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Law: “A good code no longer”

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Three law professors in a recently released book have called upon the legislature to amend and give Singapore a modernised Penal Code for the 21st century

Singapore Penal Code (SPC) is, except for a few revisions, virtually identical to the Indian Penal code (IPC) 1860. And “in sum, the Penal Code as we know it today falls short of many of the principles and objectives set by Macaulay [the principal framer of the IPC] himself, and presents the danger of continuing to perpetuate the moral judgements, values and policies of a bygone era,” wrote National University of Singapore law faculty members Chan Wing Cheong, Michael Hor and Stanley Yeo in their book, Criminal law for the 21st century: a model code for Singapore.

Calling SPC “a good code no longer”, the authors noted that while there have been a recent effort to conduct a comprehensive review of the Penal Code such as the SPC (Amendement) Act 2007, “in our view, these revisions have fallen well short of what might have been expected from the ‘most comprehensive review undertaken since 1984’”.

Revising the SPC

The professors proposed that one way, which they claim will not examine the foundational structure and conceptual underpinnings of the SPC, is to tidy up the “19th century legal instrument” with revisions in ambiguities, gaps and inconsistencies, and modernise the language used.

“But the best method of conducting this exercise [revising an antiquated Penal Code by re-examining whether the general principles of criminal responsibility corresponds with contemporary thinking about the subject matter] is to produce a ‘General Part’ for the SPC,” they wrote adding, “this Part will contain the foundational principles of criminal responsibility which are generally applicable to all offences, including those found outside the Penal Code.”

“The General Part will significantly revitalise the Penal Code and restore many of its original technical attributes,” said the authors. “We make a specific call upon our legislatures to commit themselves to a modernised Penal Code for the 21st century.”

Call from other quarters

Workers’ Party (WP) chairman and member of parliament for Aljunied Group Representative Constituency Sylvia Lim, in her speech on the Penal Code (Amendment) Bill last year, called on the government to look at the broader structure of the homicide provisions as a wider law reform exercise.

“We inherited our Penal Code from our colonial days, and the drafting of the homicide provisions has been criticised by no less than eminent jurist, Sir James Fitzjames Stephen, who drafted our Criminal Procedure Code. He labelled our homicide provisions as the ‘weakest’ part of the Penal Code, calling them ‘obscure’ and ‘not fully thought out’. His criticisms were several. Homicide itself has not been defined in the Penal Code, except in the context of culpable homicide; murder is a species of culpable homicide; the definitions of murder and culpable homicide also closely resemble each other, such that it is difficult to distinguish between them. For instance, a person intending to cause injury which is sufficient to cause death is a murderer, but a person intending to cause injury likely to cause death commits culpable homicide not amounting to murder,” said Lim.

Review under way

K Shanmugam, minister for law, informed the Parliament during the Committee of Supply Debates 2013 that “a law reform committee led by Senior Minister of State Indranee Rajah will be looking at rationalising Penal Code offences relating to homicide and hurt where death is caused; and whether and to what extent mentally disabled offenders should be punished differently, across the whole spectrum of criminal law”.

His ministry administers over 80 Acts – about 20% of the Statute Book, which the ministry reviews and seek to reform from time to time, Shanmugam said.

“A number of reforms were made in the last financial year. Looking at criminal justice, the Evidence Act was amended to expand the court’s discretion to admit hearsay and opinion evidence. As regards sexual assault victims, we made it clear that cross-examination on sexual history can only be done when directly relevant. Together with Ministry of Home Affairs and Attorney General’s Chambers, we worked on and brought before this House, reforms to the mandatory death penalty, in respect to drug trafficking and murder as well as the procedure for the Court of Appeal to review death sentences. The transitional cases are now being dealt with. We will monitor the impact on our crime rates as a result of these changes,” he added.

History of administration of justice in Singapore

Sir Stamford Raffles founded Singapore on February 6, 1819, which can be taken as the starting point of Singapore’s modern legal system. Till 1826, no explicit laws were created, hence the island was being governed by Raffles via a code of law formulated by him called Raffles Regulations. On March 20, 1827, the long-awaited Second Charter of Justice was implemented, which extended the jurisdiction of the Recorder’s Court at Penang to Melacca, Singapore and all present or future dependencies of the Straits Government.

This was significant not only in establishing the Court of Judicature, but also for its implicit importation of English Law. Although post-1826, developments in the common law made by English courts do not apply to Singapore unless it is accepted as part of Singapore’s law by a Singapore court.

After 1858, the British Crown took direct control of the Strait Settlements. Later, in 1867, the Government of the Straits Settlements Act was passed, which formed a Legislative Council responsible for all law-making activities in Singapore. This continued till the Second World War.

After independence, the Constitution became supreme in Singapore. From 1965 to 1979, the Constitution of Singapore was found in three separate documents: the State Constitution of 1963, the Republic of Singapore Independence Act (RSIA) and provisions of the Federation of Malaysia Constitution imported through the RSIA.

In 1979, Parliament amended the Constitution to empower the Attorney-General (AG) to prepare a consolidated Constitution and publish it as a reprint. The last reprint of the Constitution was published in 1999 by the AG.

Notably, in 1993, the Parliament passed the Application of English Law Act to “declare the extent to which English law is applicable in Singapore”.

Also, like most common law countries, judicial precedents are a major source of law in Singapore too. This is the principle of stare decisis or commonly referred – doctrine of binding precedent. Under this, the High Court continues to be bound by the decisions of the Court of Appeal as well as old Privy Council decisions.

Source: Law and legal institutions of Asia: Traditions, adaptations and innovations; Cambridge University Press

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