LEGAL SYSTEMS AND METHODOLOGY SUMMARY

Transcription

1 LEGAL SYSTEMS AND METHODOLOGY SUMMARY LAWSKOOL SINGAPORE

2 Table of Contents 1.SINGAPORE LEGAL HISTORY INTRODUCTION LEGAL HISTORY ROLE OF LAW IN NATION BUILDING Protection of civil society Stability provided by the law ROLE OF LAW IN ECONOMIC DEVELOPMENT Introduction Current Approach of the Law Future Role of the Law in Economic Development Conclusion on the Role of Law in Economic Development RECEPTION AND APPLICABILITY OF ENGLISH LAW GENERAL RECEPTION OF ENGLISH LAW (BEFORE ENACTMENT OF APPLICATION OF ENGLISH LAW ACT IN 1993) SPECIFIC RECEPTION OF ENGLISH LAW DIFFICULTIES IN SECTION 5 OF THE CIVIL LAW ACT APPLICATION OF ENGLISH LAW ACT (CAP 7A) SOURCES OF LAW WRITTEN LAW UNWRITTEN LAW DOCTRINE OF STARE DECISIS INTRODUCTION SINGAPORE S POSITION ON STARE DECISIS DOING CASE BRIEFS SAMPLE CASE BRIEF PARLIAMENT AND LAW-MAKING FUNCTIONS OF PARLIAMENT INFORMATION ON OUR PARLIAMENT WHY BICAMERAL (2 CHAMBER HOUSE) REJECTED IN 1954 (BY RENDEL COMMISSION)? ADMINISTRATION OF PARLIAMENT PARLIAMENTARY COMMITTEES EXECUTIVE: ELECTED PRESIDENCY INTRODUCTION HISTORY OF ELECTED PRESIDENCY RATIONALE FOR THE ELECTED PRESIDENCY (EP) An overview of his proposed roles: Why? What is at stake? POWERS OF THE ELECTED PRESIDENT Role of Elected President: The fiscal powers of the Elected Presidency JUDICIAL SYSTEM LEGAL PROFESSION LAW SOCIETY: BOARD OF LEGAL EDUCATION: FUNCTION AND PURPOSE ACADEMY OF LAW:PURPOSE LIBERALISATION OF THE LEGAL SERVICES SECTOR...30 lawskool.com.au Page 2

3 10.1 BENEFITS: PROPOSALS TO LIBERALIZATION: DISCIPLINARY PROCEEDINGS AGAINST LAWYERS COMPLAINT OF PROFESSIONAL MISCONDUCT UNDER SECTION 85(1) LEGAL PROFESSION ACT SINGAPORE AND INTERNATIONAL LEGAL ORDER WHY IS IT IMPORTANT FOR SINGAPORE LAWYERS TO UNDERSTAND OTHER LEGAL TRADITIONS AND LEGAL CULTURES? LEGAL CULTURES LEGAL CULTURE IN SINGAPORE LEGAL PLURALISM Legal Pluralism in Singapore CONFLICT/INCONSISTENCY BETWEEN INTERNATIONAL AND DOMESTIC LAW Dualist v Monist Theory JUDICIAL INDEPENDENCE INTRODUCTION DEFINITION OF JUDICIAL INDEPENDENCE (JI) INDEPENDENCE FROM THE EXECUTIVE INDEPENDENCE FROM THE LEGISLATURE INDEPENDENCE FROM THE MEDIA INDEPENDENCE FROM LAWYERS AND LITIGANTS INDEPENDENCE OF PERSONAL BIAS INDEPENDENCE OF JUDGES TO CARRY OUT JUDICIAL ADMINISTRATION ADVANTAGES AND DRAWBACKS OF AN INDEPENDENT JUDICIARY JUDICIAL INDEPENDENCE IN SINGAPORE STATUTORY INTERPRETATION LITERAL RULE THE MISCHIEF RULE THE GOLDEN RULE STATUTORY INTERPRETATION IN SINGAPORE Purposive Approach: S 9 A LEGISLATIVE MATERIALS AS EXTRINSIC AIDS CASE ANALYSIS CASE BRIEFS PRE-DONOGHUE ERA Langride v. Levy Longmeid v. Holliday George v. Skivington Heaven v. Pender Donoghue v. Stevenson...50

4 Cases AG v. Blake Article Chen Hsin Hsiong v. Guardian Royal Exchange Assuarance Donoghue v. Stevenson... 14, 44 Fletcher v. Rylands (1866) L.R. 1 Ex. 265, Exchequer Chamber George v. Skivington HEAVEN v. PENDER Langride v. Levy Longmeid v. Holliday Nguyen Tuong Van v PP (2005) PP v. Manogaran s/o R Ramu[1997] 1 SLR Statutes Accountants Act...13 Adoption of Children...13 Application of the English Law Act (Cap 7A, 1994 Rev Ed)...11 Article 152(2)...37 Article Article Article Electronic Transaction Act...10 Employment Act...7 Legal Profession Act...28 Part IV of the Constitution...7 Section 75B Legal Profession Act...31 Section 9A of Evidence Act...40 Supply Act...26 Women s Charter...7 Work Injury Compensation Act...7

5 1. Singapore Legal History 1.1 Introduction The foundation of the Singapore legal system is English in origin, that is largely based on the British Westminster model, where the power to govern and administer the country is divided between the Executive, the Legislature and the Judiciary. 1.2 Legal History o Sir Thomas Stamford Raffles of the British East India founded Singapore Company in This is recognized as the starting point of Singapore s modern legal System. That year, Raffles established Singapore as a trading post. Singapore then was largely uninhabited. In 1824, the Sultan of Johor and Temenggong ceded Singapore to the British. The British East India Company thereby acquired full sovereignty in perpetuity over Singapore. Apart from Singapore, Penang and Malacca were also in the possession of the British East India Company. Malacca and Singapore were placed under the Bengal Presidency, while Penang was a separate Presidency. In 1826, an English Act of Parliament6 was passed to enable the Crown to make provision for the administration of justice in Singapore and Malacca. It also empowered the Directors of the British East India Company to declare Singapore and Malacca to be annexed to Penang and to be part of that settlement. Singapore and Malacca were thereby united with Penang to form the separate Presidency of the Straits Settlements. In 1829, the Directors decided to abolish the Straits Settlements Presidency and bring the three territories under the control of the Bengal Presidency. In 1830, the Straits Settlements became subject to the Bengal Presidency. In 1858, the British East India Company was abolished and the Straits Settlements came under the new Indian Government. Singapore was made the administrative centre. The Straits Settlements remained largely under the India Office until 1867.

6 o In 1867, by an Order in Council made under the Government of the Straits Settlements Act, the Straits Settlements was separated from the Government of India. The Straits Settlements were transferred to the Colonial Office in London and became a Crown Colony. o Japanese Occupation ( ) February September 1945: The Japanese Occupation of Singapore. Singapore was renamed Syonan (Light of the South) and operated under the dictates of the Japanese military administration. The end of the Second World War resulted in the temporary administration of Singapore by the British Military Administration. By this time, the imperial powers encouraged and promoted self-determination and decolonization. o By the Straits Settlements Repeal Act 1946, the Straits Settlements were disbanded in Singapore was established as a separate Crown Colony vested with a constitution of her own. Penang and Malacca were united with the Federated Malay States and the unfederated Malay states to form the Malayan Union. In 1948, the Federation of Malaya replaced the Malayan Union. In 1959, Singapore achieved internal self-government and the colony became the State of Singapore. In 1963, Singapore merged with Sarawak, North Borneo and the existing states of the Federation of Malaya to form the Federation of Malaysia. Singapore s membership in the Federation of Malaysia was, however, a short one. In 1965, political differences led to Singapore s expulsion from the Federation and on 9 August 1965, Singapore became an independent republic.

7 1.3 Role of Law in Nation Building Protection of civil society The basic function of law is to protect the rights of the citizens as the state s role is only declaratory it is incapable of creating human rights by law/convention and can only confirm their existence and provide protection. The protection of personal liberties (e.g. freedom of speech, expression, religion, rights to education) is provided in Part IV of the Constitution. Special provisions are made for those most in need of protection such as women, through charters such as the Women s Charter. The law reflects and regulates societal values, preserving and promoting desirable societal and moral values i.e. Singapore s national value of the family as the basic unit of society. It aids society in the speedy, efficient and just resolution of disputes. To date, substantial reforms have been made to the civil and criminal procedure such as electronic filing of court documents to expedite the process. Structural reforms have also been put into place for alternative, non-litigious dispute resolutions. These include the Small Claims Tribunal, Primary Dispute Resolution Court and Community Mediation Centres (CDCs). Law acts as a means through which social discipline is instilled amongst people, and this is done through criminal law. However, much emphasis is placed on social discipline in Singapore s workforce, given Singapore s economy s dependence on its human capital. Labour legislation ensures this is achieved and it includes the Employment Act (linking the government, employers and employees).the Employment Act and the Work Injury Compensation Act also protect foreign workers Stability provided by the law Criminal law: Primary need for a growing nation is to secure law and order Utilitarian approach - All measures are justified by their effectiveness in dealing with crime - No assurance that the innocent won t be ensnared - Moral discourse in Singapore is not prominent in decision-making regarding criminal justice

8 Drift-net crimes - Very broadly defined offences - Increases discretion of police and prosecutors to choose when to enforce the law - May lead to abuse of authority and violation of the right to proportionate punishment - Broadly drafted offences exist in Singapore, but they are not the norm Reforming the adversarial system - Shift much of the fact-finding process and decision-making from judges and trials to police and prosecutors at pre-trial stage - Right to counsel exists, subordinated to the needs of police investigation - Right to silence not constitutional right; silence is construed negatively against accused - Presumption of innocence is moved to a stage earlier, before the administrative decision that the accused is guilty - With such efficiency comes deterrence Capital and corporal punishment - Use extends beyond traditional crimes which attracted these penalties - Critics argue this violates the right to proportionate punishment and right against cruel or unusual punishment - Moral cost of using harsh punishment is considered by government to be outweighed by the gains in deterrence and incapacitation 1.4 Role of Law in Economic Development Introduction Necessary foundation for the promotion of business. Establishment and implementation of a fair, predictable and transparent set of rules is vital to business formation, drawing of foreign investments, and the acquisition and protection of property, thereby facilitating economic growth and nation building.

9 To maintain business and investor confidence, the familiar English common law was retained in commercial matters. Effectiveness of the legal system and administration of law is vital as businessmen would not invest in a corrupt country. Laws need to be continually changed to keep pace with globalization, trade liberalization, and technological advancements Current Approach of the Law 1. To view legal and judicial system as essential not only for our people s security and welfare, but also critical for economic growth and competitiveness o Existence of an efficient, competent and fair legal system Critical for business and investor confidence o Govt working towards creating a speedy, efficient and just system for the resolution of disputes Revamp and reform traditional ct processes Create comprehensive case management system Control pace of litigation ADR Utilising technological advances 2. Uncompromising Approach in maintaining Law, Order and Security/Law as Social Discipline Law and order and safe environment also helps attract investors Strong commitment to social discipline would attract foreign investors E.g. Labour legislation

10 1.4.3 Future Role of the Law in Economic Development 1) Prepare legal infrastructure for knowledge-based economy and global trade o Problem: Legal prescription lags behind the development of e-commerce and cyber-trading o S pore s Solutions: Enacted legislation to protect those in the computer industry and whose IPRs have to be secured Amendments to Copyright Act Electronic Transaction Act Computer Misuse Act Change in Bankruptcy Laws Conclusion on the Role of Law in Economic Development o The trends of globalisation, enabled by advances in communication technology, require the law to be both facilitative, as well as protective. The challenge for a Singapore that wants to be an active part of this global economy is to put in place a law reform mechanism that would allow us to monitor developments on a global basis and to effect changes to the law quickly. To order the complete version of the lawskool Legal Systems and Methodology Summary please visit