global city and how it has to respond to what is happening in other countries to the laws and the practices there. But this Amendment would appear now to make Singapore enter into an isolationist stage as regards the importation of new ideas in the law. Is that the intention? May that be clarified - that after the passing of this Bill, judges may not look at the common law as it was developed in England or in other countries after 1993, but we are to stick to the previous common law?

Law is not a static thing, Mr Speaker, Sir. Law continuously changes, adapts itself to the needs of the society and to the circumstances. It cannot be static. When the judges have decided that something should be done, then perhaps Parliament takes it on again and makes it part of a statute law. So I am a little alarmed at this blanket stopping of the importation of any common law, that is, common law and ideas developed by the judges overseas. The Minister of State says that it was referred to the Law Society. I, of course, was not aware of it. But was the Law Society asked to particularly address itself to clause 6 of the Bill? If they were, then I think, as a member, I have to query the Law Society Council as to what they did about it.

I would also like to know whether this particular clause was referred to the various Chambers of Commerce for their views and comments about shutting out any principles of law developed in other countries after 1993. When I say "developed", it means "developed by the judges". I remember at one time the present Senior Minister when he was then the Prime Minister saying that one of the inducements for foreign companies to come to Singapore to do business was the knowledge that the laws would be in accordance with developments in other countries because there were appeals to the Privy Council. That is no longer a route that is available. So I would like to know whether the views of the Chambers of Commerce were asked about the importation of common law into Singapore.

Finally, may I say a few words about clause 7. It seeks to transfer, as the Minister of State has pointed out, powers from the President to the Minister. I see, Mr Speaker, Sir, in the Medical Registration Bill, on which I shall not be speaking but I happened to glance at it, that the power is given to the Minister to determine the suspension of a doctor by a Health Committee and to make the Minister's decision final without any appeal therefrom. I have had occasions when I was here previously in Parliament to call attention to the danger of increasing the powers of the Ministers without any appeal or any redress given to the citizen from such decisions made by the Ministers. This was commented upon in 1926 by a committee in England which drew the dangers of giving Ministers too much power. I know the Minister of State has said in his speech that again it is purely routine and administrative. But even routine matters, Mr Speaker, Sir, can sometimes be important to the citizen. I would ask whether it is proposed, with the transfer of these powers, to provide an appeal from the Minister's decision to the courts. I think it is important that the aggrieved citizen must feel that he has a right to take a decision of the Minister, the Executive, to another independent body to question the propriety and sometimes even the merits of the decision made by the Executive. That is all I have to say, Mr Speaker, Sir.

Dr Toh See Kiat: Mr Speaker, I crave your indulgence to speak as a person who studied the law in Singapore, the USA and the UK, and who has been teaching law at the Nanyang Technological University for some time. I would like to speak on a point that Mr Jeyaretnam has mentioned about the common law.

I remember that one of the first things I learned as a first-year law student was that the common law was the common law of England as it first began, because we were a British colony and we therefore first used the laws that our colonizers imposed on us. This itself is a historical fact which is common to many countries of the Commonwealth and also the United States of America.

In America today, lawyers, professors and judges talk about the common law but, in no way, if you ask them, would they define it as the common law of England. To them, the common law is a law that is common to the jurisdiction in America, in whatever state they practise in, or in the Federal Courts that they practise in.

So the common law is the law that is common to the particular nation that is governed by that law. But it has grown from a system which was first planted in England, the concepts having been imported into the particular country using that law. So we find that countries like Canada, Australia and New Zealand too apply what they call the common law. They have also in recent years asserted their independence in this particular area because they feel that the common law that they borrowed and imported from England has to be modified and adapted to the circumstances of their own countries. So you will find that, in the past, they would have blindly followed precedents from the House of Lords and the Court of Appeal in England. But in recent years, they have deliberately and expressly departed from many English decisions. They have taken their own steps to stamp the authority on their own countries' laws.

We are a sovereign nation, Mr Speaker, Sir, and I think our judges and our Parliament have to also impose and stamp their authority on our own laws. It is necessary, of course, in doing so, we borrow from every country in the world that has got good ideas. And I think our Parliament and our judges have continued to do so. Where a system of law or the provisions of the law are unsuitable because of culture, social circumstances and so on, we need to say that this is not an idea for this country. In delinking our legal system from the English common law, we are not saying that henceforth, we will not use English precedents. I think even as a first-year law student, we were told that the English, when they brought their English common law system to Singapore, developed this idea that the English common law has to be modified and adapted to our local circumstances. And in many instances, for example, in family law, the judges who sat at those times, they were English judges, mind you, trained in England, adapted the laws of England in respect of monogamous marriage, for example, and applied it to Singapore and said that the personal law of Singaporeans would have to prevail over the system that the English courts imposed.

Delinking our legal system from the English common law system is also all the more important now because England and the United Kingdom have increasingly been importing legal provisions and laws from the European Union because of their treaty obligations and many of these are based on concepts and principles that are built on considerations which are very different from our own circumstances here in Singapore. I would urge Mr Jeyaretnam to remember that even though there are many good ideas in the English courts and the English Parliament, we must follow the examples of independent and sovereign nations like Canada, Australia and New Zealand and to rethink some of these things that should be changed.

When Mr Jeyaretnam said that this amendment would shut out the common law, I believe that is a misunderstanding because nowhere in this amendment does it say that, henceforth, no judge in Singapore should look at the English law precedents. But I think the whole concept that I learned in my first year continues to apply even now to our courts, which is that our judges can borrow ideas from anywhere in the world that they wish to, so long as they remember to adapt and modify it for our circumstances, when necessary.

Mr Jeyaretnam: Mr Speaker, Sir, may I just clarify one or two things? Mr Speaker, Sir, the last speaker, Dr Toh, with respect, has not quite followed what I was trying to say. I am not against calling the law which is applied in Singapore as common law and not as the common law of England. I am all in favour of discarding the term "common law of England" when it is applied in Singapore. What I was trying to say is that if you look at the Application of English Law Act that was passed in 1993, it made the common law as applied in England until 1993 part of the common law of Singapore. It then went on to say what was to happen to the common law developed after 1993 and the judges, I think, continued to import the English common law as developed by judges.

My question is: is this law, that is, the amendment that is proposed, intended now to stop our judges from considering the common law developed by judges after 1993 and in the future? I said it is not quite clear. Dr Toh thinks it will not, but may we know from the Minister what is the intention of the Government, whether the judges will be allowed to consider the common law of England as it now is and, of course, if it is applicable, it is suitable, to import it. I am not suggesting that every idea developed in England should be imported here, if it is not suitable for our needs.

Assoc. Prof. Ho Peng Kee: Sir, the object of today's exercise is quite simple. It is an exercise where under the name "Statutes (Miscellaneous Amendments)", we are dealing with matters which are tidying up in nature, procedural and administrative.

Mr Jeyaretnam brings up a point which really harks back to the Application of English Law Act which was debated in 1993 and, indeed, I think very eloquently put by Dr Toh See Kiat, all the reasons were canvassed at that time why we should have an Act like that so that there is certainty in the application of English Law in Singapore. If Mr Jeyaretnam will remember, maybe he has read about this doctrine of continuing reception, in the past, in so far as commercial law matter is concerned, a local court would decide an issue with respect to a commercial law matter as though an English court would have decided that issue sitting in England, and that was not satisfactory. Therefore, the Application of English Law Act was passed for certainty and indeed there was a cut-off as set out in section 3 whereby the common law of England became part of our law. That is for certainty sake, a cut-off in 1993. And amendments were also made to those statutes which are listed in the Schedule to the Act, to modify particular phrases, particular practices, so that they would apply in Singapore in the local context. And this is what this current exercise continues to do.

On the common law of England, if a judgment is made by judges in England, and if a local judge so deems it to be applicable and can be applied in a local context and if the judge applies that law, then it becomes local law. In that sense, it is not a situation where a judge in Singapore is bound by the common law. I think Dr Toh has mentioned it very clearly. We have to develop our own jurisprudence, as we have been doing all along.

Sir, it is open to the judge in Singapore, when he decides a case, should there be a doctrine or a principle enunciated by a UK judge which is applicable in the Singapore context, he can apply it. I think there is no doubt about that.

That is the first point I want to make. Very clearly, the purport of today's exercise is not to change the substantive law. And this, in fact, relates to the second point that Mr Jeyaretnam makes, because it is not a matter of transferring powers from the President to the Minister with regard to the powers set down in clause 7. The powers of the President mentioned in that clause are powers where he acts on advice. In other words, matters which would have gone up to him for his formal assent would now not go to him, because these are matters which he in fact has said that he should not be burdened with. The President has asked for this exercise himself. We had very carefully sifted through many statutory provisions - 500, in fact - and recommending only about 70 provisions where it will not go to him. So the Minister exercises the powers, and the difference here is only whether the President has sight of these matters. In the past, he would have sight of these matters and because under Article 21 of the Constitution, he acts on advice, he will say yes. Now, the point is that they would not go up to him.

Sir, it is not a matter of powers being transferred or whether there is a need for further appeal. It is a tidying up exercise where because of the nature of these powers, he will not have sight of the decision by the Minister. I think we have to see this exercise in this context. It is not an exercise to pull wool over anybody, even though it is "Statutes (Miscellaneous Amendments) Bill". We do not do this in the normal course of events. But here 70 statutes are involved which cover many provisions. If we were to amend each of them individually, it would be very taxing on parliamentary time. And in view of the nature of these amendments which are procedural and administrative, this is the approach we have taken.

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. - [Assoc. Prof. Ho Peng Kee].

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