Topic 2 International Law & History of Singapore

SINGAPORE LEGAL SYSTEM 2009 PART I. SINGAPORE LAW AND INTERNATIONAL LAW Topic 2.
International Law & the History of Singapore

.A Study Guide ...................................................................2 .B International Law and Colonial Singapore.........................4
.1 .2 .3 .4 .5 International Law and Western Colonial Expansion ............................4 United Nations & Decolonization.........................................................5 Self-Government to Independence for Singapore...............................7 Succession to Treaties upon Independence........................................8 Stanislaus Krofan & Anor v Public Prosecutor....................................10
.C Singapore Constitutional Documents & International Law ................................................................................... 15

.1 .2 .3 .4 Introductory Note.............................................................................. 15 Independence of Singapore Agreement, 1965..................................15 Independence of Singapore Agreement, 1965, Annex B...................16 2003 MFA Press Release on Water Agreements................................19
.D International Law and the Singapore Constitution ..........22

.1 Constitutional Provisions on the Protection of Sovereignty...............22 .2 Constitutional Provisions on Citizenship............................................23 .1 Statement of Minister at Second Reading of Extradition Bill on 22 May 1968................................................................................................ 24 .2 Explanatory Statement to the Extradition Bill 1968..........................25 .1 Statement of the Minister on the Second Reading of the State Immunity Bill on 7 September 1979 ............................................28 .2 Explanatory State to the State Immunity Bill 1979...........................29
.E Extradition....................................................................24
.F State Immunity.............................................................28
All Rights Reserved Robert Beckman 2009 These materials are for the sole use of students in the NUS Faculty of Law. They are not to copied or circulated without the express written permission of the author.
Topic 2. International Law and Singapore Legal History
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.A STUDY GUIDE
The objective of this topic is to give students an understanding of the role that international law played in Singapore from the period when it was a British colony to the time when it became a sovereign independent State and a fully participating member of the international community of nations. We will first examine the role of international law and the status of Singapore during the age of Western colonial expansion. We will then briefly examine how after the establishment of the United Nations in 1945, the principle of self-determination was used by developing countries to push for decolonization, and how the decolonization movement was to influence the future political status of colonial Singapore. We then examine the issues of whether Malaysia and Singapore should have succeeded to international treaties that had been entered into on their behalf prior to their independence. We also examine the constitutional documents that were used to transfer sovereignty from Malaysia to and independent Singapore in 1965, and how the water agreements were inextricably linked to the granting of independence to Singapore. Finally, we will examine the provisions in the Singapore Constitution on international law, and how after independence Singapore has become a full participant in the international legal system by participating in numerous international organizations and becoming a party to most of the most important global conventions in all fields with the possible exception of human rights. During class discussion we will focus on the following questions and issues. 1. What was the status of Singapore under international law prior to independence determination in 1965? Why in was the principle of selfin important Asia, and was instrumental
Singapore becoming an independent State? 2. How was sovereignty transferred from Malaysia to Singapore in 1965, and what issues the transfer raised with respect to the succession to treaties, state property, citizenship, courts and other legal institutions, etc.?
Singapore Legal System 2009 International Law
Part 1. Singapore Law and
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3. What is the significance of the Stanislaus Krofan case with respect to the issue of state succession to treaties and the issue of whether international law is part of Singapore law? 4. The legal issues relating to the water agreements, including how they are linked to the 1965 separation agreement, whether they are international treaties, whether they can be modified or terminated adjudication 5. The constitutional provisions concerning sovereignty and by Malaysia, and whether a dispute on their interpretation can be unilaterally referred to arbitration or
citizenship and their significance. 6. The reasons why the Extradition Act which was enacted in 1968 and the basic scheme of the Act. national law or international law? 7. The reasons why the State Immunity Act which was enacted in 1979 and the scheme of the Act. Is State Immunity governed by national law or international law? Is extradition governed by
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.B INTERNATIONAL LAW AND COLONIAL SINGAPORE
.1 INTERNATIONAL LAW
AND
WESTERN COLONIAL EXPANSION
Relations among political entities in Asia and other parts of the world must have developed a set of principles and rules for the conduct of relations. However, the development of modern public international law is usually traced back to the Peace of Westphalia in 1648. embroiled much of the European continent. that recognized no superior authority. The 'law of nations developed in Europe, and for many generations it was dominated by the nation States of Europe. The great western powers of Britain, France, Spain, Portugal, the United States, Russia, Austria, Prussia and the Netherlands dominated the international community beginning in the late eighteenth century. By the late nineteenth century they had subdued most of the non-European States by conquest or other forms of domination. They developed principles such as freedom of the seas, conquest and cession that were necessary for their expansion for purposes of trade and commerce. They gave companies such as the British East India Company special privileges to perform state functions in overseas territories. In stronger States such as China and Japan, the Western colonial powers used treaties which gave special privileges to Europeans for trade and commerce and which provided that Europeans were not subject to local jurisdiction. trading ports for Western powers. International was not extended to outside of Europe until the end of the eighteenth century and beginning of the nineteenth century. It was first extended to the States that succeeded the European colonies in North and South America. By the mid-nineteenth century Turkey (home of the Ottoman Empire) was accepted as the first non-Christian State. In the early twentieth century Persia, Japan and China were accepted into the club of civilized nations. Armed force was often used to extract unequal treaties imposing diplomatic relations and establish The Peace of Westphalia followed the Thirty Years' War, a European religious conflict that The Peace of Westphalia established the notion of number of independent political entities States
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During the age of European expansion most of the nations in Asia and Africa became colonial possessions of the European powers. In Asia, Britain held was is now known as India, Pakistan, Sri Lanka, Myanmar, Malaysia, Singapore, Brunei and Hong Kong; France held Cambodia, Laos and Vietnam; the Dutch held Indonesia; and Portugal held enclaves in Goa, Macao and East Timor. In the late 19 th century Japan also joined the colonial powers, and took control over Taiwan, Korea, and Manchuria. The development of modern international law began when the League of Nations was established in 1920, at the end of World War I, as an international organization with the purpose of maintaining peace among States. President Woodrow Wilson of the United States was the principle proponent, even though he was unable to persuade his own government to join. The 42 original members of the League included 16 from Europe, 16 from South America, 5 from Asia (China, India, Iran, Japan and Thailand), 2 from Africa (South Africa and Liberia), plus Canada, Australia and New Zealand. Colonial territories or possessions were known by different names. The key characteristic, however, was that they were not independent and had no international legal personality. They colonial power usually retained sovereign authority adopt laws and regulations applicable in the colonies. The colonial powers also represented the colonies in terms of international relations, and had the authority to apply international conventions to the colonies. The colonial powers usually also retained control over the defense matters.
.2 UNITED NATIONS & DECOLONIZATION

The United Nations was established in 1945, at the end of World War II. The main purposes of the United Nations, as set out in Article 1 of the United Nations Charter, were to maintain international peace and security; to develop friendly relations among peoples based on respect for the principle of equal rights and self-determination of peoples; and to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for Part 1. Singapore Law and
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human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion. The fundamental principles upon which the United Nations was established are set out in Article 2 of the Charter. They include: sovereign equality of members; good faith fulfillment of obligations; peaceful settlement of disputes; non-use of force in international relations; and non-intervention in matters essentially within the domestic jurisdiction of States. As the number of developing
After the formation of the United Nations many peoples under colonial rule struggled to achieve independence. countries in the United Nations increased, their main focus became decolonization. The most important General Assembly Resolution adopted during this period was GAR 1514 of 14 December 1960, which declared: 1. that the subjugation of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights and is contrary to the Charter of the United Nations all peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development inadequacy of political, economic, social or educational preparedness should never serve a pretext for delaying independence all armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations
2.
3.
4.
5.
GAR 1514 provided the basis for the process of decolonization which has resulted since 1960 in the creation of many States which are today members of the United Nations. In the 1975 Advisory Opinion in the Western Sahara Case, the International Court of Justice accepted that the principle of self-determination was part of customary international law. In support of its decision, it cited the GAR 1514 and other resolutions of the UN General Assembly. In commenting on the right of self-determination, Singapore Legal System 2009 International Law Part 1. Singapore Law and
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the Court emphasized the basic need to take account of the wishes of the people concerned. In Asia, the following States were original members of the United Nations in 1945: China, India, Iran and Philippines. The following Asian countries achieved independence and joined the United Nations after 1945: Thailand (1946), Pakistan (1947), Burma/Myanmar (1948), Indonesia (1950), Cambodia (1955), Lao PDR (1955), Nepal (1955), Sri Lanka (1955), Japan (1956), Malaysia (1957), Mongolia (1961), Singapore (1965), Bangladesh (1975), Papua New Guinea (1975), Viet Nam (1977), Brunei Darussalam (1984), Korea DPRK (1991), Republic of Korea (1991) and Timor-Leste (2000). The Chinese Government on Taiwan was represented China at the United Nations until 1972, when the Government of the Peoples Republic of China in Beijing was recognized as representing China at the United Nations.
.3 SELF-GOVERNMENT
TO INDEPENDENCE FOR
SINGAPORE
The British agreed in 1955 to grant the Federation of Malaya independence in 1957. There attitude toward the future of Singapore was summed up by Minister Mentor Lee Kuan Yew in The Singapore Story on pages 224-5 as follows: The Federations political advance altered the outlook of Singapore. Up to then there had been chance that Malaya would not be granted independence until Singapore was a part of it. Now Singapore was out on a limb. The British plan was to have an independent Malaya with Malays in charge Malays who would nevertheless need them for some time to help govern the country and fight the communists while they kept Singapore as a colony indefinitely because of its strategic value to Britain, Australia and New Zealand. Singapore was likely to become at best a self-governing territory with all the trappings of independence but without real sovereignty, and the last word on defence, security and foreign policy would stay in British hands. When Singapore began constitutional talks with the United Kingdom in 1956 under David Marshall, its position was set out in a resolution adopted by the Singapore Legislative Assembly as follows: The Assembly instructs the all-party delegation . . . to seek forthwith for Singapore the status of an independent territory within the Commonwealth, and to offer an agreement between the United Kingdom government and the Singapore government Singapore Legal System 2009 International Law Part 1. Singapore Law and
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whereby the United Kingdom would in respect of Singapore exercise control of external defence and give guidance in foreign relations other than trade and commerce. When Singapore began the second round of constitutional talks in 1957 the mandate it had from the Legislative Assembly read as follows: To secure from her Majestys Government the status of a selfgoverning state with all the rights, powers and privileges pertaining to internal affairs, and the control of trade, commerce and cultural relations in external affairs. Before Singapore joined the Federation of Malaya with Sarawak and Sabah to establish Malaysia, a referendum was held in which people were asked whether they agree to merger as set out in a Government White Paper. The approval rate for merger was 71%. When Singapore joined Malaysia in 1963 sovereignty over Singapore was formally transferred from the United Kingdom to Malaysia. However, Minister Mentor Lee Kuan Yew points out in The Singapore Story that on behalf of Singapore, he formally declared independence on 31 August 1963, ahead of the formation of Malaysia on 16 September 1963.
.4 SUCCESSION
TO
TREATIES
UPON INDEPENDENCE
The International Law Commission (ILC) drafted a convention on the succession of States to treaties in the 1970s in order to provide more stability in international relations when new States were created. It was adopted in 1978 and is known as the Vienna Convention on the Succession of States in Respect of Treaties. As in most of their conventions, the ILC was attempting to set out a set of rules which was partly a codification of customary international law and partly progressive development of international law. It is interesting to consider how the provisions in the 1978 Convention would apply to Malaysia and Singapore when they became independent in 1957 and 1965. Another issue is how the rules of state succession to treaties would apply when Singapore joined Malaysia in 1963. While they were colonies, the British Government would have entered into various treaties on behalf of the Malay States and Singapore since it was responsible for their foreign relations. Also, the British Government would have become a party to some international conventions and declared that Singapore Legal System 2009 International Law Part 1. Singapore Law and
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they would apply not only in the United Kingdom, but also in Her Majesties colonial territories and possessions including the Malay States and Singapore. The principles of State succession to treaties would determine whether the new States of Malaysia and Singapore would succeed to those treaties and be bound by them. When Malaysia became independent in 1957, it would be considered under the 1978 Convention to be a newly independent State. Therefore, a clean slate rule would apply. None of the treaties which the United Kingdom had made applicable in the Federation of Malaya would apply to the Federation of Malaya unless it took steps to declare its intention to succeed to such treaties. When the states of Singapore, Sarawak and Sabah joined the Federation of Malaya to form the new entity called Malaysia in 1963, the case would be characterized as one of two or more States uniting to form one successor State. According to the 1978 Convention, the principle that would apply would be continuity. Unless it was otherwise agreed, any treaty in force at the date of the succession of States in respect of any of them would continue in force in respect of the successor State, but only in respect of the part of the territory of the successor State in respect of which the treaty was in force at the date of the succession of States. When Singapore separated from Malaysia in 1965 and became an independent State, the case would be characterized as a case of part of a State separating to become a separate State. continuity. The rationale behind the clean slate principle is that the former colonial power may have applied treaties to the former colony to further its own economic and political interests rather than the interests of the people in the colony. Therefore, the newly independent State should have a right to decide which of the treaties if wishes to succeed to. The rationale of the continuity principle is that it is in the interests of all of the States and the rest of the international community to have stability in international relations, so that treaty relations should continue after the change in political status. According to the 1978 Convention, the principle that should apply in this case would also be
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When Singapore separated from Malaysia in 1965 and became independent, should Singapore have followed the continuity principle of the clean slate principle with respect to treaties entered into by the UK prior to 1963 and applied to Singapore? What about treaties entered into by Malaysia between 1963 and 1965, during merger? Should Singapore have succeeded to them? If you were advising the Singapore government at this time, how would you advise them?
.5 STANISLAUS KROFAN & ANOR
PUBLIC PROSECUTOR
Federal Court, Singapore, 5 October 1966 Wee Chong Jin CJ, Tan Ah Tah FJ, Ambrose J 1967 Malayan Law Journal 133.1 Wee Chong Jin CJ 1. The appellants were tried, convicted and sentenced by the High Court in Singapore on the following charge: That you (1) Stanislaus Krofan (2) Andres Andea, on or about 14 April 1965 at about 9.20pm at Tanjong Rhu, Singapore, which is a security area, did carry without lawful authority 43 lbs of explosives, and thereby committed an offence under s 57(1)(b) and punishable under s 57 (1) of the Internal Security Act, 1960. 2. We propose to set out only those facts which are material for determining the questions raised in this appeal. The appellants on the evening of 14 April 1965 came into Singapore from one of the nearby Indonesian islands in a boat which carried no lights. They came ashore carrying with them explosives which they claimed they had been ordered by their superiors to explode in Singapore. They claimed they were members of the armed forces of Indonesia though at the time of their entry into Singapore they were wearing civilian clothing. They were apprehended without offering any resistance immediately after they set foot on Singapore soil with the explosives in their physical possession. At the material date there was a state of `confrontation` between Indonesia and Malaysia, of which Singapore was a member State. For the purposes of this appeal it is not disputed that as a result of this state of confrontation, Indonesia and Malaysia were in àrmed conflict` within the meaning of that expression in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter referred to as the 1949 Geneva Prisoners of War Convention). 3. When the trial commenced before T Kulasekaram J on 17 September 1965 Singapore was no longer a member State of Malaysia, having been separated from Malaysia on 9 August 1965. The appellants were represented by counsel at the trial who took a preliminary point that as the appellants claimed to be `prisoners of war, some competent body has to decide whether they are or not`; `that so far no competent body has given any verdict as to the status whether they are prisoners of war or not` and that ìf they are then this court cannot try them.` On this point counsel for the prosecution replied to the effect that if the appellants were claiming to be protected prisoners of war within the meaning of the 1949 Geneva Prisoners of War Convention, the case for the prosecution would be that on the facts they did not come within the ambit of its art 4. Singapore Legal System 2009 International Law Part 1. Singapore Law and
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4. Unfortunately this issue was not tried as a preliminary issue and no evidence was led to enable the trial judge to arrive at a decision on it nor apparently did the trial judge rule on it before the trial proceeded with the prosecution calling evidence to support the charge. After the defence had been called upon and both appellants had concluded giving their evidence it would appear from the record that the trial judge was invited, at that late stage, to decide whether or not on the evidence before him the appellants fell within the definition of prisoners of war as defined in article 4 of the 1949 Geneva Prisoners of War Convention. The trial judge however made no definite finding on that issue and after indicating he had doubts as to what their status was, made `no order` to enable their status to be determined by à competent tribunal` as provided under article 5. The trial judge however stated Àpart from the fact that they may enjoy this protection under the convention as prisoners of war, the prosecution has abundantly proved the case that the offence has been committed.` 5. Five days later the trial was resumed, it would appear at the request of the prosecution, to clarify the situation which had arisen as the result of the `no order` made by the trial judge and suffice it for us to say that the judge attempted to clarify the situation by adjourning the trial until the status of the appellants had been determined by à competent tribunal` as provided under article 5. 6. The prosecution appealed to the Federal Court against the order of adjournment but the Federal Court held that it had no jurisdiction to hear an appeal against an order of adjournment made by the High Court in the exercise of its original criminal jurisdiction (see [1966] 1 MLJ ix). 7. On 29 April 1966 the adjourned proceedings were resumed and although the prosecution raised a new argument that the 1949 Geneva Prisoners of War Convention was not part of the law of Singapore at the material date even though it was then a member State of Malaysia, the trial judge declined to deal with that argument. He, however, took the unusual course of convicting the appellants on the charge against them on the ground that it was desirable to have finality to the matter. He held that the prosecution had proved its case to his entire satisfaction in respect of both appellants on the charge against them and convicted them. 8. The first question raised in this appeal is whether or not the 1949 Geneva Prisoners of War Convention was part of the domestic law of Singapore on 14 April 1965. The prosecution`s argument that it was not part of the law of Singapore at that date is put thus. This convention was one of four conventions signed at Geneva on 12 August 1949 by a large number of states dealing respectively (1) with wounded and sick members of the armed forces in the field; (2) with wounded, sick and shipwrecked members of the armed forces at sea; (3) with treatment of prisoners of war; and (4) with protection of civilian persons in time of war. Singapore and Malaysia were not signatories to these four conventions as they were not then independent countries. 9. In July 1957 these conventions became part of the domestic law of the United Kingdom by virtue of the Geneva conventions Act, 1957, though the United Kingdom as a signatory state ratified it at a later date in September 1957. In April 1962 these Conventions became part of the domestic law of the then Federation of Malaya by virtue of the Geneva Conventions Act, 1962, though Malaya acceded to it at a later date in 1962. Singapore was then not a member State of the Federation of Malaya. 10. On 16 September 1963 Singapore with the States comprising the Federation of Malaya and the Borneo States became a member State of Malaysia. Under s 73(2) of the Malaysia Act which was enacted by the parliament of the Federation of Singapore Legal System 2009 International Law Part 1. Singapore Law and
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Malaya and which came into force on 16 September 1963 it was provided as follows: Any present law of the Federation passed or made on or after the day this Act is passed shall extend to any part of Malaysia to which it is expressed to extend; but save as aforesaid no present law of the Federation shall extend to any of the Borneo states or to Singapore, unless or until it is so extended by a law passed or made as aforesaid. 11. Section 74 of the Malaysia Act enabled the Yang di-Pertuan Agong by order to extend to Singapore or to declare to be federal law any present law of the Federation of Malaya relating to matters about which Parliament has power to make laws. During the period when Singapore was part of Malaysia no order was promulgated by the Yang di-Pertuan Agong extending the operation of the Geneva Conventions Act 1962 to Singapore. 12. The position then, so the argument goes, is that unless the 1949 Geneva Conventions were part of the domestic law of Singapore immediately prior to 16 September 1963, they were at all material times not part of the domestic law of Singapore. They were not part of the domestic law of Singapore immediately prior to 16 September 1963 because, although Her Majesty the Queen of England could under s 8 of the Geneva Conventions Act 1957 by order in council direct that any of the provisions of that Act shall extend to any colony, no such order in council extending the provisions of that Act to Singapore was ever made. 13. The facts and circumstances on which this new argument has been based are unusual and unique and in all probability will remain unique. To decide it would involve a consideration of many aspects of international law on which there seems to be no clear consensus of views and a consideration of the nature of multipartite international treaties and the extent to which they are or should be applied by domestic courts. It seems to us, in all the circumstances and as it has been raised at a very late stage of the whole proceedings that the proper course for us to adopt would be to decline to decide it and to proceed to deal with this appeal on the assumption that the 1949 Geneva Conventions are applicable to Singapore at all material times. 14. On that assumption the next question is whether or not the appellants were prisoners of war within the meaning of art 4 of the 1949 Geneva Prisoners of War Convention. It is not in dispute that on the facts the present appellants are not persons belonging to the category set out in art 4A(2). Counsel for the appellants submitted that they fall within the category set out in art 4A(1) which is in the following terms: (A) Prisoners of war, in the sense of the present convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy; (1) Members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 15. The undisputed facts are that the appellants came to Singapore at night in a boat which carried no lights, wearing civilian clothing and carrying explosives with them for the purpose of exploding these explosives in Singapore at a time when there was a state of armed conflict between Indonesia and Malaysia of which Singapore was then a part. On those facts it seems clear, assuming they were members of the armed forces of Indonesia, that they entered Singapore as saboteurs to commit acts of sabotage.
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16. The question therefore, is whether members of the armed forces of a party to the conflict who enter enemy territory dressed in civilian clothing as saboteurs are prisoners of war in the sense of the said Geneva Convention. 17. When there is a state of war between two or more States, the belligerent States have under international law customarily or by special convention agreed to comply with certain rules or regulations. These rules or the law of nations respecting warfare have their origin in usages, so called ` usus in bello`,and which through custom and treaties or conventions became legal rules. One of the most important rules of the law of nations respecting warfare for the purposes of this appeal are contained in `Regulations Respecting the Laws and Customs of War on Land` (hereinafter referred to as The Hague Regulations) agreed upon at the Second Peace Conference of 1907 at The Hague. 18. The Hague Regulations contain inter alia provisions dealing with the status of belligerents, the position of prisoners of war and the position of spies. As will be seen from the preamble these regulations do not aim at giving a complete code of the laws of war on land and cases outside their scope still remain the subject of customary rules and usages. Moreover most of their provisions were declaratory of existing customary international law. 19. Under art 3 of the Hague Regulations the armed forces of the belligerents in case of capture by the enemy have the right to be treated as prisoners of war. Arts 4 to 20 enacted exhaustive rules regarding their captivity. Many of these rules were merely declaratory of the existing customary principle that prisoners of war should be treated by their captors in the same manner as their own troops. 20. Under art 29 a spy is defined as a person who acts clandestinely or on false pretences to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party. It goes on to explain that accordingly a soldier not wearing a disguise who has penetrated into the zone of operations of the hostile army for the purpose of obtaining information, is not a spy. 21. Under arts 30 and 31 a spy taken in the act shall not be punished without previous trial and a spy, who after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war. 22. The provisions of the Hague Regulations, which we have just referred to, clearly indicate that spies need not on capture be treated as prisoners of war and this is in conformity with existing customary international law and they further clearly indicate that a member of the armed forces who operates out of uniform in the zone of operations of the enemy for the purpose of obtaining information, is considered a spy. 23. However, the position of members of the armed forces caught out of uniform while acting as saboteurs in enemy territory is not dealt with by the Hague Regulations. In the Saboteurs` Case (Ex parte Quirin ) (1940) 317 US 1; Annual Digest 1941-1942 - Case No 168; 87 Law Ed 3 the Supreme Court of the USA in 1942 treated disguised saboteurs as being in the same position as spies. This view is also held by the authors of the Manual of Military Law Pt III an official publication in 1958 of the United Kingdom War Office at para 96 p 34 where it is stated `Members of the armed forces caught in civilian clothing while acting as saboteurs in enemy territory are in a position analogous to that of spies.` We are of the opinion that this view does not offend against the rules of the law of nations respecting warfare and indeed states the position under customary international Singapore Legal System 2009 International Law Part 1. Singapore Law and
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law. It seems to us to be consistent with reason and the necessities of war to treat a regular combatant in disguise who acts as a saboteur as being in the same position as a regular combatant in disguise who acts as a spy. Both seek to harm the enemy by clandestine means by carrying out their hostile operations in circumstances which render it difficult to distinguish them from civilians. In the case of the `soldier` spy it is universally accepted that he loses his prisoner of war status and need only be treated as any other spy would be treated. There seems no valid reason therefore why a `soldier` saboteur, who by divesting himself of his uniform cannot readily be distinguished from a civilian, should not also be treated as any other saboteur would be treated. Both, by reason of their having purposely divested themselves of the most distinctive characteristic of a soldier, namely his uniform, have forfeited their right on capture to be treated as other soldiers would be treated i.e. as prisoners of war. 24. We will now examine the position under the 1949 Geneva Prisoners of War Convention. Under art 4A(1) persons belonging to the category of `members of the armed forces` of a party to the conflict are prisoners of war. Has this definition of prisoners of war altered the position of the `soldier` spy or `soldier` saboteur who has divested himself of his uniform? We are of the opinion it has not. The conditions of modern warfare are not such as to make the spy or the saboteur any less dangerous or more easily distinguishable or more easily apprehended than at the time of the Hague Regulations. As we have mentioned, the Hague Regulations gave the status of prisoners of war to `members of the armed forces` of the belligerents. The words used in art 4A(1) of the Geneva Convention and art 3 of the Hague Regulations to describe regular combatants are identical namely is `members of the armed forces.` In our opinion the principle applicable remains the same, namely, that a regular combatant who chooses to divest himself of his most distinctive characteristic, his uniform, for the purpose of spying or of sabotage thereby forfeits his right on capture to be treated as other soldiers would be treated i.e. as a prisoner of war. If such a spy or a saboteur is tried under the domestic legislation of the detaining power such trial can take place in camera, no notification is required to any Protecting Power and no rights of communication under art 107 of the 1949 Geneva Prisoners of War Convention exist. However, he must be treated with humanity and afforded a fair and regular trial. 25. In the present case the appellants were charged with having committed an offence under the domestic legislation of Singapore, they were represented by counsel at the trial, the trial was conducted in open court before a judge of the High Court in accordance with the rules of procedure applicable. In fact they were accorded the same treatment and trial as anyone else in Singapore would be who is accused of having committed a similar offence. 26. We are therefore of the opinion that the appellants are not prisoners of war within the meaning of art 4 of the said Geneva Convention and there can be no question that they have not been treated with humanity or not been granted a fair and regular trial. 27. The only other question raised by the appellants that we need to deal with is the point that there was a miscarriage of justice because the trial judge after holding that there was a doubt as to the status of the appellants nevertheless convicted them in order to have finality on the matter. As the doubt in the mind of the trial judge is only as to the status of the appellants and as, for the reasons we have already set out, we are of the opinion that the appellants on the undisputed facts are not entitled to the status of prisoners of war, we consider that no substantial miscarriage of justice has occurred and accordingly acting under the proviso to s 60 of the Courts of Judicature Act 1964 we dismiss this appeal and affirm the conviction and the sentences. Singapore Legal System 2009 International Law Part 1. Singapore Law and
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Appeals dismissed.
.C SINGAPORE CONSTITUTIONAL DOCUMENTS & INTERNATIONAL LAW
.1 INTRODUCTORY NOTE
When Singapore separated from Malaysia and became an independent State in 1965, it was necessary for the Governments of Malaysia and Singapore to give legal effect to this change. We will examine two of the key constitutional documents to see how this was accomplished and how issues such as citizenship, succession to state property and succession to treaties were handled. We will also see examine the provision relating to the earlier water agreements which had been entered into between the governments of Singapore and Johor.
.2 INDEPENDENCE
OF
SINGAPORE AGREEMENT, 1965
AN AGREEMENT RELATING TO THE SEPARATION OF SINGAPORE FROM MALAYSIA AS AN INDEPENDENT AND SOVEREIGN STATE Article I This Agreement may be cited as the Independence of Singapore Agreement, 1965. Article II Singapore shall cease to be a State of Malaysia on the 9th day of August, 1965, (hereinafter referred to as Singapore Day) and shall become an independent and sovereign state separate from and independent of Malaysia and recognised as such by the Government of Malaysia; and the Government of Malaysia will proclaim and enact the constitutional instruments annexed to this Agreement in the manner hereinafter appearing. Article III The Government of Malaysia will declare by way of proclamation in the form set out in Annex A to this Agreement that Singapore is an independent and sovereign state separate from and independent of Malaysia and recognised as such by the Government of Malaysia. Article IV The Government of Malaysia will take such steps as may be appropriate and available to them to secure the enactment by the Parliament of Malaysia of an Act in the form set out in Annex B to this Agreement and will ensure that it is made operative as from Singapore Day, providing for the relinquishment of sovereignty and jurisdiction of the Government of Malaysia in respect of Singapore so that the said sovereignty and jurisdiction shall on such relinquishment vest in the Government of Singapore in accordance with this Agreement and the constitutional instruments annexed. Singapore Legal System 2009 International Law Part 1. Singapore Law and
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Article V The parties hereto will enter into a treaty on external defence and mutual assistance providing that: (1) the parties hereto will establish a joint defence council for purposes of external defence and mutual assistance; (2) the Government of Malaysia will afford to the Government of Singapore such assistance as may be considered reasonable and adequate for external defence, and in consideration thereof, the Government of Singapore will contribute from its own armed forces such units thereof as may be considered reasonable and adequate for such defence; (3) the Government of Singapore will afford to the Government of Malaysia the right to continue to maintain the bases and other facilities used by its military forces within Singapore and will permit the Government of Malaysia to make such use of these bases and facilities as the Government of Malaysia may consider necessary for the purpose of external defence; (4) each party will undertake not to enter into any treaty or agreement with a foreign country which may be detrimental to the independence and defence of the territory of the other party. Article VI The parties hereto will on and after Singapore Day co-operate in economic affairs for their mutual benefit and interest and for this purpose may set up such joint committees or councils as may from time to time be agreed upon. Article VII The provisions of Annex J and K of the Agreement relating to Malaysia dated the 9th day of July, 1963 are hereby expressly rescinded as from the date of this Agreement. Article VIII With regard to any agreement entered into between the Government of Singapore and any other country or corporate body which has been guaranteed by the Government of Malaysia, the Government of Singapore hereby undertakes to negotiate with such country or corporate body to enter into a fresh agreement releasing the Government of Malaysia of its liabilities and obligations under the said guarantee, and the Government of Singapore hereby undertakes to indemnify the Government of Malaysia fully for any liabilities, obligations or damage which it may suffer as a result of the said guarantee. In witness whereof, the undersigned, being duly authorised thereto, have signed this Agreement. Done this 7th day of August, 1965, in two copies of which one shall be deposited with each of the Parties.
.3 INDEPENDENCE B
OF
SINGAPORE AGREEMENT, 1965, ANNEX
An Act to amend the Constitution of Malaysia and the Malaysia Act BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang diPertuan Agong with the advice and consent of the Dewan Negara and Dewan Raayat in Parliament assembled, and by the authority of the same, as follows:
Page 17
1. Short title. This Act may be cited as the Constitution and Malaysia (Singapore Amendment) Act, 1965. 2. Provision for Singapore to leave Malaysia. Parliament may by this Act allow Singapore to leave Malaysia and become an independent and sovereign state and nation separate from and independent of Malaysia. 3. Separation of Singapore from Malaysia, independence, sovereignty and recognition. Singapore shall cease to be a State of Malaysia on the 9th day of August, 1965, (hereinafter called Singapore Day) and shall thereupon become an independent and sovereign state and nation separate from and independent of Malaysia and recognised as such by the Government of Malaysia; and accordingly the Constitution of Malaysia and the Malaysia Act shall thereupon cease to have effect in Singapore except as hereinafter provided. 4. Retention of Singapores executive and legislative powers. The Government of Singapore shall on and after Singapore Day retain its executive authority and legislative powers to make laws with respect to those matters provided for in the Constitution. 5. Transfer of executive and legislative powers of Parliament. The executive authority and legislative powers of the Parliament of Malaysia to make laws for any of its constituent States with respect to any of the matters enumerated in the Constitution shall on Singapore Day cease to extend to Singapore and shall be transferred so as to vest in the Government of Singapore. 6. Transfer of sovereignty and jurisdiction etc. The Yang di-Pertuan Agong shall on Singapore Day cease to be the Supreme Head of Singapore and his sovereignty and jurisdiction, and power and authority, executive or otherwise in respect of Singapore shall be relinquished and shall vest in the Yang di-Pertuan Negara, the Head of State of Singapore. 7. Continuation and effect of present laws. All present laws in force in Singapore immediately before Singapore Day shall continue to have effect according to their tenor and shall be construed as if this Act had not been passed in respect of Singapore subject however to amendment or repeal by the Legislature of Singapore. 8. Temporary provision as to jurisdiction and procedure of Singapore Courts. Until other provision is made by the Legislature of Singapore, the jurisdiction, original or appellate, and the practice and procedure of the High Court and the subordinate Courts of Singapore shall be the same as that exercised and followed immediately before Singapore Day, and appeals from the High Court shall continue to lie to the Federal Court of Appeal of Malaysia and then to the Privy Council in like manner. 9. Transfer of property and succession to rights, liabilities and obligations. All property, movable and immovable, and rights, liabilities and obligations which before Malaysia Day belonged to or were the responsibility of the Government of Singapore and which on that day or after became the property of or the responsibility of the Government of Malaysia shall on Singapore Day revert to and vest in or devolve upon and become once again the property of or the responsibility of Singapore.
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10. Transfer of Singapore officers. (a) All persons, including members of the Armed Forces, the Police Force, the Courts and the Judiciary, and all others who immediately before Malaysia Day were officers employed by the Government of Singapore and who on that day or after became officers employed by the Government of Malaysia shall on Singapore Day become once again officers employed by the Government of Singapore. (b) All persons who between Malaysia Day and Singapore Day were engaged by the Government of Malaysia for employment in those departments which were departments of the State of Singapore before Malaysia Day shall on Singapore Day become forthwith officers employed by the Government of Singapore. 11. Singapore Senators and members of Parliament. The two Senators and fifteen Members of Parliament from Singapore shall on Singapore Day cease to be members of the Senate and the House of Representatives respectively. 12. Singapore citizenship. A citizen of Singapore shall on Singapore Day cease to be a citizen of Malaysia. 13. International agreements etc. relating to Singapore. Any treaty, agreement or convention entered into before Singapore Day between the Yang di-Pertuan Agong or the Government of Malaysia and another country or countries, including those deemed to be so by Article 169 of the Constitution of Malaysia shall in so far as such instruments have application to Singapore, be deemed to be a treaty, agreement or convention between Singapore and that country or countries, and any decision taken by an international organisation and accepted before Singapore Day by the Government of Malaysia shall in so far as that decision has application to Singapore be deemed to be a decision of an international organisation of which Singapore is a member. In particular as regards the Agreement on External Defence and Mutual Assistance between the Government of the United Kingdom and the Government of the Federation of Malaya of 12th October, 1957, and its annexes which were applied to all territories of Malaysia by Article VI of the Agreement Relating to Malaysia of 9th July, 1963, subject to the provision of Annex F thereto (relating primarily to Service lands in Singapore), the Government of Singapore will on and after Singapore Day afford to the Government of the United Kingdom the right to continue to maintain the bases and other facilities occupied by their Service authorities within Singapore and will permit the Government of the United Kingdom to make such use of these bases and facilities as that Government may consider necessary for the purposes of assisting in the defence of Singapore and Malaysia and for Commonwealth defence and for the preservation of peace in South-East Asia. 14. Mutual government guarantees of water agreements. The Government of Singapore shall guarantee that the Public Utilities Board of Singapore shall on and after Singapore Day abide by the terms and conditions of the Water Agreements dated 1st September, 1961, and 29th September, 1962, entered into between the City Council of Singapore and the Government of the State of Johore. The Government of Malaysia shall guarantee that the Government of the State of Johore will on and after Singapore Day also abide by the terms and conditions of the said two Water Agreements.
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.4 2003 MFA PRESS RELEASE
ON
WATER AGREEMENTS
Water Issue is about Sanctity of Agreements, Not about Price Alone, says Singapore Foreign Minister Prof S Jayakumar
1.
Singapore Foreign Minister Prof S Jayakumar today (25 Jan 03) comprehensively rebutted Malaysian allegations on the water issue and other issues. He underscored that the issue goes well beyond the actual price of water supplied by Malaysia to Singapore. He also refuted other allegations such as those concerning Malaysias vacating of the naval base facilities in Woodlands, the signing of the Special Agreement on Pedra Branca, the ASEAN+3 Secretariat proposal and the East Asian Economic Caucus (EAEC). Prof Jayakumar noted that all these allegations had the common objective of painting Singapore as "insensitive", "arrogant" and "unneighbourly" in the conduct of its bilateral relations with Malaysia. But the most strident allegations by Malaysia were on the water issue, including claims that Singapore was "selfish", "profiteering", "legalistic" and "unreasonable". The water issue was the core problem underlying the endless, vitriolic barrage of Malaysian allegations. But the water issue was critical to Singapores survival as a nation, and Singaporeans needed to know the facts and be able to judge for themselves. He released the exchanges of correspondences between the leaders of the two countries, as well as formal diplomatic exchanges concerning this issue. He had to do so because "so much misinformation on the water issue has been put out by Malaysia that it now needs to be countered by conclusive evidence. These documents will clear the air for everyone." The documents, in two volumes, are now part of the official records of Parliament. The documents also include the texts of various Agreements. The fundamental issue was not the price of water, but
2.
Documents, Correspondence and Diplomatic Notes released to set out facts
3.
4.
5.
The fundamental issue: Sanctity of Water Agreements and Separation Agreement
6.
how Singapore was made to pay for any revision. This cannot be done at the will or dictate of Malaysia. Said Prof Jayakumar: "The 1961 and 1962 Water Agreements are enshrined in the Separation Agreement and registered at the United Nations. They are fundamental to our very existence as an independent nation. Neither Singapore nor Malaysia can unilaterally change them. This is the root of the dispute between us."
7.
Prof Jayakumar stated: "Let me be clear. It is not a matter of moneythe significance of the water price, to both countries, is Singapores existence as a sovereign nation separate from Malaysia, and the sanctity of the most solemn agreements which Singapore and Malaysia have entered into." The issue goes well beyond whether Singapore has to pay 45 sen or 60 sen or stick to 3 sen. Singapore will not be impoverished by an increase of 3 to 45 sen per 1,000 gallons if Malaysia were to charge that. Neither would Malaysia be enriched significantly. He stressed that the two Water Agreements are no ordinary agreements. They are so vital that they were confirmed and guaranteed by both Governments in the 1965 Separation Agreement, also known as the Independence of Singapore Agreement. terms of the agreements and the guarantee in the Separation Agreement. Any
8.
9.
10. "This was registered at the United Nations. Both countries have to honour the
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breach of the Water Agreements must call into question the Separation Agreement and can undermine our very existence." Diplomatic Notes sent to Malaysia
11. Prof Jayakumar said in early 2002, various statements made by the Malaysian
Government led to Singapore conveying its serious concerns to the Malaysian Government. A diplomatic note was sent. Singapore pointed out that "pending a binding agreement on the overall package of issues, all legal obligations of the existing Water Agreements and the POA remain in force and are binding on both Governments".
12. In the diplomatic note, Singapore also reminded Malaysia that the Water
Agreements are binding legal arrangements duly confirmed and guaranteed by the Governments of Malaysia and Singapore in the Separation Agreement, and that the Agreement was "the fundamental basis of Singapore's existence as an independent sovereign nation", and that "any variation of the Water Agreements without the consent of both Governments will be a breach of the Separation Agreement that cannot be accepted".
13. Singapore also pointed out that "further negotiations on new agreements
pertaining to the long term supply of water to Singapore can only proceed on the basis that the agreements already concluded cannot be altered without the explicit consent of both parties. Otherwise any new agreements on water can similarly be altered without
consent. This will have grave implications for bilateral relations".
14. On 14 March 2002, the Malaysian Government replied that its "commitment to
resolving the issue of water with Singapore in the context of an agreement on the overall package of issues", and that "at no time was there a suggestion that the Government of Malaysia would depart from such a commitment." It said that any suggestion to the contrary is "misleading and constitutes a gross misinterpretation of the well known position of the Malaysia Government."
15. Singapore, in a diplomatic note dated 25 March 2002, took note of this
commitment and assurances by the Malaysian Government and reiterated Singapores commitment to reach a mutually beneficial agreement on the package of outstanding issues.
16. Malaysian Foreign Minister Syed Hamid also reiterated in his opening statement
at the First Ministerial Meeting on 1 July 2002 in Putrajaya that "Malaysia has repeatedly said that it will honour the 1961 and 1962 Water Agreements until their expiry in 2011 and 2061 respectively". Facts on Package show Singapore was not the unreasonable party 17. Prof Jayakumar gave a full chronology to show that difficulties arose because Malaysia repeatedly changed its position, and shifted their goal posts each time both sides neared an agreement. Singapore had persevered, accommodating as much as possible, and never closed the door on negotiations to reach a mutually beneficial agreement. 18. Prof Jayakumar strongly refuted allegations that Singapore had been the unreasonable party. The package of items under negotiations covered the future supply of water to Singapore for 100 years after 2061; use of Malaysian airspace by RSAF; variations in the terms of the Points of Agreement, by giving additional 12 parcels of land at Bukit Timah for joint development; early return of CPF monies amounting to RM 3 billion to West Malaysians and, later, the Malaysian proposal to replace the Causeway with a bridge and a revision of the current water price. Singapore Legal System 2009 International Law Part 1. Singapore Law and
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19. Singapore was prepared to agree to the items which Malaysia wanted, including a current water price revision, in exchange for Malaysia agreeing to provide Singapore with a long-term supply of water beyond 2061, and RSAF use of Malaysian airspace. "These concessions to Malaysia would have been at a considerable cost to us. They had to be seen in the context of the overall package deal being negotiated," he said.
20. When negotiations on the package deal did not make much progress, Malaysia
suddenly and unilaterally discontinued the package approach. Singapore was even prepared to go along with the Malaysian proposal to decouple water supply from the other items but Malaysia refused to discuss future water supply until 2059, a mere two years before the expiry of the 1962 Water Agreement. It was therefore clear that Malaysia had no intention of striking a deal on future water. How do we go forward?
21. Malaysian leaders spoke about referring the water issue to international arbitration
by the Permanent Court of Arbitration (PCA). Later, Foreign Minister Syed Hamid reportedly said the option of referring the water issue to PCA for arbitration did not arise. This back-tracking was despite statements by PM Mahathir and FM Syed Hamid on two different dates that it should be referred to the PCA. 22. To overcome the impasse, Singapore is prepared to have recourse to arbitration in accordance with the provisions of the Water Agreements. The provisions in Clauses 21 and 19 of the 1961 and 1962 Water Agreements respectively provide for the settlement of disputes arising under the Agreements. Those provisions stipulate that where disputes cannot be resolved, the matter shall be referred to arbitration "in accordance with and subject to the provisions of the arbitration law at the time of such dispute existing in the State of Johore". 23. Indeed, the Johor State Secretary sent letters of 14 August 2002 seeking to give Notice of price review in accordance with Clause 17 and Clause 14 of the 1961 and 1962 Water Agreements respectively to the PUB. As Singapores position was that Malaysia had lost its right of review, the PUB replied on 9 October 2002 that it did not accept that the Johor State Government was still entitled to serve notice to seek a review of the charge of raw water under the two water Agreements. 24. The question of whether there was still a right of review, as well as the quantum of the price revision, can be resolved through legal process as provided for in the two Water Agreements. 25. "This is like the way we are resolving Malaysias claim over Pedra Branca. Both sides will be bound by the decision of the arbitrators. If in fact Johor has not lost its right to revision by not exercising it in 1986/87, then the arbitrators award on the price revision will take effect from the date when Johor gave its Notice to PUB as provided for in the two Agreements," said Prof Jayakumar. Loose talk of war was irresponsible and dangerous 26. Prof Jayakumar said he was concerned about loose talk of war. "Loose talk of war is irresponsible and dangerous. It whips up emotions that could become difficult to control. In such an atmosphere, the Malaysian air force, navy and marine police vessels have continued to make repeated intrusions into Singapore airspace and territorial waters off Pedra Branca. Such provocative actions are not only senseless but dangerous. Senseless because both sides have agreed to refer the dispute to the International Court of Justice and such actions cannot affect the decision of the ICJThe Malaysian Government would have to bear responsibility for the consequences." Singapore Legal System 2009 International Law Part 1. Singapore Law and
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27. Prime Minister Mahathir had said Malaysia would respect international law on territorial disputes and avoid a confrontation with Singapore on Pedra Branca. This is also Singapores position. 28. Prof Jayakumar said it was Singapores intention to have good, not strained, relations with Malaysia. "There is much that both countries can gain by working together. Our common interests far exceed our bilateral differences. We must ensure a firm and level basis for conducting state-to-state relations," he said.
MINISTRY OF FOREIGN AFFAIRS, SINGAPORE, 25 JANUARY 2003
[http://app.mfa.gov.sg/data/2006/press/water/summary.html]
.D INTERNATIONAL LAW AND THE SINGAPORE CONSTITUTION
.1 CONSTITUTIONAL PROVISIONS SOVEREIGNTY
ON THE
PROTECTION
OF
Article 6. No surrender of sovereignty or relinquishment of control over the Police Force or the Armed Forces except by referendum (1) There shall be (a) no surrender or transfer, either wholly or in part, of the sovereignty of the Republic of Singapore as an independent nation, whether by way of merger or incorporation with any other sovereign state or with any Federation, Confederation, country or territory or in any other manner whatsoever; and (b) no relinquishment of control over the Singapore Police Force or the Singapore Armed Forces, unless such surrender, transfer or relinquishment has been supported, at a national referendum, by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act (Cap. 218). (2) For the purposes of this Article "Singapore Armed Forces" means the Singapore Armed Forces raised and maintained under the Singapore Armed Forces Act (Cap. 295), and includes any civil defence force formed under the Civil Defence Act (Cap. 42) and such other force as the President may, by notification in the Gazette, declare to be an armed force for the purposes of this Article; "Singapore Police Force" means the Singapore Police Force and the Special Constabulary established under the Police Force Act (Cap. 235) and any Auxiliary Police Force created in accordance with Part IX of that Act, and includes the Vigilante Corps established under the Vigilante Corps Act (Cap. 343) and such other force as the President may, by notification in the Gazette, declare to be a police force for the purposes of this Article. Article 7. Participation in co-operative international schemes which are beneficial to Singapore Without in any way derogating from the force and effect of Article 6, nothing in that Article shall be construed as precluding Singapore or any association, body or organisation therein from (a) participating or co-operating in, or contributing towards, any scheme, venture, project, enterprise or undertaking of whatsoever nature, in conjunction or in concert with any other sovereign state or with any Federation, Singapore Legal System 2009 International Law Part 1. Singapore Law and
Page 23
Confederation, country or countries or any association, body or organisation therein, where such scheme, venture, project, enterprise or undertaking confers, has the effect of conferring or is intended to confer, on Singapore or any association, body or organisation therein, any economic, financial, industrial, social, cultural, educational or other benefit of any kind or is, or appears to be, advantageous in any way to Singapore or any association, body or organisation therein; or (b) entering into any treaty, agreement, contract, pact or other arrangement with any other sovereign state or with any Federation, Confederation, country or countries or any association, body or organisation therein, where such treaty, agreement, contract, pact or arrangement provides for mutual or collective security or any other object or purpose whatsoever which is, or appears to be, beneficial or advantageous to Singapore in any way. Article 8. No amendment to this Part except by referendum (1) A Bill for making an amendment to this Part shall not be passed by Parliament unless it has been supported, at a national referendum, by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act (Cap. 218). (2) In this Article, amendment includes addition and repeal.
.2 CONSTITUTIONAL PROVISIONS
Article 120. Status of citizen of Singapore
ON
CITIZENSHIP
(1) There shall be a status known as citizen of Singapore. (2) The status of a citizen of Singapore may be acquired (a) by birth; (b) by descent; (c) by registration or, before the commencement of this Constitution, by enrolment; or (d) by naturalisation. Article 121. Citizenship by birth (1) Subject to this Article, every person born in Singapore after 16th September 1963 shall be a citizen of Singapore by birth. (2) A person shall not be a citizen of Singapore by virtue of clause (1) if at the time of his birth (a) his father, not being a citizen of Singapore, possessed such immunity from suit and legal process as is accorded to an envoy of a sovereign power accredited to the President; (b) his father was an enemy alien and the birth occurred in a place then under the occupation of the enemy; or (c) neither of his parents was a citizen of Singapore. (3) Notwithstanding clause (2) (c), the Government may, where it considers it just and fair and having regard to all the circumstances prevailing at the time of the application, confer citizenship upon a person born in Singapore.
Page 24
.E EXTRADITION
.1 STATEMENT OF MINISTER AT SECOND READING EXTRADITION BILL ON 22 MAY 1968
OF
1. The Minister for Law and National Development (Mr E. W. Barker): 2. Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." 3. Sir, this Bill seeks to provide for the extradition of fugitives - in other words, the surrender of a fugitive criminal by one state to another in which he is liable to be punished or has been convicted. 4. It may be of interest to Members if, before moving on to the historical background of the law of extradition that is at present in force in Singapore, I say a few words on the theoretical basis of this law. In theory no state can be called upon to enforce through its tribunals the penal laws of other states, or to try a person for an offence alleged to have been committed beyond its frontiers, if a man commits a crime in China, you do not try him in Singapore, and vice versa. The principles of the independence and sovereignty of each country militate against any such obligation. It has, however, for a long time been recognised by various states that it is not in their interest to afford refuge to criminals from other countries. On the contrary, it is in their interests to return the fugitive criminal for trial and punishment to the state in which the offence was committed or in which the criminal was convicted. 5. Involving, therefore, as it does the extension of the criminal jurisdiction of one state beyond its own territorial limits into those of another, extradition forms, at the present day, an important and integral part of Public International Law, and is as such, apart from international comity, generally regulated by mutual arrangement or treaty between the various states. Most states in the modern world have extradition laws in force. 6. With these few remarks, I will now survey the historical background to the existing extradition laws in Singapore. 7. Our Laws have been derived from two English Statutes - the Extradition Act, 1870, which applies to extradition to foreign countries and the Fugitive Offenders Act, 1881, which applies to extradition among Commonwealth countries. Both these Statutes have outlived their usefulness. Not only is their continued existence incompatible with the independent and sovereign status of Singapore but also, since they belong to another age, they fail to take into account modern concepts that have now become part of extradition laws in the Commonwealth. For example, they do not provide for a state to refuse extradition of a person who is to be charged with or surrendered for a political offence or for an offence of a political character. Apart from anything else, it is clearly right and proper that Singapore should now be able of its own accord to enter into extradition treaties with foreign states though the treaties already made by the United Kingdom and Malaysia on behalf of Singapore will continue to apply until such time as the Government decides that they should cease so to apply. 8. With regard to Commonwealth countries there will be no necessity to enter into bilateral treaties, for a common scheme for extradition was agreed to at the Commonwealth Law Ministers Conference held in May 1966, in London at which I represented Singapore. It was agreed at that meeting that this common scheme should apply to all Commonwealth countries and is to be included in the legislation of each country; though this does not preclude modification of the general scheme in certain circumstances. The common scheme, which has been Singapore Legal System 2009 International Law Part 1. Singapore Law and
Page 25
written into this Bill, is significant since it incorporates a revised list of agreed extraditable offences, which will have application not only with regard to extradition as between Singapore and other Commonwealth countries, but also (subject to treaty) as between Singapore and foreign states. For the sake of clarity, I should mention at this point that the distinction that is made in the United Kingdom Acts between the expression "extradition" as applying to surrender of fugitive criminals among independent states and the expression "fugitive offenders" as being restricted to cases of surrender as between different parts of the British Commonwealth, now disappears. Indeed, as the Bill makes clear, the provisions dealing with surrender to foreign states follow much the same pattern as those dealing with surrender to Commonwealth countries. 9. Mr Speaker, Sir, Members will notice that the United Kingdom Acts to which I have referred are repealed by this proposed legislation. It will further be observed that the Malaysian Warrants and Summons (Special Provisions) Act, 1965, is also repealed. The reason for this is that the same ground is covered by Part V of the Bill dealing with extradition to and from Malaysia. This Part provides a simple and expeditious procedure for the return of fugitive offenders from Singapore to Malaysia. It is the sort of simplified procedure as between neighbouring countries that was envisaged in the common scheme. Malaysia in its Commonwealth Fugitive Criminals Act, 1967 (No. 54 of 1967) has included corresponding provisions. These provisions provide for Magistrates to issue or endorse warrants rather than the more complicated "requisition to Minister" procedure laid down for surrender of fugitives to foreign and other Commonwealth countries. They also extend to a wider range of offences than is the case with foreign and other Commonwealth countries. 10. The Explanatory Statement to the Bill describes in some detail the nature of the various provisions in the Bill and I do not propose to elaborate on them. 11. In closing, I would, for the information of Members, mention that enabling legislation giving effect to the common scheme has already been enacted in the United Kingdom, Australia and Malaysia - there may well be others. 12. Sir, I beg to move.
.2 EXPLANATORY STATEMENT
TO THE
EXTRADITION BILL 1968
1. This Bill seeks to provide for the extradition of fugitives, and is in general patterned on recent legislation enacted in the Commonwealth of Australia, namely, the Extradition (Commonwealth Countries) Act, 1966 (No. 75 of 1966) and the Extradition (Foreign States) Act, 1966 (No. 76 of 1966). The general scheme of this proposed legislation was agreed to at the Commonwealth Law Ministers Meeting held in London in 1966 though it has been extended to apply to foreign States. 2. The Bill, which is in six Parts, deals with Extradition to foreign States at Part II, Extradition from foreign States at Part III, Extradition to and from declared Commonwealth countries at Part IV and Extradition to and from Malaysia at Part V, and Miscellaneous Matters at Part VI. It is provided in Part II (Extradition to foreign States) that where the Act applies in relation to a foreign State, every fugitive from that State is liable to be apprehended and surrendered to that State, whether the offence in question is alleged to have been committed before or after the date of the coming into operation of the Act or before or after the date when the Act commenced to apply in relation to that State (clause 6). 3. A person is, however, not liable to be surrendered to a foreign State if the offence is of a political character. A person is also not liable to be surrendered to a foreign Singapore Legal System 2009 International Law Part 1. Singapore Law and
Page 26
State unless provision is made by a law of that State or by an Extradition treaty in force between Singapore and that State by virtue of which the person will not (a) be detained or tried in that foreign State for any offence that was or is alleged to have been committed before his surrender, other than the offence to which the requisition for his surrender relates or any other offence of which he could be convicted upon proof of the facts on which that requisition was based; or (b) be detained in that foreign State for the purpose of being surrendered to another country for trial or punishment for any offence that was or is alleged to have been committed before his surrender to that foreign State, other than an offence of which he could be convicted upon proof of the facts on which the requisition referred in paragraph (a) above was based (clause 7). 4. The Minister is expressly debarred from authorising the apprehension, or ordering the surrender, of a fugitive if he has substantial grounds for believing that the requisition for the surrender of the fugitive was made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions, or that if the fugitive is surrendered to that State, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions (clause 8). 5. The procedure is set out for notices to be directed to Magistrates by the Minister (clause 9), for the issue of warrants for the apprehension of fugitives by Magistrates (clause 10), for proceedings after apprehension (clause 11) and for the surrender of the fugitive to the foreign State (clause 12). It is provided that where a person who, in pursuance of Part II, has been committed to prison, or otherwise ordered to be held in custody, is in custody in Singapore at the expiration of two months after (a) the date of the committal or order; or (b) if an application for a writ of habeas corpus has been made by the person, the date of the decision of the court to which the application was made or, where an appeal has been brought from that decision to another court, the date of the decision of the other court, whichever is the later, the High Court, upon application made to it by the person and upon proof that reasonable notice of the intention to make the application has been given to the Minister, shall, unless reasonable cause is shown for the delay, order that person to be released (clause 13). 6. Part III (Extradition from foreign States) provides that where a person accused or convicted of an extraditable crime is, or is suspected of being, in or within the jurisdiction of a foreign State, the Minister may make a requisition to that State for the surrender of the person (clause 15), and where a person accused or convicted of an extraditable crime is surrendered by a foreign State, the person may be brought into Singapore and delivered to the proper authorities to be dealt with according to law (clause 16). 7. Part IV (Extradition to and from declared Commonwealth countries) generally follows the provisions of Part II of the Bill, including the provisions as to nonsurrender in the case of offences of a political nature (clause 20) or for the purpose of prosecutions on account of race, religion, nationality or political opinions (clause 21). Where a Magistrate or a court to which a person has applied for a writ of habeas corpus is satisfied that because the offence in question is of a trivial nature or since the accusation has not been made in good faith or in the interests of justice or in view of the time that has elapsed and having regard to Singapore Legal System 2009 International Law Part 1. Singapore Law and
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all the circumstances, it would be unjust, oppressive or too severe a punishment to surrender the person to a declared Commonwealth country or to surrender him before the expiration of a particular period, the Magistrate or court may order the person to be released, or order the person to be surrendered after the expiration of a specific period allowing him to be released on bail until the expiration of that period, or make such other order as the Magistrate or court thinks just (clause 25). The procedure to be followed on the surrendering of a fugitive to a Commonwealth country is laid down in clause 26; and clause 27 provides for the release of a fugitive who is not conveyed out of Singapore within two months of committal. The Minister may make a requisition to a declared Commonwealth country for the surrender of a person accused or convicted of an extraditable crime who is or is suspected of being in or on his way to that country (clause 29) and such person after surrender may be brought back to Singapore and dealt with according to law (clause 30). A person surrendered to Singapore shall not be prosecuted or detained for offences other than those for which the requisition was made or such other offence as that other country consents to his being prosecuted or detained (clause 31). 8. Part V (Extradition to and from Malaysia) introduces a simplified procedure with regard to the return of fugitive offenders to Malaysia whereby warrants are endorsed by Magistrates. Malaysia in its Commonwealth Fugitive Criminal Act, 1967 (No. 54 of 1967) has made corresponding provision as regards the return of fugitive offenders to Singapore. Part V provides that where a court, a Judge, a Magistrate or an officer of a court in Malaysia has issued a warrant for the apprehension of a person accused or convicted of an offence against the law in Malaysia and the person is, or is suspected of being, in or on his way to Singapore, a Magistrate may, if the warrant is authenticated, authorise the execution of a warrant in Singapore (clause 33). Where a warrant authorising the apprehension of a person is not produced to the Magistrate or he requires further information or proof before indorsing the warrant, he may issue a warrant for the apprehension of the person upon such information and under such circumstances as, in his opinion, justify the issue of the warrant (clause 34). The procedure after apprehension under warrant is set out (clause 35), and (at clause 36) the same power is given to the Magistrate to order the release, etc. of a person if the offence is of a trivial nature or the accusation is not made in the interests of justice as in Part IV of the Bill (and referred to in the preceding paragraph). Where a person apprehended is dissatisfied with an order, or a Magistrate has made an order for the release of an apprehended person or an order for the surrender or admittance to bail of such a person under the terms of which the person is not required to be surrendered to Malaysia within three months after the date of the order, the apprehended person or the person bringing the warrant, as the case may be, may apply to the High Court for a review of the order and the High Court may confirm or vary the order or quash the order and substitute a new order in its place (clause 37). Where a person accused or convicted of an offence, wherever committed, against the law in force in Singapore is surrendered by Malaysia, it is provided that the person may be delivered to the proper authorities to be dealt with according to law (clause 39). 9. Part VI deals with various miscellaneous matters. It provides that where the offence in respect of which a surrender or return of the fugitive is sought was committed on the high seas, in the air or in the territorial waters of Singapore on board any vessel or aircraft coming into any port or aerodrome of Singapore, the Minister or any Magistrate may exercise the powers conferred by the Act (clause 40). Where the Minister receives requisition for the surrender of a fugitive from more than one foreign State or Commonwealth country he may surrender the fugitive to such State or country as he thinks fit (clause 41) and in so deciding Singapore Legal System 2009 International Law Part 1. Singapore Law and
Page 28
shall consider all the circumstances including the circumstances set forth in subclause (2) of that clause. The Minister is empowered to authorise a Magistrate to take evidence for the purposes of a criminal matter pending in a court or tribunal of a foreign State other than a matter relating to an offence of a political character (clause 43). Power is given to the Minister to make rules to carry out the purposes of the Act (clause 44). 10. The Bill provides for the repeal of the United Kingdom Extradition Acts, 1870 to 1935, and the Fugitive Offenders Act, 1881, in so far as they apply to and operate as part of the law of Singapore as well as the repeal of the Extradition Ordinance (Cap. 94) and the Extradition Powers Delegation Ordinance (Cap. 95) and the Warrants and Summonses (Special Provisions) Act, 1965 (M. Act 6 of 1965) and also provides for the saving of warrants in force before the date of the coming into operation of the Act (clause 46).
.F STATE IMMUNITY
.1 STATEMENT OF THE MINISTER ON THE SECOND READING THE STATE IMMUNITY BILL ON 7 SEPTEMBER 1979
The Minister for Law and Science and Technology (Mr E.W. Barker):
1. Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."
OF
2. This Bill deals with a highly complex and technical area of law important to international trade and finance. It codifies the law on sovereign immunity whereby foreign States can claim immunity from the jurisdiction of civil courts and tribunals in Singapore. 3. At present, the matter is governed by common law, where under the doctrine of absolute immunity, a foreign state or any of its agencies is immune from virtually all legal proceedings before our courts. This doctrine has been the subject of a great deal of criticism in the courts in the United Kingdom as well as the Privy Council. These courts have shown a tendency to modify the doctrine to prevent injustice and to bring the common law more in accord with present-day conditions. Many states and agencies of state are nowadays engaged in commercial or trading activities and there is little justification to preclude persons dealing with these states or state agencies in such activities from any legal redress. 4. Both the United States and the United Kingdom have enacted legislation to replace the common law rules of sovereign immunity in application to foreign states or state agencies when engaged in commercial or trading activities. It is considered desirable, not only as a measure of law reform but also to promote Singapore as a financial and commercial centre, that the law on the subject, so far as it concerns commercial or trading activities by states or state agencies, should be clearly established by legislation. 5. It is to be noted that since section 5 of our Civil Law Act provides that the law of England is to be applied in all questions or issues which arise or which have to be decided in Singapore with respect to commercial matters, it is possible that the United Kingdom State Immunity Act can be held to apply to Singapore. As there are certain provisions in the United Kingdom Act which are not appropriate to Singapore, particularly those concerning the European Convention on State Immunity, it is preferable to enact our own legislation so as to preclude the application of the United Kingdom Act to Singapore. This Bill is based on the United Kingdom State Immunity Act, 1978, but has been modified to suit our needs and circumstances. Singapore Legal System 2009 International Law Part 1. Singapore Law and
Page 29
6. Members will note that the Explanatory Statement to the Bill sets out clearly and fully the cases and circumstances in which foreign states or state agencies will not be able to plead immunity before our courts and tribunals. Lastly, I would draw attention to the fact that this Bill is not concerned with diplomatic immunities and privileges or immunity from criminal jurisdiction.
.2 EXPLANATORY STATE
TO THE
STATE IMMUNITY BILL 1979
1. This Bill seeks to codify the law on sovereign immunity whereby foreign States can claim immunity from the jurisdiction of civil courts and tribunals in Singapore. At present the matter is governed by common law which will now be replaced by statutory provisions. Diplomatic immunities and privileges and immunity from criminal jurisdiction are not affected by the Bill. The Bill is substantially based on the State Immunity Act, 1978, of the United Kingdom. . . 2. Clause 3 states the basic principle of the immunity of a foreign State from the jurisdiction of the courts in Singapore but this is subject to the various exceptions contained in the provisions of the Bill. 3. Clause 4 provides that a State is not immune if it has submitted to the jurisdiction of the court. Submission may take place after the dispute giving rise to the proceedings has arisen or by prior written agreement; and a State is deemed to have submitted to jurisdiction if it has instituted the proceedings or intervened in the proceedings (other than to claim immunity or assert an interest in property in certain circumstances). This reverses the common law rule in Kahan v. Pakistan Federation [1951] 2 K.B. 1003. Choice of Singapore law as the proper law is not to be regarded as submission to jurisdiction. 4. Clause 5 provides that a foreign State is not immune as respects proceedings relating to commercial transactions and to contractual obligations (whether a commercial transaction or not) to be performed wholly or partly in Singapore. However, this provision does not apply if the parties to the dispute are States or have otherwise agreed in writing. For the purposes of this provision commercial transaction is defined to mean any contract for the supply of goods or services, any loan or other financial transaction, and any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority. 5. Clause 6 makes special provisions for contracts of employment. A foreign State is not to be immune in proceedings relating to a contract made between the State and an individual where the contract was made in Singapore or the work is to be wholly or partly performed in Singapore. But this provision is not to apply if the individual is a national of the State concerned or at the time when the contract was made the individual was neither a citizen of Singapore nor habitually resident in Singapore. It is also possible for this exception to immunity to be excluded by the parties to the contract. 6. Clause 7 provides that a State is not immune as respects proceedings relating to death, personal injury or damage to or loss of tangible property caused by an act or omission in Singapore. 7. Clause 8 deals with proceedings relating to immovable property in Singapore or relating to both movable and immovable property where the foreign States interest arises by way of succession, gift or bona vacantia. A State is not immune from such proceedings.
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8. Clause 9 provides that a State is not immune as respects certain proceedings relating to patents, trade-marks and similar rights. 9. Clause 10 provides that a State is not immune as respects certain proceedings relating to its membership of a body corporate, unincorporated body or partnership. However, this provision does not apply if agreement to the contrary has been made in writing or if the constitution or other instrument establishing or regulating the body or partnership in question has provided otherwise. 10. Clause 11 relates to proceedings in a Singapore court relating to a dispute which a foreign State has agreed in writing to submit to arbitration. The State is not immune as regards such proceedings. However, the clause does not apply if there is provision to the contrary in the arbitration agreement or if the parties to the agreement are States. 11. Clause 12 deals with the exception from State immunity in Admiralty proceedings relating to ships or their cargo used for commercial purposes. A State is not immune as regards such proceedings. The clause applies to both actions in rem and in personam. 12. Clause 13 provides that a State is not immune as respects proceedings relating to customs duties or excise duties or to taxes on premises occupied for commercial purposes. 13. Clauses 14 and 15 regulate the service of process and transmission of judgments against a foreign State, the time limits for taking various steps in the proceedings and other procedural privileges which must be extended to the State. No order for penalties, injunctions or specific performance can be issued against a State without the States consent. There is to be no execution against State property without consent except against property which is used or intended to be used for commercial purposes. 14. Clause 16 identifies the bodies and organisations which qualify for the immunities and privileges of States under the Bill. A separate entity, owned by a State but distinct from the executive organs of the government of the State in law, has immunity only if it is acting in the exercise of sovereign authority (jure imperii) and if the State itself would be entitled to immunity. A constituent part of a federal State will be treated like a separate entity in the absence of an order made by the President which requires it to be treated as a sovereign State. 15. Clause 17 enables the President to make an order, on the basis of reciprocity, to restrict or extend the immunities and privileges set out in the Bill. 16. Clause 18 provides that a certificate by or on behalf of the Minister for Foreign Affairs is to be conclusive evidence for certain purposes. 17. Clause 19 excludes certain classes of proceedings from the provisions of the Bill. These are proceedings relating to the armed forces of another State while present in Singapore, all criminal proceedings and all proceedings relating to taxation other than those specifically dealt with in the Bill. The clause also makes clear that the Bill does not affect the immunities or privileges applicable in Singapore to diplomatic and consular agents.

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SINGAPORE LEGAL SYSTEM 2009 PART I. SINGAPORE LAW AND INTERNATIONAL LAW Topic 2.

International Law & the History of Singapore

.C Singapore Constitutional Documents & International Law ................................................................................... 15

.D International Law and the Singapore Constitution ..........22

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

.B INTERNATIONAL LAW AND COLONIAL SINGAPORE

WESTERN COLONIAL EXPANSION

Singapore Legal System 2009 International Law

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Topic 2. International Law and Singapore Legal History

.2 UNITED NATIONS & DECOLONIZATION

Singapore Legal System 2009 International Law

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

.5 STANISLAUS KROFAN & ANOR

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

.C SINGAPORE CONSTITUTIONAL DOCUMENTS & INTERNATIONAL LAW

SINGAPORE AGREEMENT, 1965

Topic 2. International Law and Singapore Legal History

SINGAPORE AGREEMENT, 1965, ANNEX

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

.4 2003 MFA PRESS RELEASE

Documents, Correspondence and Diplomatic Notes released to set out facts

The fundamental issue: Sanctity of Water Agreements and Separation Agreement

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

Topic 2. International Law and Singapore Legal History

.D INTERNATIONAL LAW AND THE SINGAPORE CONSTITUTION

.1 CONSTITUTIONAL PROVISIONS SOVEREIGNTY

Topic 2. International Law and Singapore Legal History

Singapore Legal System 2009 International Law

Part 1. Singapore Law and

Topic 2. International Law and Singapore Legal History

.1 STATEMENT OF MINISTER AT SECOND READING EXTRADITION BILL ON 22 MAY 1968

Topic 2. International Law and Singapore Legal History

EXTRADITION BILL 1968

Topic 2. International Law and Singapore Legal History

Topic 2 International Law & History of Singapore

Topic 2 International Law & History of Singapore