Historical context

2.1 Pre-colonial Singapore

Singapore's history prior to the 14th centuryis sketchy. Bythe 1300s it was a trad­ing centre of considerable importance. At various times, Singapore came under the influence of the Sumatra-based SriVijaya Empire (200-c 1400); the Java­based Majapahit Empire (1478-1520s) and the Malacca Sultanate (at Malacca and later at Johore and Riau).

2.2 Raffles and the founding of Singapore^[1007]

The tale of how Sir Stamford Raffles founded Singapore on 6 February 1819 is well known. This date must then be taken to be the starting point of Singapore’s modern legal system.^[1008] In his attempts to stop Dutch domination of trade in the East, Raffles persuaded Governor-General Hastings in Bengal that the British had to establish ports which were as yet unoccupied by the Dutch. From his studies of the region, Raffles knew that the island of Singapore belonged to the Sultanate of Johore. However, with the death of Sultan Mahmud II in 1810, there arose a dispute as to which of his two sons was to be his proper successor. The elder, Hussein, was the destined successor but while he was away in Pahang at the time of his father’s death, the younger Abdulrahman was persuaded to usurp the throne. Hussein was not able to recover his rights and lived in poverty in Rhio.^[1009]

On 30January 1819 Raffles signed a preliminary agreement with the Temeng- gong permitting him to establish a British �factory’ or trading post on the island in return for $3000 a year.

Raffles again left the island only to return for the last time in 1822. Besides embarking on his many ambitious projects, Raffles also formulated a code of law to be administered in Singapore in 1823.7 These Regulations must surely be considered illegal because Raffles was clearly acting beyond the scope of his legal powers - although he had powers to place the factory in Singapore under the jurisdiction of Bencoolen, he had no power to place the entire island under Bencoolen’s control. He treated Singapore as if the entire island had been ceded to the British even though his treaty with the Sultan and the Temenggong was much more limited. Bencoolen was itself subordinate to Bengal^{[1013] [1014] and the power to legislate for Bencoolen resided in the Governor-General in Council in Bengal.[1015] This hierarchy of control meant that Calcutta’s judicial powers extended to Sin­gapore, via Bencoolen.}

2.3 The administration of justice in early Singapore: 1819-27

Throughout the early years of British occupation of the island, the Residents administered English law because they were familiar with it and simply because it was more practical to do so. In a Reporton the Administration of Justice^[1016] which Raffles wrote to the Secretary to the Governmentin Calcutta (underwhose charge Singapore and the rest of the Straits Settlements were placed), he argued:

[U]nderthe peculiar circumstances ofthe establishments ofthe Settlement, the manner in which nearly the whole of the population has accumulated under the protection of our flag, and the real character and interests of the people who are likely to resort to it, we cannot do better than to apply the general principles of British law to all, equally and alike, without distinction of tribe or nation, with such modifications only as local circumstances and peculiarities, and a due consideration of the weakness and prejudices of the native part of the population, may from time to time suggest.^[1017]

Because no court was created for Singapore till 1826 and no explicit law-making powers were granted for the island, the RafflesRegulations remained, until 1826, the only body of judicial regulation in Singapore. Regulation 1 established a Registry of Land and provided that no land transferwas valid till itwas registered. Regulation 2 provided for the conduct of the affairs of the Port of Singapore, while Regulation 3 provided for the setting up of a Magistracy with jurisdiction over �all descriptions of persons resorting under the British flag’,^[1018] and presided over by magistrates who shall comprise �several British inhabitants of interest and respect in the Settlement, and who may be considered competent to act as Magistrates.'^[1019] Regulation 3 is important since it provided for the appointment of 12 magistrates who were nominated yearly by the Resident from among the principal British merchants.

Upon the signing of the Anglo-Dutch Treaty in 1824, Bencoolen and other British factories in Sumatra were ceded to the Dutch in exchange for Malacca and the withdrawal of all Dutch objections to the British occupation of Singapore.^[1023] On 24 June 1824 Singapore and Malacca were effectively transferred to the EIC by the British Parliament^[1024] and by Statute 39 and 40,^[1025] both territories became subordinate to FortWilliam (Calcutta) and subject to the jurisdiction of its Supreme Court of Judicature.

Immediately, the new Resident, John Crawfurd, was instructed to rectify all existing constitutional deficiencies by securing the cession of the island, and by the treaty of 19 November 1824, the Sultan and Temenggong agreed to �cede in full sovereignty and property to the Honourable the English East India Company, their heirs and successors for ever, the Island of Singapore'.^[1026] This treaty was ratified by the Supreme Government on 4 March 1825. In July that year, the British Parliament passed the Indian Salaries and Pensions Act,^[1027] enabling the King to make, inter alia, provision for the administration of justice in Singapore and Malacca. The Act empowered the EIC Directors to declare Singapore and Malacca annexed to Penang and to be part of that settlement. Alternatively, the Directors could constitute them as three separate settlements.^[1028]

The cession of Singapore did not end Crawfurd's problems. There were still no legally constituted courts in Singapore since rights over the island had yet to be secured, and even after they had been secured following the signing of the Anglo-Dutch Treaty in 1824, the Treaty was not ratified by the British Parliament till 1826.

2.4 The Second Charter of Justice

On the 20 March 1827, the long-awaited Charter of Justice (which was dated 27 November 1826) arrived.^[1032] In all essential respects, it was similar to the earlier Charter granted to Penang in 1807. The main purpose of the Charter of Justice was to extend the jurisdiction of the Recorder's Court at Penang to Malacca, Singapore and all present or future dependencies of the Straits Government. Under the Charter, the Court of Judicature of Prince of Wales' Island, Singapore and Malacca was established and it was to have

such Jurisdiction and Authority as Our Court of King's Bench and Our High Court of Chancery and Our Courts of Common Pleas and Exchequer, respectively, and the sev­eral Judges, Justices and Barons thereof, respectively have and may lawfully exercise within...

The Court was, in civil proceedings, to �give and pass Judgment and Sentence according to Justice and Right.' In criminal proceedings, the court was to

administer criminal Justice in such or the like Manner and Form, or as nearly as the Condition and Circumstances of the Place and the Persons will admit of, as our Courts of Oyer and Terminer and Goal Delivery do or may, in... England, due attention being had to the several Religions, Manners and Usages of the native Inhabitants.^[1034]

The Court of Judicature was to

consist of, and be holden before the governor or President and the Resident Counsellor, for the time being, of the Station where the said Court shall be held, as two of the Judges of the said Court, and before one other Judge, who shall be called �the Recorder of Prince of Wales’ Island, Singapore and Malacca,’ and which Recorder shall be a Barrister in England or Ireland of not less than five Years’ Standing, to be named and appointed, from Time to Time, by Us, Our Heirs and Successors, by Letter Patent under Our and Their Great Seal of the United Kingdom of Great Britain and Ireland.

Thus the Recorder, who was based in Penang, was to travel on circuit to Malacca and Singapore and he was to be assisted by the Resident Councillors and the Gov­ernor. The Charter also provided that the first Recorder of the Court of Judicature was to be Sir John Claridge who ironically arrived at Penang before the Charter. For some curious reason, the Court of Judicature was not vested with admiralty jurisdiction and this became the source of later problems, especially when piracy became rampant. This oversight was rectified in 1836.^[1035] In the meantime, the legislative power of the Penang Presidency was extremely limited^[1036] and power to make law for the Presidency was vested with the Supreme Government in India and the British Parliament.

The arrival of Claridge began a most tumultuous period in the Straits. He refused to leave Penang on circuit, arguing about the type of ship he was to travel in, and he launched virulent attacks against his lay colleagues who refused to attend court. During this period, Governor Fullerton was forced to hold assizes in Singapore and Malacca himself.^[1037] Claridge was finally recalled in 1829 on charges of insubordination, and with his departure the Resident Councillor in each settlement conducted the business of the Court until 20 June 1830.^[1038]

Claridge’s departure did not end the administrative troubles in the Straits Settlements. In 1829, the year of his recall, the EIC - now in serious financial difficulties - decided to �demote’ the Straits Settlements from its status as Presi­dency to that of Residency and placed the three territories under the control of the Bengal Presidency. This meant that each territory would constitute a separate Residency supervisedby subordinate officials in direct contactwith Bengal. There was one Resident in charge of the three settlements, stationed in Singapore; two deputy Residents, one each at Malacca and Penang; one First Assistant Resident at Singapore; and four Assistants, one each at Singapore, Malacca, Penang and Province Wellesley. The offices of the Governor and Resident Councillors ceased to exist and former Governor Fullerton was named Commissioner.

This reorganisation brought about legal chaos of epic proportions. Fullerton ruled that since there was no Recorder, Claridge having been recalled, no one was legally entitled to administer justice until a new charter was granted. Fur­thermore, neither he nor his assistants could sit in judgment since the Second Charter specifically provided that it was â€?the Governor or President, and the Res­ident Counsellor of the Station where the said Court shall... be held, shall at all Times be Judges of the said Court'.³³ He then closed the courts and dismissed the court establishment. This created an uproar in the mercantile community as business threatened to come to a standstill and the jails were full of prisoners. In desperation, the First Assistant opened his own Resident's Court but had to close it down when the Acting Registrar ruled it illegal.³⁴ By September 1831 the situation got so bad that petitions were sent to the British Parliament.³⁵

On27 July 1831 the EIC Directors issued a dispatch informing the Government in India that Fullerton had acted erroneously and that he should not have closed the courts.³⁶ The dispatch also informed the Straits Government that for the purposes of the administration of justice, the titles of â€?Governor' and â€?Resident Councillor' would be restored to enable the operation of the Charter,³⁷ even if the new office bearers no longer had the executive powers previously associated with those offices. This information only reached the Straits Government on 30 March 1832. On 9 June 1832, almost two years after Fullerton closed the courts, the Court of Judicature reopened in Penang under the presidency of the newly appointed Governor, Robert Ibbetson.³⁸ On 12 February 1833 Sir Benjamin Heath Malkin, one of the most scholarly and erudite men to grace the local Bench, arrived as the second Recorder of the Court of Judicature.

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