“Sources of Singapore law”的意思、由来-开放百科全书

There are three general sources of Singapore law: legislation, judicial precedents (case law), and custom.^[1]

Legislation is divided into statutes and subsidiary legislation. Statutes are written laws enacted by the Singapore Parliament, as well as by other bodies that had power to pass laws for Singapore in the past. Statutes enacted by these other bodies may still be in force if they have not been repealed. One particularly important statute is the Constitution of the Republic of Singapore, which is the supreme law of Singapore. Any law the Legislature enacts after the commencement of the Constitution that is inconsistent with it is, to the extent of the inconsistency, void. Subsidiary legislation, also known as "delegated legislation" or "subordinate legislation", is written law made by ministers or other administrative agencies such as government departments and statutory boards under the authority of a statute (often called its "parent Act") or other lawful authority, and not directly by Parliament.

As Singapore is a common law jurisdiction, judgments handed down by the courts are considered a source of law. Judgments may interpret statutes or subsidiary legislation, or develop principles of common law and equity laid down, not by the legislature, but by previous generations of judges. Major portions of Singapore law, particularly contract law, equity and trust law, property law and tort law, are largely judge-made, though certain aspects have now been modified to some extent by statutes.

A custom is an established practice or course of behaviour that is regarded by the persons engaged in the practice as law. Customs do not have the force of law unless they are recognized in a case. "Legal" or "trade" customs are not given recognition as law unless they are certain and not unreasonable or illegal. In Singapore, custom is a minor source of law as not many customs have been given judicial recognition.

Legislation

Legislation, or statutory law, can be divided into statutes and subsidiary legislation.

Statutes

Statutes are written laws enacted by the Singapore Parliament, as well as by other bodies such as the British Parliament, Governor-General of India in Council and Legislative Council of the Straits Settlements, which had power to pass laws for Singapore in the past. Statutes enacted by these other bodies may still be in force if they have not been repealed. One particularly important statute is the Constitution of the Republic of Singapore,^[2] which is the supreme law of Singapore. Any law the Legislature enacts after the commencement of the Constitution that is inconsistent with it is, to the extent of the inconsistency, void.^[3] Statutes of the Singapore Parliament, as well as English statutes in force in Singapore by virtue of the Application of English Law Act 1993,^[4] are published in looseleaf form in a series called the Statutes of the Republic of Singapore, which is gathered in red binders, and are also accessible on-line from Singapore Statutes Online, a free service provided by the Attorney-General's Chambers of Singapore.

Most statutes, apart from amending Acts and certain Acts such as Supply Acts, are assigned chapter numbers (the word "chapter" is usually abbreviated "Cap."). Revised editions (abbreviated "Rev. Ed.") of statutes that consolidate all amendments to statutes within certain periods of time are published regularly.

Passage of bills through Parliament

A statute of the Singapore Parliament begins its life as a bill, which is usually introduced in Parliament by a government minister.^[5] In practice, most legislation is initiated by the Cabinet, either acting on its own or on the advice of senior civil servants. Bills go through the following stages in Parliament:

At the first reading, the bill is introduced into Parliament, usually by the responsible minister. No debate on the bill takes place. The bill is considered has having been read after the MP introducing it has read aloud its long title and laid a copy of it on the Table of the House, and the Clerk of Parliament has read out its short title. Copies of the bill are then distributed to MPs, and it is published in the Government Gazette for the public's information. The bill is then scheduled for its second reading.^[6] If a bill makes substantial, and not merely incidental, provision for:

the Minister for Finance must signify that the President has recommended the introduction of the bill, otherwise it may not be introduced in Parliament.^[7]

On the second reading, the minister responsible for moving the bill usually makes a speech explaining the objects and reasons behind the bill. The general merits and principles of the bill are then debated.

The bill then proceeds to the committee stage, where the details of the drafting of the proposed law are examined. Where a bill is relatively uncontroversial, it is referred to a committee of the whole Parliament; in other words, all the MPs attending the sitting form a committee^[8] and discuss the bill clause by clause. Bills that are more controversial, or that require the views of interested groups or the public, are often referred to a select committee. This is a committee of selected MPs who invite interested people to make representations to the committee. Public hearings to hear submissions on the bill may be held. The select committee then reports its findings, together with any suggested amendments to the bill, to Parliament.

The bill then goes through a third reading. At this stage, only amendments not of a material character may be made to the bill. The minister moving the third reading may also make a speech outlining the changes made to the bill. The bill is then put to the vote. In most cases, a simple majority of Parliament is all that is needed for the bill to be approved. However, bills seeking to amend the Constitution must be carried by a special majority: not less than two-thirds of all MPs on the second and third readings.^[9]

Scrutiny of bills by the Presidential Council for Minority Rights

Once most bills have been passed by Parliament, they must be submitted to a non-elected advisory body called the Presidential Council for Minority Rights (PCMR). The PCMR's responsibility is to draw attention to any legislation that, in its opinion, is a "differentiating measure", that is, one that discriminates against any racial or religious community. When the Council makes a favourable report or no report within the time prescribed (in which case the bill is conclusively presumed not to contain any differentiating measures), the bill is presented to the President for assent.

If the PCMR submits an adverse report, Parliament can either make amendments to the bill and resubmit it to the Council for approval, or decide to present the bill for the President's assent nonetheless provided that a Parliamentary motion for such action has been passed by at least two-thirds of all MPs. The PCMR has not rendered any adverse reports since it was set up in 1970.

Assent to bills by the President

The President generally exercises his constitutional function of assenting to bills in accordance with Cabinet's advice and does not act in his personal discretion.^[12] Therefore, except in certain instances described below, he may not refuse to assent to bills that have been validly passed by Parliament. The words of enactment in Singapore statutes are: "Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows:".^[13]

The President may act in his discretion in withholding assent to any of the following types of bills passed by Parliament:^[14]

As regards a bill mentioned in paragraph 1, the President, acting in accordance with the advice of the Cabinet, may refer to a Constitutional Tribunal the question of whether the bill circumvents or curtails the discretionary powers conferred on him or her by the Constitution. If the Tribunal is of the opinion that the bill does not have this effect, the President is deemed to have assented to the bill on the day after the day when the Tribunal's opinion is pronounced in open court. On the other hand, if the Tribunal feels that the bill does have the circumventing or curtailing effect, and the President either has withheld or withholds his assent to the bill, the Prime Minister may direct that the bill be submitted to the electors for a national referendum. In that case, the bill only becomes law if it is supported by not less than two-thirds of the total number of votes cast at the referendum. If 30 days have expired after a bill has been presented to the President for assent and he or she has neither signified the withholding of assent nor referred the Bill to a Constitutional Tribunal, the bill is deemed to have been assented to on the day following the expiry of the 30-day period.^[20] The procedure is similar for a bill mentioned in paragraph 2, except that if the Constitutional Tribunal rules that the bill has a circumventing or curtailing effect, the Prime Minister has no power to put the bill to a referendum.^[21] This ensures that changes to the President's discretionary powers can only be made by way of constitutional amendments and not ordinary statutes.

If the President withholds his assent to any Supply Bill, Supplementary Supply Bill or Final Supply Bill referred to in paragraph 5 contrary to the recommendation of the Council of Presidential Advisers, Parliament may by resolution passed by not less than two-thirds of the total number of elected MPs overrule the decision of the President.^[22] If Parliament does not do so within 30 days of the withholding of assent, it may authorize expenditure or supplementary expenditure, from the Consolidated Fund and Development Fund during the relevant financial year,^[23] provided that:^[24]

If 30 days have passed after a Supply Bill, Supplementary Supply Bill or Final Supply Bill has been presented to the President for assent and her or she has not signified the withholding of assent, the President is deemed to have assented to the bill on the day immediately following the expiration of the 30-day period.^[26]

Upon receiving presidential assent, a bill becomes law and is known as an Act of Parliament. However, the Act only comes into force on the date of its publication in the Government Gazette, or on such other date that is stipulated by the Act or another law, or a notification made under a law.^[27]

Examples of statutes

Subsidiary legislation

Subsidiary legislation is known by a variety of names. Section 2(1) of the Interpretation Act^[40] defines "subsidiary legislation" as meaning "any order in council, proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect".

Subsidiary legislation must, unless otherwise expressly provided in any statute, be published in the Government Gazette and, unless expressly provided in the subsidiary legislation itself, takes effect and comes into operation on the date of its publication.^[47]

No subsidiary legislation made under an Act of Parliament may be inconsistent with the provisions of any Act.^[48] This means that any subsidiary legislation that was made ultra vires its parent Act (that is, the Act did not confer power on the agency to make the subsidiary legislation) or is not consistent with any other statute is void to the extent of the inconsistency.^[49]

Subsidiary legislation currently in force in Singapore is published in looseleaf form in a series called the Subsidiary Legislation of the Republic of Singapore, which is gathered in black binders. New subsidiary legislation published in the Gazette may be viewed for free on-line for five days on the [https://web.archive.org/web/20061205225007/http://egazette.com.sg/current.php Electronic Gazette] website.

Examples of subsidiary legislation

Judicial precedents

As Singapore is a common law jurisdiction, judgments of the courts are considered a source of law. Judgments may interpret statutes or subsidiary legislation, or develop principles of common law and equity that have been laid down, not by the legislature, but by previous generations of judges. Major portions of Singapore law, particularly contract law, equity and trust law, property law and tort law, are largely judge-made, though certain aspects have now been modified to some extent by statutes.

As English courts do not form part of Singapore's hierarchy of courts, decisions of such courts are not binding on Singapore courts. However, as a result of Singapore's colonial heritage, English judicial precedents continue to exercise a strong influence on the legal system and are regarded as highly persuasive, particularly as regards the development of the common law, and the interpretation of English statutes applicable in Singapore and Singapore statutes modelled on English enactments. Judicial precedents from other jurisdictions may also be persuasive in specific areas of Singapore law. For instance, Indian decisions are persuasive in the areas of criminal law and procedure because Singapore borrowed heavily from India in these areas.^[63]

The Constitution provides that the President may refer to a tribunal consisting of not less than three judges of the Supreme Court for its opinion any question as to the effect of any provision of the Constitution that has arisen or appears likely to arise.^[64] Where a Constitutional Tribunal has given an opinion, no court has jurisdiction to question the opinion, or the validity of any law the bill for which was the subject of a reference to the Tribunal.^[65]

During Straits Settlements times, cases pertaining to Singapore appeared in various privately produced and official series of law reports such as Kyshe's Reports (covering cases decided between 1808 and 1939), the Straits Law Journal (1839–1891) and the Straits Settlements Law Reports (1867–1942). From 1932 until 1992, Singapore cases appeared regularly in the Malayan Law Journal (MLJ), the only local series of law reports published continuously since the 1930s, except during World War II. The MLJ is still consulted for Singapore cases decided prior to full independence in 1965. Since 1992, judgments of the High Court, Court of Appeal and Constitutional Tribunal of Singapore have appeared in the Singapore Law Reports (SLR), which is published by the Singapore Academy of Law under an exclusive licence from the Supreme Court of Singapore. The Academy has also republished cases decided since Singapore's full independence in 1965 that appeared in the MLJ in special volumes of the SLR, and is currently working on a reissue of this body of case law. Cases published in the SLR as well as unreported judgments of the Supreme Court and Subordinate Courts are available on-line from a fee-based service called LawNet, which is also managed by the Academy.

Examples of judicial precedents

Custom

In law, a custom is an established practice or behaviour that is considered to be law by the persons engaged in it. Customs do not have the force of law unless recognized in a case. "Legal" or "trade" customs are not recognized as law unless they are certain and not unreasonable or illegal.^[71] In Singapore, custom is a minor source of law as not many customs have been given judicial recognition.

Examples of custom

Notes

1. ^See, generally, ch. 6 of {{citation|author=Helena H[ui-]M[eng] Chan|title=The Legal System of Singapore|location=Singapore|publisher=Butterworths Asia|year=1995|isbn=978-0-409-99789-7|pages=105–112}}.
2. ^The current version is the 1999 Reprint.
3. ^{{Singapore legislation|title=Constitution|ed=1985|rep=1999}}, Art. 4.
4. ^¹{{Singapore legislation|title=Application of English Law Act|cap=7A|ed=1994}}.
5. ^Bills may also be introduced by private Members of Parliament (MPs), although this rarely occurs.
6. ^{{citation|title=Standing Orders of Parliament (as amended on 19 October 2004)|url=http://www.parliament.gov.sg/Publications/SO-merge%20with%20SO%20notes.pdf|format=PDF|archiveurl=https://www.webcitation.org/5h40VkRsP?url=http://www.parliament.gov.sg/Publications/SO-merge%20with%20SO%20notes.pdf|archivedate=26 May 2009|publisher=Parliament of Singapore|date=19 October 2004|accessdate=2 November 2009|postscript=, S.O. 67(2) and (3), 69(4) and (6).|deadurl=yes|df=dmy-all}}
7. ^Constitution, Art. 59(2); S.O. 67(1). This procedure is unnecessary for a bill that merely provides for the imposition or alteration of any fine or other pecuniary penalty or for the payment or demand of a licence fee or a fee or charge for any service rendered: Constitution, Art. 59(3).
8. ^S.O. 1(1) (definition of "Committee of the whole Parliament").
9. ^Constitution, Art. 5(2).
10. ^Constitution, Art. 78(7).
11. ^The term Money Bill is defined in the Constitution, Art. 68. A bill is deemed a Money Bill if the Speaker certifies in writing that, in his opinion, it is a Bill to which the definition of "Money Bill" contained in Article 68 applies. The Speaker's certificate is conclusive for all purposes and not open to question in any court. No Money Bill shall be presented to the President for assent unless it is accompanied by the Speaker's certificate: Art. 78(8).
12. ^Constitution, Arts. 21(1) and (2).
13. ^Constitution, Art. 60.
14. ^Constitution, Art. 21(2)(c).
15. ^Constitution, Art. 5A. This provision, not yet brought into operation, does not apply to bills seeking to amend the Constitution listed in Art. 5(2A), which may not be passed by Parliament unless supported at a national referendum by not less than two-thirds of the total number of votes cast by electors.
16. ^Constitution, Art. 22H.
17. ^Constitution, Art. 22E.
18. ^Constitution, Art. 144(2).
19. ^Constitution, Art. 148A. In forming his or her opinion, the President is to disregard any amount for any service or purpose included in a Supplementary Supply Bill or Final Supply Bill replacing any amount advanced from any Contingencies Fund under Art. 148C(1): Art. 148A(4).
20. ^Constitution, Arts. 5A(2)–(6).
21. ^Constitution, Arts. 22H(2)–(4).
22. ^Constitution, Art. 148D(1).
23. ^Upon an expenditure-authorizing resolution being passed, the Minister for Finance must introduce in Parliament a Supply Bill, Supplementary Supply Bill or Final Supply Bill, as the case may be, setting out the sums so voted on by Parliament: Constitution, Art. 148A(3A).
24. ^Constitution, Art. 148A(2).
25. ^The total amount appropriated for any service or purpose in any financial year must be ascertained by adding the sums appropriated for such service or purpose by the Supply law, Supplementary Supply law and Final Supply law (if any) for that financial year: Constitution, Art. 148A(3).
26. ^Constitution, Art. 148A(5).
27. ^Chan, pp. 36–39, 107.
28. ^¹{{Singapore legislation|title=Environmental Public Health Act|cap=95|ed=2002}}.
29. ^{{Singapore legislation|title=Road Traffic Act|cap=276|ed=2004}}.
30. ^Environmental Public Health Act, s. 103.
31. ^Environmental Public Health Act, s. 21A(1).
32. ^{{Singapore legislation|title=Maintenance of Religious Harmony Act|cap=167A|ed=2001}}.
33. ^Maintenance of Religious Harmony Act, s. 8(1).
34. ^¹{{Singapore legislation|title=Miscellaneous Offences (Public Order and Nuisance) Act|cap=184|ed=1997}}.
35. ^Miscellaneous Offences (Public Order and Nuisance) Act, s. 27A(2).
36. ^{{Singapore legislation|title=Penal Code|cap=224|ed=1985}}.
37. ^{{Singapore legislation|title=Sale of Goods Act|cap=393|ed=1999}}.
38. ^¹{{Singapore legislation|title=Women's Charter|cap=353|ed=1997}}.
39. ^Para. [10.020] in vol. 1 of {{citation|title=Halsbury's Laws of Singapore|location=Singapore|publisher=Butterworths Asia|year=1999|isbn=978-981-236-000-7}}.
40. ^{{Singapore legislation|title=Interpretation Act|cap=1|ed=1999}}.
41. ^{{citation|author=F[rancis] A[lan] R[oscoe] Bennion|authorlink=Francis Bennion|title=Statutory Interpretation: A Code|edition=4th|location=London|publisher=Butterworths|year=2002|page=193|isbn=978-0-406-94305-7}}, s. 48.
42. ^Bennion, at s. 66 on p. 223.
43. ^Bennion, at s. 64 on p. 220.
44. ^Bennion, at s. 63 on p. 220.
45. ^Bennion, at s. 62 on p. 219.
46. ^Bennion, at s. 65 on p. 221.
47. ^Interpretation Act, s. 23.
48. ^Interpretation Act, s. 19(c).
49. ^Halsbury's Laws of Singapore, vol. 1, para. 10.018.
50. ^Environmental Public Health (Public Cleansing) Regulations (Cap. 95, Rg. 3, 2000 Rev. Ed.).
51. ^Environmental Public Health (Public Cleansing) Regulations, reg. 30.
52. ^Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap. 184, R. 1, 2000 Rev. Ed.).
53. ^Public Entertainments and Meetings (Speakers' Corner) (Exemption) Order (Cap. 257, O. 3, 2002 Rev. Ed.).
54. ^{{Singapore legislation|title=Public Entertainments and Meetings Act|cap=257|ed=2001}}.
55. ^Rapid Transit Systems Regulations (Cap. 263A, 1997 Rev. Ed.).
56. ^{{Singapore legislation|title=Rapid Transit Systems Act|cap=263A|ed=2004}}.
57. ^Rapid Transit Systems Regulations, reg. 52 read with the Schedule.
58. ^Sale of Food (Prohibition of Chewing Gum) Regulations (Cap. 283, Rg. 2, 2004 Rev. Ed.).
59. ^{{Singapore legislation|title=Sale of Food Act|cap=283|ed=2002}}.
60. ^Sale of Food (Prohibition of Chewing Gum) Regulations, reg. 2(1).
61. ^{{Singapore legislation|title=Medicines Act|cap=176|ed=1985}}.
62. ^Practice Statement dated 11 July 1994.
63. ^¹Chan, pp. 113–121.
64. ^Constitution, Art. 100(1).
65. ^Constitution, Art. 100(4).
66. ^Chng Suan Tze v. Minister for Home Affairs [https://www.webcitation.org/64ATf2EyI?url=http://lwb.lawnet.com.sg/legal/lgl/rss/landmark/%5B1988%5D_SGCA_16.html [1988] SGCA 16], [1988] 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 525, Court of Appeal (Singapore), archived from the original on 24 December 2011.
67. ^{{Singapore legislation|title=Internal Security Act|titlelink=Internal Security Act (Singapore)|cap=143|ed=1985}}.
68. ^Chng Suan Tze, p. 156, para. 86.
69. ^Fay Michael Peter v. Public Prosecutor [1994] 1 S.L.R.(R.) 1063, High Court (Singapore).
70. ^{{Singapore legislation|title=Vandalism Act|titlelink=Vandalism Act (Singapore)|cap=341|ed=1985}}.
71. ^Chan, p. 122.
72. ^{{Singapore legislation|title=Administration of Muslim Law Act|cap=3|ed=1985}}.
73. ^Chan, pp. 121–122.

Legislation

Statutes

Passage of bills through Parliament

Scrutiny of bills by the Presidential Council for Minority Rights

Assent to bills by the President

Examples of statutes

Subsidiary legislation

Examples of subsidiary legislation

Judicial precedents

Examples of judicial precedents

Custom

Examples of custom

Notes

Further reading

See also

External links

General

The Legislature and legislation

The Judiciary and judicial precedents