Chapter 3

Legal Processes and Institutions

3.1 Introduction

3.2–3.3 The Constitution and the Three Governing Arms

3.4–3.8 The Legislature

3.9–3.11 The Parliamentary Law-making Process

3.12–3.15 The Executive

3.16 The Judiciary

3.17–3.19 The Common Law Tradition
3.20–3.28 The Doctrine of Judicial Precedent
3.29 Common Law and Other Legal Concepts
3.30–3.31 (1) Common law versus equity
3.32 (2) Common law versus written law
3.33–3.35 (3) Civil law tradition versus common law tradition
3.36 (4) Civil law versus criminal law
3.37–3.49 The Court Structure and Hierarchy in Singapore
3.50 Technology and the Courts
3.51–3.53 Interpretation of Written Law

3.54–3.61 The Legal Profession, Legal Education and Other Professional

Bodies

3.62 Conclusion
 Principles of Singapore Business Law

INTRODUCTION
3.1 Following a brief historical sketch of the Singapore legal system in Chapter 2,
this chapter seeks to provide a contemporaneous and positivist account of the
process of law-making, its implementation and adjudication by the various legal
institutions and bodies in Singapore. Apart from exploring the structure, com-
position and functions of these legal institutions, we will also briefly examine in
the last section legal education and the legal profession, as well as other related
professional bodies in Singapore. As the alternative dispute resolution mecha-
nisms have already been discussed in Chapter 2, they will not be pursued here.

THE CONSTITUTION AND THE THREE GOVERNING ARMS

3.2 Let us begin with the most fundamental legal document within the Singapore
legal system — the Constitution. The Constitution is the supreme law of
Singapore. Article 4 of the Constitution provides that any law enacted by the
Legislature after the commencement of the Constitution that is inconsistent
with the Constitution shall, to the extent of the inconsistency, be void.
Consistent with the hallmark of constitutional supremacy, it “breathes” life
into the three main arms of the state, viz, the Legislature (the Parliament), the
Executive (the Government) and the Judiciary, and at the same time, delineates
their respective powers, roles and responsibilities within the legal system. Accord-
ing to the Constitution, the main role of the Legislature is to enact written
laws, the Executive to implement and enforce the laws and the Judiciary to
adjudicate disputes between the litigating parties based on its interpretation
of the laws (see Figure 3.1).

CONSTITUTION

Executive Legislature Judiciary

Elected President Executive Supreme Court
(Head of State)
+ + +
Prime Minister Members of Subordinate Courts
(Head of Government Parliament
and Cabinet)
Implements and Law-making body: Adjudicates disputes
enforces the Makes written law between litigants.
enacted laws = Parent legislation Judges’ decision
(and promulgates = Statute = Case law
subsidiary legislation) = Act of Parliament

Figure 3.1 The Constitution and the three governing arms of State

42
 Chapter 3: Legal Processes and Institutions

3.3 Apart from imposing duties on the above legal institutions, the Constitution
entrenches certain fundamental rights, such as the freedom of religion,
freedom of speech and equal protection under the law. These individual rights
are not absolute but qualified by public interest such as the maintenance
of public order, morality and national security. In addition to the general
protection of racial and religious minorities, the special position of Malays,
as the indigenous people of Singapore, is constitutionally mandated. The
provisions of the Constitution may be amended by the votes of two-thirds
of the total number of elected Members of Parliament. As and when Article
5(2A) of the Constitution comes into force, the specific constitutional
amendments seeking to amend the provisions on fundamental liberties will
require, in addition, at least two-thirds of the total number of votes cast by
the electorate in a national referendum.

THE LEGISLATURE
3.4 The Legislature serves as the major law-making body in Singapore. It
comprises the elected President and the Parliament. The law-making
machinery operates via a unicameral (single-house) system. The Singapore
Parliament, as the embodiment of representative democracy, consists of the
Members of Parliament (“MPs”) and the parliamentary proceedings are
presided over by the Speaker of Parliament.

3.5 The elected MPs are drawn from candidates who have won in the general
elections held every four to five years. Following the recent general elections
in 2011, the composition of the Parliament continues to be dominated by
the ruling People’s Action Party (“PAP”) with a total of 81 seats whilst the
opposition Workers’ Party holds six seats. The elected MPs are drawn from a
combination of single-member constituencies as well as Group Representation
Constituencies (“GRCs”).

3.6 According to the Constitution, each GRC consists of three to six members,
at least one of whom must be of a minority race. One official aim of the
GRC scheme was to entrench multi-racialism in Singapore politics. This
GRC scheme is, in practice, tied to the establishment of Town Councils,
whose role is to manage the housing estates under the Housing &
Development Board at the local level. A Town Council is usually formed
from a grouping of constituencies under the GRC scheme. Candidates who
have won in the general elections via the GRC ticket have often banded

43
 Principles of Singapore Business Law

together to form a Town Council in order to achieve greater economies

of scale.

3.7 In contrast to the elected MPs, the non-elected MPs do not enjoy voting
rights on constitutional amendments, money bills and votes of no-
confidence in the Government. They consist of two separate categories: the
Non-Constituency Members of Parliament (“NCMPs”) and the Nominated
Members of Parliament (“NMPs”). To offer an alternative political voice in
Parliament, NCMPs are appointed from the candidates who have polled the
highest percentage of votes amongst the “losers” in the general elections, up
to a maximum of nine NCMPs. The actual number of NCMPs will be nine
minus the total number of opposition MPs elected to Parliament (s 52(1)
Parliamentary Elections Act (Cap 218, 2001 Rev Ed)). Following the 2011
general elections, three NCMPs (Yee Jenn Jong and Gerald Giam Yean Song
from the Workers’ Party as well as Lina Loh Woon Lee from the Singapore
Peoples’ Party) were appointed. The NMPs, on the other hand, are non-
politicians who have distinguished themselves in public life and have been
nominated to provide a greater variety of non-partisan views in Parliament.
The Constitution stipulates that NMPs shall not exceed nine in number.
The 12th Parliament comprises nine NMPs who took their oath of office on
14 February 2012.

3.8 For the purposes of providing a more in-depth discussion of specific public
issues or Bills, the Select Committee, whose members are nominated by
the MPs, scrutinises legislation and submits reports on its findings to the
Parliament. One example of such a Select Committee hearing concerned the
constitutional amendments on the establishment and roles of the Elected
President (“EP”) in 1990. The Government Parliamentary Committees,
formed at the initiative of the PAP and drawn exclusively from the PAP,
focus on specific or specialised topics (such as education or transport) with
a view to engendering greater debate in Parliament.

The Parliamentary Law-making Process

3.9 The law-making process begins with a Bill, normally drafted by the
Government legal officers. Private member’s Bills are rare in Singapore. One
exception was the private member’s Bill initiated by NMP Walter Woon in
1994 which eventually led to the enactment of the Maintenance of Parents

44
 Chapter 3: Legal Processes and Institutions

Act (Cap 167B, 1996 Rev Ed). Subsequent amendments to the Maintenance
of Parents Act were made in 2010 in order to emphasise conciliation and
streamline the processes for claiming maintenance and enforcing maintenance
orders pursuant to a Bill tabled by MP Seah Kian Peng and a group of
ten MPs (at http://app1.mcys.gov.sg/MCYSNews/AmendmentstoMPAPassed.
aspx).

The Bill is initially introduced in Parliament at the First Reading. During

the Second Reading, the Ministers usually outline the objectives of the Bill,
defend the Bill and answer queries raised by the backbenchers. The Speaker
of the Parliament is tasked to regulate the proceedings and enforce the
Standing Orders of Parliament. The MPs may, in some cases, decide to refer
the Bill to a Select Committee for scrutiny. If the report is favourable or the
proposed amendments to the Bill are approved by the Parliament, the Bill is
accepted by the Parliament at the Third Reading and is passed.

3.10 The Presidential Council for Minority Rights (“PCMR”), established under
the Singapore Constitution and presently chaired by the Honourable Chief
Justice, has been tasked, except for certain exempted Bills, to scrutinise
Bills for any measures which may be disadvantageous to persons of any
racial and religious communities without being equally disadvantageous
to persons of other such communities, either by directly prejudicing persons
of that community or indirectly by giving advantage to persons of another
community. If the report of the PCMR is favourable or a two-thirds majority
in Parliament has been obtained to override any adverse report of the PCMR,
the Bill proceeds, as a matter of course, for the assent by the EP.

3.11 Upon the assent by the EP, the Bill is formally enacted as “written law”. The
legislation does not, however, come into force until the date of its publication
in the Government Gazette or the commencement date specified in the
legislation or the Gazette notification (s 10 Interpretation Act (Cap 1, 2002
Rev Ed)). The enacted law is known as primary or parent legislation (or
an Act of Parliament). An Act of Parliament may stipulate that a particular
Ministry or agency has powers to promulgate subsidiary legislation to
implement the statutory provisions, provided such subsidiary legislation is
not inconsistent with the Act of Parliament. The subsidiary legislation is
usually published in the Government Gazette.

45
 Principles of Singapore Business Law

THE EXECUTIVE
3.12 The Executive consists of the EP and the Cabinet in whom executive
powers are vested. The head of the Executive is the EP, who is currently his
Excellency President Tony Tan Keng Yam. He was appointed following the
2011 presidential elections. The qualifications for the presidential office are
fairly stringent. Apart from integrity, good character and other requirements,
the presidential candidate must have held one of the following positions for
not less than three years:

° as a Minister, Chief Justice, Speaker of Parliament, Attorney-General,

Chairman of Public Service Commission, Auditor-General, Accountant-
General or Permanent Secretary;

° as chairman or chief executive officer of a statutory board;

° as chairman of the board of directors or chief executive officer of a

company with a paid-up capital of at least S$100 million; or

° a “similar or comparable position of seniority and responsibility” in an

organisation or department of equivalent size or complexity (whether in
the public or private sector) which has given him or her the requisite
experience and ability in managing financial affairs so as to handle the
responsibilities of the job of the EP.
The Presidential Elections Committee has been set up to ensure the
requirements are adhered to. The EP is elected for a six-year term. He or she
shall act in accordance with the advice of the Cabinet in discharging the EP’s
constitutional functions except in specified areas. The areas in which the EP
may act in his discretion are as follows:

° the veto against the government’s attempts to draw on past reserves (eg,
in relation to a guarantee or loan given or raised by the government
and the budgets of specified statutory boards and government companies
that draw on past reserves);

° the appointment of the Prime Minister, specified constitutional appointees

(eg, the Chief Justice and the Attorney-General) and other key civil
service appointments (eg, Commissioner of Police);

° the concurrence with the Director of Corrupt Practices Investigation

Bureau to make any inquiries or to carry out any investigations into
any information received by the Director, notwithstanding the Prime
Minister’s refusal to consent;

46
 Chapter 3: Legal Processes and Institutions

° the withholding of concurrence to the detention of persons under the

Internal Security Act (Cap 143, 1985 Rev Ed);

° the exercise of certain powers pertaining to restraining orders made

under the Maintenance of Religious Harmony Act (Cap 167A, 2001 Rev
Ed) where the Cabinet’s advice is contrary to that of the Presidential
Council for Religious Harmony.
There are also counter-checks on the presidential discretion (eg, Parliament
overruling, via a two-thirds majority of the total number of elected MPs, the
presidential decision in certain instances). In discharging certain specified
constitutional functions, the President is required to consult the Council of
Presidential Advisers, a body set up under the Singapore Constitution. In
other cases, the Elected President may in his discretion consult the Council
of Presidential Advisers.

3.13 The Cabinet, consisting of Ministers under the helm of the Prime Minister
(currently Lee Hsien Loong), is collectively responsible to the Parliament
under the Westminster system. The Prime Minister is someone appointed
by the EP who, in the latter’s judgment, is likely to command the confidence
of the majority of the MPs. There is no complete separation of powers
between the Executive and Legislature in Singapore. In terms of composition,
members of the Cabinet are typically drawn from the MPs. Parliamentary
Secretaries are further appointed from amongst the MPs to assist the
Ministers. Moreover, as mentioned above, the Ministers and the relevant
Government agencies possess some “law-making” powers in the promulgation
of subsidiary legislation in order to implement the parent legislation passed
by the Parliament.

3.14 Each Minister is usually responsible for all government matters pertaining
to one or more portfolios (such as education or trade and industry). In
Parliament, the responsible Minister will have to justify the policies
implemented by his or her Ministry, and is thus accountable to the
Parliament. For the purposes of this chapter, one significant Ministry
which should be mentioned is the Ministry of Law, which comprises the
statutory boards of the Intellectual Property Office of Singapore and the
Singapore Land Authority. Some important departments and bodies under
the responsibility of the Ministry of Law include the Legal Aid Bureau,
Insolvency and Public Trustee’s Office, Appeal’s Board (Land Acquisition)
and the Copyright Tribunal.

47
 Principles of Singapore Business Law

3.15 The Government is advised and represented by the Attorney-General and

the Solicitor-General in both civil and criminal matters. The Attorney-
General possesses wide prosecutorial discretion, that is, to institute, conduct
or discontinue any proceedings for any offence (Article 35(8) Constitution).
The prosecutorial discretion is not absolute or unfettered but subject to
constitutional provisions on fundamental rights of the individual (Law
Society of Singapore v Tan Guat Neo Phyllis (2008)). However, the Attorney-
General is not obliged to disclose the reasons for his prosecutorial decision in
a particular case (Ramalingam Ravinthran v The Attorney-General (2012)).

The Attorney-General is appointed by the EP if the latter, acting in his or her

discretion, concurs with the advice of the Prime Minister. The Honourable
Attorney-General Steven Chong was appointed with effect from 25 June 2012.
There are also special divisions within the Attorney-General’s Chambers
(www.agc.gov.sg) dealing specifically with the drafting of legislation, law
reforms, economic crimes and international affairs. The Attorney-General’s
Chambers is staffed by State Counsel and Deputy Public Prosecutors who
belong to the Singapore Legal Service.

THE JUDICIARY
3.16 The primary role of the courts in Singapore is to adjudicate disputes
between the litigating parties and serve as an independent check on the
Legislature and the Executive within the adjudicative process. The Judiciary
is empowered, for instance, to review the constitutionality of legislation as
well as to review the decisions and actions of administrative authorities.
As stated by the Court of Appeal (at [86]) in Chng Suan Tze v Minister of
Home Affairs and others and other appeals (1988), “the notion of a subjective
or unfettered discretion is contrary to the Rule of Law. All power has legal
limits and the Rule of Law demands that the courts should be able to
examine the exercise of discretionary power.”

According to the Constitution, judicial power is vested in the judges of the

Supreme Court and the Subordinate Courts. The judge is the sole arbiter
of both facts and the law, the jury system having been entirely abolished
in Singapore since 1970. In the course of adjudication, the judge would
be required to interpret and apply various sources of law such as the
Constitution, legislation and prior court decisions in order to distil the legal
rule or principle to be applied to the particular facts of the case.

48
 Chapter 3: Legal Processes and Institutions

Box 3.1

Reflecting
What is your verdict on the jury system?
on the law

Some of the common criticisms of the jury system are as follows:

• Juries tend to decide on legal liability or conviction based on prejudiced or
stereotypical views and/or moral opinions.
• There is a danger that juries may be overly influenced by a lawyer’s glib
tongue.
• The lack of availability of competent jurors.
• The costs in instituting and maintaining the jury system.

On the other hand, supporters of the jury system and trials have raised the following
arguments:
• The right to jury trial should be regarded as a significant human liberty.
• Jury trials are important in directly involving the ordinary man in the
administration of justice.
• The “strength in numbers” argument: for very serious offences such as
capital offences, the legal system should be slow to convict an accused
based on the decision of one single judge, as compared to the majority
decision of the jury panel.

Question: Do you think there should be a right to jury trial in the first place? If so, to
what extent, if at all, should there be restrictions to the right to jury trial?

The Common Law Tradition

3.17 Under the common law tradition, the judge is required to consider the
relevance and effect of previous court decisions in order to decide the
outcome of the case in accordance with the doctrine of judicial precedent.
The common law tradition is one of the major legal traditions in the
world, apart from the civil law, socialist and other religious legal traditions.
Singapore has its roots in the English common law tradition and enjoys
the concomitant advantages of stability, certainty and internationalisation
of the British system. Whilst Singapore shares with countries such as India,
Malaysia, Myanmar and Brunei the English common law roots, the actual
application and workings of the traditions will vary in each country.

3.18 Historically, the English common law tradition arose out of a need for
England to develop laws to be applied equally to litigants in similar disputes.
As a result, assize and later, circuit judges, who were sent to various parts

49
 Principles of Singapore Business Law

of England to adjudicate disputes, applied the same laws to the resolution

of the disputes before them. Further, these laws would be the same (or at
least similar) regardless of the provinces or geographical areas in which the
disputes took place. As a result, a “common” law developed throughout the
whole of England.

3.19 The strong influence of the English common law on the development of
Singapore law is generally more evident in certain traditional common law
areas (such as contract, tort and restitution) compared to other statute-
based areas (such as criminal law, company law and the law of evidence).
With respect to the latter, other jurisdictions such as India and Australia
have influenced the approach towards and interpretation of these statutes.
However, the Singapore courts have, in recent times, significantly departed
from the English common law in specific areas such as in the law of contract
and torts. There is now a greater recognition of local jurisprudence in the
development of the common law in Singapore.

The Doctrine of Judicial Precedent

3.20 The doctrine of judicial precedent is integral to a common law jurisdiction
such as Singapore. The doctrine of judicial precedent (also known as
stare decisis, which means “standing decision”) requires judges to abide
by the previous decisions made by the superior courts within the court
hierarchy.

3.21 The doctrine promotes firstly uniformity and consistency of decisions within
the court hierarchy as judges are not permitted to reach a decision in
a dispute based merely on his or her whim or fancy, but on prior court
decisions. Second, the resulting uniformity and consistency also lend a
measure of certainty to the law for potential litigants. Third, the doctrine is
consistent with the respect accorded to the hierarchy within the court system,
which is usually based on the experience and seniority of the judges.

3.22 How is a judicial decision reached? A judicial decision is simply a conclusion

that resolves a legal dispute; such a conclusion is invariably based on a legal
principle applied to the particular facts of the dispute. For instance, the
legal principle may be that “a man who commits a criminal act cannot profit
from the criminal act”. The facts of the dispute are that X has committed
a criminal act and seeks to recover the “rewards” obtained from the

50
 Chapter 3: Legal Processes and Institutions

commission of the criminal act. Hence, the judge may, applying the legal
principle to the facts of the case, conclude that X shall not be entitled to
recover the “rewards”.

3.23 Where it is apparent from the conclusion of the judge as to the legal
principle(s) upon which the conclusion of the case is based, we refer to such
a legal principle as the ratio decidendi (or “the reason for the decision”).
Hence, in the above example, the legal principle that “a man who commits a
criminal act cannot profit from the criminal act” is the ratio decidendi for the
decision of the judge to disallow recovery by X. Obiter dictum, on the other
hand, means a statement “made by the way” (or, if you like, a “peripheral” or
an “incidental” statement). Obiter dictum refers to a legal principle or judicial
statement that is not directly applied to arrive at the outcome in a case.

3.24 The determination of the ratio decidendi and the obiter dictum can be
significant. If the particular legal principle or statement in a previous
decision is regarded as ratio decidendi, then the judge has to abide by
the ratio decidendi of the prior decision, assuming that the previous
decision is made by a higher court within the court hierarchy. In legal
parlance, we say that the ratio decidendi in the previous decision by a
higher court is “binding” on a lower court. If, however, the legal principle
in a previous decision is merely regarded as obiter dictum, the judge is not
required to apply the obiter dictum in the present case, even if the previous
decision is made by a higher court within the hierarchy. In legal parlance,
we say that the obiter dictum is merely “persuasive”, and is not binding on
the judge.

3.25 The doctrine of judicial precedent applies only to court decisions within the
same court hierarchy. Hence, prior court decisions from England and foreign
Commonwealth jurisdictions (such as Australia, Malaysia, India, Brunei and
Canada) are not binding on Singapore courts. In practice, however, Singapore
courts do treat relevant decisions from English and such Commonwealth
courts as “persuasive”, though not “binding”. For instance, decisions from
the UK Supreme Court (formerly the House of Lords in England) and the
High Court of Australia respectively are generally “persuasive” precedents for
Singapore judges adjudicating a similar dispute.

3.26 A situation may arise where the facts in the previous decision upon which
the ratio decidendi is based may be materially different from those in the

51
 Principles of Singapore Business Law

present case. Hence, the judge may regard the facts in the prior decision as
being so materially different that the ratio decidendi of that previous decision
should not be followed or applied in the present case. In legal parlance,
we say that the judge has “distinguished” the prior decision from the
present case.

3.27 In summary, under the doctrine of stare decisis, the ratio decidendi contained
in the previous decision by a higher court binds the judge in his or her
adjudication of the present dispute. However, the doctrine does not apply to
bind the judge where:

° the facts of the present dispute can be materially “distinguished” from

the facts in the previous decision of the higher court so as to render the
ratio decidendi of the previous decision inapplicable; or

° the legal principle embodied in the previous decision of the higher court
and sought to be applied to the dispute at hand was merely obiter dictum,
and hence not binding on the lower court.

3.28 The proper functioning of the doctrine of stare decisis depends on the
publication of judicial precedents in a form accessible to the courts,
lawyers and perhaps even laypersons. Hence, law reports containing prior
court judgments are vital for the development of the common law in
Singapore. Currently, the Singapore Law Reports is the main law reporter for
Singapore. This was first published in 1992; prior to that, reports of
local cases were published in the Malayan Law Journal since 1932. The
judgments of the Singapore courts can also be accessed via LAWNET
subscription at www.lawnet.com.sg. Recent judgments of the Supreme
Court and the Subordinate courts can also be accessed free of charge
at Singapore Law Watch (at http://www.singaporelawwatch.sg/slw/index.
php).

Common Law and Other Legal Concepts

3.29 To avoid confusion, we should note that the term “common law” may
be used as a contrast to or comparison with other legal concepts such
as equity, written law, the civil law tradition and criminal law. For
completeness, we also discuss the differences between civil and criminal laws
in para 3.36.

52
 Chapter 3: Legal Processes and Institutions

(1) Common law versus equity

3.30 Historically, in England, equity as a body of principles of fairness or justice
was employed by the courts to ameliorate the defects or weaknesses inherent
in the rigid common law system. In order for a claimant to bring a claim
under the common law in England, he or she had to file a form known
as a “writ” in the English courts according to rigid prescriptions. A case
which could not fit into the inflexible categories under the writ was thus
thrown out. This meant that the claimant had no remedy. Hence, the
Lord Chancellor was tasked to provide new writs to cover claims which
could not fit into the rigid categories under the then prevailing common law
writs. Despite initial complaints about the perceived abuses of discretionary
power conferred on the Lord Chancellor, the rules and practices of equity
utilised by the Chancery Courts gradually became more formalised and
institutionalised.

3.31 According to the Singapore Civil Law Act (Cap 43, 1999 Rev Ed), the
Singapore courts are empowered to administer the common law as well as
equity concurrently. The practical effect is that a claimant can seek both
common law remedies (damages) and equitable remedies (injunctions and
specific performance) (see Chapter 18) in the same proceedings before the
same court. It should also be noted that equity has played a decisive role
in the development of specific doctrines in the law of contract, including
the doctrines of undue influence (see Chapter 14) and promissory estoppel
(Chapter 8).

(2) Common law versus written law

3.32 The concept of “common law” can also be contrasted with the notion of
“written law”. In Singapore, “written law” refers to the Constitution, Acts
and subsidiary legislation, whilst “common law”, in this context, refers to
judge-made law or case law. The written laws of Singapore can be accessed
either via the website of the Attorney-General’s Chambers (www.agc.gov.sg)
or via LAWNET (http://www.lawnet.com.sg). The law-making process by the
Legislature has been discussed in paras 3.9–3.11.

(3) Civil law tradition versus common law tradition

3.33 The common law system in Singapore bears material differences from that
in some Asian countries which have imbibed the civil law tradition (the

53
 Principles of Singapore Business Law

People’s Republic of China, Vietnam and Thailand) or those with a mixture

of civil and common law traditions (the Philippines).

3.34 Firstly, the civil law systems generally place relatively less weight on prior
judicial decisions and do not abide by the doctrine of stare decisis, unlike the
common law system as described in paras 3.20–3.28. Second, the common
law courts of Singapore generally adopt an adversarial approach in litigation
between the disputing parties, whilst the civil law judges tend to take a more
active role in the finding of evidence to decide the outcome of the case.
Third, whilst numerous legal principles have been developed by common
law judges, civil law judges are more reliant on general and comprehensive
written codes governing a wide spectrum of areas.

3.35 Having said that, the divergence between the common law and civil law
systems is now less marked than in the past. Common law jurisdictions have,
for instance, embarked upon legislative programmes to fill the perceived gaps
of the common law. In this regard, Singapore has enacted various statutes to
govern many specific areas of law, such as the Contract (Rights of Third
Parties) Act (Cap 53B, 2002 Rev Ed), Competition Act (Cap 50B, 2006 Rev
Ed), Consumer Protection (Fair Trading) Act (Cap 52A, 2009 Rev Ed) and
Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed).

(4) Civil law versus criminal law

3.36 A criminal case is prosecuted by the State against the accused person,
whereas a civil lawsuit is initiated by one party (the plaintiff) against the
other disputing party (the defendant). Second, the general purpose of civil
law is to compensate the innocent party for the damages or losses which he
or she has suffered or incurred arising from the alleged wrongdoing of the
other party. However, in criminal law, the primary purpose is to “punish” or
deter potential criminals from committing offences. Third, we speak in terms
of “remedies” in civil law to compensate the innocent party. In criminal law,
the offender may suffer the consequences of a jail term or a fine by the state
or both; there is generally no direct compensation from the wrongdoer to
the victim for the crime committed under the criminal law (but note that
s 359 Criminal Procedure Code (No 15 of 2010) now requires the court to
“consider” whether to make victim compensation orders upon conviction).
Finally, in a criminal trial, the prosecution has to prove beyond reasonable
doubt that the accused has committed the offence as charged (Teo Keng

54
 Chapter 3: Legal Processes and Institutions

Pong v Public Prosecutor (1996)). In a civil lawsuit, however, the plaintiff

has to prove his or her case against the defendant merely on a balance of
probabilities.

The Court Structure and Hierarchy in Singapore

3.37 The Singapore Judiciary consists of the Supreme Court and the Subordinate
Courts (see Figure 3.2). The great efficiency and strength of the Singapore
Judiciary have won her several accolades and a strong international reputation
as evidenced by the published rankings of the world’s legal systems by the
Political and Economic Risk Consultancy (“PERC”) and the Institute for
Management Development. Under the leadership of the former Chief Justice
Yong Pung How and the former Registrar of the Supreme Court Chiam Boon
Keng, strict case management and alternative dispute resolution (“ADR”)
methods (see Chapter 2) have reduced drastically the problems associated
with the backlog of cases in the early 1990s. Chan Sek Keong, Singapore’s
third Chief Justice, who was appointed to head the Judiciary from 11 April
2006 to 5 November 2012, implemented various programmes with a view
to enhancing access to justice and substantive jurisprudence in Singapore,
including the establishment of community courts and the appointment of
specialist judges to handle complex cases within the Subordinate Courts. The
present Chief Justice, Sundaresh Menon, took over the helm on 6 November
2012.

Constitutional
Court of Appeal
Tribunal
Supreme
Court

High Court

District Courts
Subordinate Magistrates’ Coroners’ Juvenile Small Claims
(including the
Courts Family Courts) Courts Courts Courts Tribunals

Figure 3.2 The judicial hierarchy in Singapore

55
 Principles of Singapore Business Law

3.38 The Supreme Court comprises both the High Court and the Court of
Appeal (Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)). As of
6 November 2012, there were 17 judges and judicial commissioners in the
Supreme Court, including three female judges. Within the Supreme Court,
a Constitutional Tribunal has also been set up to hear questions referred
to the tribunal by the Elected President on the effect of provisions of the
Constitution. The administration of justice in the Supreme Court is assisted
by the Registrar and his or her team of deputy registrars, senior assistant
registrars and assistant registrars. Since 1991, Justices’ Law Clerks have been
appointed to provide research assistance to the Supreme Court judges.

3.39 Following the abolition of appeals to the Privy Council since 1994, the
Singapore Court of Appeal is the highest court in the land. The Court of
Appeal enjoys both appellate civil and criminal jurisdiction arising from
the decisions of the High Court and the Subordinate Courts. The Court of
Appeal comprises the Honourable Chief Justice and Judge(s) of Appeal. As of
6 November 2012, there were three Judges of Appeal: the Honourable Justices
Chao Hick Tin, Andrew Phang, and V K Rajah. As the highest court of
the land, the Court of Appeal is instrumental in maintaining and enhancing
the administration of justice as well as the jurisprudential development of
Singapore law.

3.40 The Practice Statement on Judicial Precedent issued by the Supreme Court
on 11 July 1994 outlined the relevance of prior Privy Council and Court
of Appeal decisions in Singapore. It stated that the Court of Appeal should
not be bound by its own previous decisions and those of the Privy Council
which, prior to 8 April 1994, were binding on it, “where adherence to such
prior decisions would cause injustice in a particular case or constrain the
development of law in conformity with the circumstances of Singapore”.
Thus, the Court of Appeal will continue to treat such prior decisions as
normally binding but will, whenever it appears right to do so, depart from
such prior decisions. Bearing in mind the danger of retrospectively disturbing
contractual, proprietary and other legal rights, this power to depart from
prior Privy Council decisions will be exercised sparingly.

3.41 Apart from hearing cases at first instance, the High Court also hears civil
appeals from the District and Magistrates’ Courts as well as other tribunals
as prescribed by the written law. It also has appellate criminal jurisdiction
over criminal appeals from the District and Magistrates’ courts and in

56
 Chapter 3: Legal Processes and Institutions

respect of points of law reserved by special cases submitted by the District

and Magistrates’ courts.

3.42 Under the doctrine of judicial precedent, the Singapore High Court is bound
by the prior decisions of the Court of Appeal, unless the High Court judge is
able to show that either of the exceptions stated in para 3.27 apply. However,
it is not bound by the previous decisions of the High Court.

3.43 The High Court judges enjoy security of tenure, whilst Judicial Commissioners
are appointed on a short-term contract basis. Both, however, enjoy the
same judicial powers and immunities. Their judicial powers comprise both
original and appellate jurisdiction over both civil and criminal matters. In
line with the enhanced complexity of commercial disputes, the Judiciary
has since 2002 established three specialist courts: the Admiralty, Intellectual
Property and Arbitration Courts which are presided by Judges and Judicial
Commissioners with domain expertise in those areas.

3.44 The Subordinate Courts (consisting of the District, Magistrates’, Coroners’

and Juvenile Courts as well as the Small Claims Tribunals) have also been set
up within the Singapore judicial hierarchy to administer justice amongst the
people (Subordinate Courts Act (Cap 321, 2007 Rev Ed)). The administration
of justice within the Subordinate Courts is aided by a team consisting of the
Registrar and deputy registrars.

3.45 The District Courts and the Magistrates’ Courts share the same powers over
specific matters such as contractual or tortious claims for a debt, demand or
damage, and actions for the recovery of monies. However, the jurisdictional
monetary limits in civil matters for the Magistrates’ Courts and District
Courts are $60,000 and $250,000 respectively. The courts also differ in
terms of criminal sentencing powers. Imprisonment terms imposed by the
Magistrates’ Courts are limited to three years whilst the limit imposed on the
District Courts is ten years (s 303 Criminal Procedure Code (No 15 of 2010)).

3.46 With the increased sophistication in business transactions and law, the
Commercial Civil and Criminal District Courts have recently been
established within the Subordinate Courts to deal with more complex cases.
Law academics and practitioners with the relevant expertise have also been
appointed as specialist judges on an ad hoc basis to deal with specific
complex cases.

57
 Principles of Singapore Business Law

3.47 We should also briefly mention the main roles and functions of the other
Subordinate Courts. The Family Court, which is a District Court, deals with
divorces, maintenance, custody, adoptions and applications for protection and
exclusion orders in family violence cases. The Juvenile Court, presided over
by a Magistrate, hears cases involving offences committed by young persons
and children. The conduct of inquiries to determine whether the deceased
person(s) died of unnatural causes is within the purview of the Coroners’
Court. The Small Claims Tribunals (“SCTs”) offer a speedy, cost-effective and
informal process (without legal representation) for the disposition of small
claims with a monetary limit of only $20,000, provided the disputing parties
consent in writing. The SCTs hear claims in respect of contracts for the sale
of goods and the provision of services, tort claims in respect of property
damage (excluding those arising out of or in connection with the use of a
motor vehicle) and disputes relating to leases of residential premises for a
lease period of two years or less.

3.48 Other existing courts include the Subordinate Military Courts which hear
cases at first instance involving military offences. Appeals against the
decisions of the Subordinate Military Courts are heard by the Military
Court of Appeal. The Industrial Arbitration Court has been established to
conduct arbitration proceedings with respect to trade disputes involving
trade unions and employers. The Syariah Court administers Muslim law in
specific personal legal matters governing marriages, divorces, the nullity of
marriages, judicial separations, disposition or division of property on divorce
or nullity of marriage in respect of Muslims or parties married under
Muslim law. The High Court, however, has concurrent jurisdiction with
the Syariah Court on specific matters relating to maintenance, custody and
division of property, subject to the parties obtaining leave of the Syariah
Court prior to commencing proceedings in civil courts.

3.49 The Community Court was established in 2006 to deal with particular
types of cases (youthful offenders, offenders with mental disabilities,
neighbourhood disputes, attempted suicide cases, family violence, carnal
connection offences by youthful offenders, abuse and cruelty to animals and
cases impacting race relations). One important purpose of this court is to
allow such offenders to reintegrate more successfully into the community
via the use, in appropriate cases, of long-term community-based treatment
rather than imprisonment. Subsequent legal reforms in 2009 have also
enabled the Community Court to utilise more graduated sentencing

58
 Chapter 3: Legal Processes and Institutions

options (such as community service orders and day reporting orders) to deal
with minor offences.

Technology and the Courts

3.50 The Singapore Judiciary as a whole has taken big strides in imbibing informa-
tion technology. Certain technologically enabled courtrooms (Technology
Courts) were, for instance, set up to enable the sharing of information by
lawyers and judges and the giving of evidence by witnesses via video
conferencing. The Supreme Court’s Digital Transcription System allows for
the digital audio recording of court hearings with near real-time transcription.
Moreover, the Electronic Queue Management System provides a fair and
orderly queue system in the Supreme Court for chamber hearings before the
Registrars. It notifies lawyers, on a first-come-first-served basis, as to when
their cases will be heard via display screens located within its premises.

The Electronic Filing System (“EFS”), a joint project by the Judiciary,

Singapore Network Services and the Singapore Academy of Law, has, in
the past, enabled the filing, extraction and service of court documents as
well as the tracking of case information by electronic means. Pursuant to an
EFS review in 2003, the EFS has since been reconstituted as the Electronic
Litigation Systems (“ELS”) in order to further integrate technology into
the litigation process. Information technology innovations have also been
utilised to facilitate and streamline various criminal processes (including the
payment of traffic fines and information flow and exchange between the
Subordinate Courts and Home Team agencies). New technologies (such
as 3G mobile services) are being tested and employed to further enhance
the delivery of court IT services, reflective of the incessant drive by the
Judiciary to harness technological advancements.

Interpretation of Written Law

3.51 The judge, during the course of adjudication, may be required to interpret the
Acts of Parliament and subsidiary legislation as applicable to reach a decision
in a particular case. A few general approaches to statutory interpretation
have been used by judges for this purpose:

° literal rule: the words in the statutory provisions should be construed

according to their plain and ordinary meaning;

59
 Principles of Singapore Business Law

° golden rule: the literal rule should be followed unless it leads to an absurd
result;

° mischief rule (also known as the rule in Heydon’s case (1584)): the words
should be considered in the light of the mischief which the enactment of
the legislation was attempting to remedy; and

° purposive rule: the purpose or object underlying the statute should be

examined to ascertain the meaning of the words (see s 9A Interpretation
Act (Cap 1, 2002 Rev Ed)).

3.52 Some of these approaches have been encapsulated in the Interpretation Act
(Cap 1, 2002 Rev Ed). According to s 9A Interpretation Act, the judge can
refer to, inter alia, the explanatory statement to the Bill, the speech made
by the Minister in Parliament as well as the Parliamentary debates for the
following purposes:

° to confirm the ordinary meaning of the provision of the written law,

taking into account its context in the written law and the purpose or
objective underlying the written law (ie, a combination of the literal rule
and purposive rule); and

° to ascertain the meaning of the provision of the written law if:

– the provision is ambiguous or obscure; or
– the ordinary meaning of the provision would lead to a result that is
manifestly absurd or unreasonable (ie, the golden rule).

3.53 There are also various specific technical rules which judges have used to
interpret the written law, including:

° ejusdem generis rule: where general words follow specific words (eg,
pens, pencils, erasers and “any object whatsoever”), the meaning of
the general words will be confined to the class given by the preceding
specific words;

° noscitur a sociis: this involves gathering the meaning of words from its
context, that is, via association with its neighbouring words (eg, buses,
“vehicles” and taxis); and

° expressio unius est exclusio alterius: words that are expressly mentioned
in a statute suggest an intention to exclude those which have been
omitted.

60
 Chapter 3: Legal Processes and Institutions

THE LEGAL PROFESSION, LEGAL EDUCATION AND OTHER

PROFESSIONAL BODIES
3.54 The legal profession in Singapore is “fused”. This means the Singapore
lawyer may act as both an advocate (to represent clients in the courts) as
well as a solicitor (to assist clients in out-of-court work such as preparing
and negotiating legal documentation). The Singapore lawyer is a versatile
creature: he or she may serve as a legal or judicial officer in the Singapore
legal service, an in-house counsel of a company or practise law in a local
or international law firm. Within the local set-up, the lawyer may handle
litigation, corporate work, conveyancing and intellectual property work.
Outstanding litigators, practitioners and law academics have been appointed
as Senior Counsel in recognition of their lofty professional standards.
Leading Singapore lawyers have been consistently cited in Legal 500, Asia
Pacific 500 and Chambers Global in one or more areas of expertise. The
legal profession has, like the courts, undergone increased specialisation of
functions in recent years as we find more lawyers involved in esoteric areas
such as biotechnology and asset securitisations.

3.55 For the lawyer in private (legal) practice, one prominent feature of the legal
landscape has been the proliferation of vehicles for the setting up of legal
practices and the facilitation of tie-ups amongst the law practices. Apart
from the sole proprietorships and partnerships, the legal profession has
also seen the creation of the law corporation with the associated benefits of
limited liability. The subsequent introduction of limited liability partnerships
(“LLPs”) in Singapore has offered another vehicle for legal practice. There
also exists the avenue of forming joint law ventures (“JLVs”) and formal law
alliances (“FLAs”) between a Foreign Law Practice (“FLP”) and Singapore
Law Practice (“SLP”) (subject to the approval of the Attorney-General) with
the attendant advantages of marketing the venture or alliance as a single
service provider and centralised billing for clients. FLPs licensed as Qualified
Foreign Law Practices (“QFLPs”) are entitled to practise Singapore law in
certain permitted areas via Singapore-qualified solicitors employed by them.
In addition, the legislative amendments in 2012 will enable the foreign lawyers
within the SLP to take an increased profit and equity share in the SLP up to a
maximum of 33 per cent as well as encourage greater collaborations between
the SLPs and the FLPs. For example, the recent reforms allow concurrent
partnerships between SLPs and FLPs of a JLV and permit QFLPs to enter
into FLAs and JLVs whilst still retaining their QFLP licences.

61
 Principles of Singapore Business Law

3.56 A sound legal education is instrumental to the birth and subsequent develop-
ment of the Singapore lawyer. The Singapore Institute of Legal Education
(at http://www.sile.org.sg) was established in May 2011 to maintain and
improve the standards of legal education in Singapore. To be admitted to
the Singapore Bar, an aspirant has to first attain the status of a “qualified
person” by obtaining a law degree from the National University of
Singapore (“NUS”), the Singapore Management University (“SMU”) or
one of the approved overseas universities of the United Kingdom, United
States, Australia, Canada and New Zealand. In addition to the Bachelor of
Laws (“LLB”) programme, SMU offers a Juris Doctor (“JD”) programme for
graduates with a first degree from other disciplines as well as law graduates
from civil law jurisdictions and non-gazetted universities in common law
jurisdictions. Apart from a four-year LLB programme, NUS also offers a
three-year graduate LLB programme for graduates with a first degree.

3.57 Law graduates from the approved foreign universities will be required to pass
Part A of the Bar Examination (after an optional and shorter conversion
course offered by NUS) in place of the former one-year Diploma of Singapore
Law. Overseas graduates with Lower Second Class honours from approved
universities are eligible to take the Bar Examination. Law graduates from
NUS and SMU are not required to undertake Part A of the Bar Examination.
The law graduates from both the local and approved foreign universities
would have to undergo and pass the full-time Preparatory Course leading
to Part B of the Singapore Bar Examinations. Finally, the law graduate may
serve a practice training period with a Singapore law practice pursuant to
a practice training contract or through work as a Legal Service officer or
under the supervision of a qualifying legal officer. Upon fulfillment of the
above requirements, he or she can be admitted to the Singapore Bar.

3.58 Foreign-qualified lawyers may apply for a Foreign Practitioner Certificate

from the Attorney-General to practise in limited areas of Singapore law such
as banking and finance, mergers and acquisitions, and intellectual property
law subject to passing the Foreign Practitioner Examination (“FPE”). One
prerequisite for taking the FPE is that the foreign lawyer must have at least
three years of relevant legal practice or work in Singapore or overseas.
Queen’s Counsel from the United Kingdom were previously admitted on an
ad hoc basis for non-criminal cases provided the court was satisfied that
the matter was of sufficient difficulty and complexity and the applicant
had special qualifications or experience for purpose of the case (s15 Legal

62
 Chapter 3: Legal Processes and Institutions

Profession Act (Cap 161, 2009 Rev Ed); Re Millar Gavin James QC (2004)).
In Re Joseph David QC (2012), admission was granted to a Queen’s
Counsel for a commercial arbitration case. With a view to providing greater
diversity in legal representation particularly for commercial disputes, the
recent legislative reforms in 2012 have given the Chief Justice discretion in
specifying the considerations as to whether to grant ad hoc admissions to
foreign advocates. The impact of the recent overtures remains to be seen.

3.59 The Singapore Institute of Legal Education administers a mandatory

Continuing Professional Development (“CPD”) scheme for lawyers, which
commenced in April 2012. In its initial phase, the CPD scheme is targeted at
young lawyers in legal practice (ie, those with less than five years’ experience)
but it is expected that the scheme will, in the near future, also apply to the
more experienced lawyers.

3.60 Apart from the law schools, the Singapore Institute of Legal Education, and
local and foreign law practices, two other important professional bodies — the
Law Society of Singapore and the Singapore Academy of Law — should be
specifically mentioned. The Law Society (www.lawsociety.org.sg), comprising
primarily lawyers in legal practice, continues to uphold and advance the
interests of the practising lawyers as well as to promote access to justice.
In respect of criminal matters, the Law Society of Singapore operates the
Criminal Legal Aid Scheme (“CLAS”) for needy accused persons. The Pro
Bono Services Office of the Law Society of Singapore, established in 2007,
coordinates and administers pro bono initiatives including CLAS, Project
Law Help for voluntary welfare organisations, Community Legal Clinics at
the Community Development Councils as well as initiatives to raise public
awareness of the law. Apart from the Law Society, the Singapore Legal Aid
Bureau, a government department established under the Legal Aid and
Advice Act (Cap 160, 1996 Rev Ed), provides civil legal aid to the needy
based on “merits” and “means” tests.

3.61 The Singapore Academy of Law (“SAL”) (www.sal.org.sg), established by an

Act of Parliament in 1988, seeks to advance the legal profession as a whole.
Its members include practising lawyers, in-house counsel, government legal
officers and law academics. The President of the SAL is the Honourable Chief
Justice. Current and significant projects of the SAL include the promotion
of Singapore law in the Asian region, the continuing legal education of
its members, law reform initiatives, the promotion of alternative dispute

63
 Principles of Singapore Business Law

resolution (see Chapter 2) and the publication of law journals and case
law in the Singapore Law Reports. Academy Publishing, set up under the
auspices of the Singapore Academy of Law, has significantly contributed
to the development of local jurisprudence with the publication of various
Singapore law books including contract law, tort law and constitutional law.

CONCLUSION
3.62 The maintenance and development of the legal institutions and their
processes in Singapore are likely to be influenced by a combination of
factors: economic pragmatism and efficiency, values of fairness and equity,
local circumstances and evolving external conditions. In view of the relative
youth of these legal institutions, the willingness to adapt and innovate,
undergirded by fundamental principles such as the Rule of Law, will be
important. Whilst the laws and practices of other jurisdictions remain a
veritable source of knowledge in this age of globalisation, the Singapore
legal institutions will inevitably have to, in at least some cases, develop
and modify their own solutions and processes to tackle particular legal,
socio-economic, political and cultural issues appropriate to their unique
circumstances.

64