Singapore - Your Partner for Legal Solutions in Asia
5.1.1 Adherence to and observance of international law in Singapore foreign policy is well-known. Affirmation of the demands of international law has been a key feature of various foreign policy statements. This is unsurprising. Small states, in particular, benefit from a rule-based and rule of law-based international order. A trading nation like Singapore, in particular, thrives on a relatively predictable global environment. International legal rules help to foster such an environment.
5.1.2 >What is less well-known is how the Singapore courts have actually addressed international law rules that have, on occasion, arisen for consideration before them. While the Constitution of the Republic of Singapore is silent in key respects on the interaction between international law and the Singapore domestic legal system, the executive, legislative and judicial branches in Singapore have all demonstrated a keen appreciation of what international law requires and allows.
5.1.3 This article is an introduction to Singapore’s engagement with international law-making and the rules of international law. It does not focus on any particular area of law or treaty regime. Instead, it seeks to provide a brief introduction to the international law work of the executive, legislative and judicial branches in Singapore, with an emphasis on the work of the Singapore courts.
5.1.4 Aside from the present introductory section, this article is divided into four further sections :-
Section 2: The Treaty Making-Power and the Effect of Treaties in the Domestic Legal Order.
The Executive’s treaty-making power may be used to bind Singapore on the international plane, and that may in turn affect the governance by Singapore law of private law relations. Examples of the latter include the Convention on the Recognition or Enforcement of Foreign Arbitral Awards (the ‘New York Convention’), or the United Nations Convention on Contracts for the International Sale of Goods. Treaties entered into by the executive branch have, however, only a limited legal effect under Singapore domestic law unless incorporated into Singapore law by way of Parliamentary legislation. Therefore, Section II also considers Parliament’s legislative role in this regard, and as a forum in which points of international law may, in any case, be raised for public debate.
Section 3: Treaties and the Singapore Courts addresses points of treaty law that have appeared before the domestic courts of Singapore.
Section 4: The Singapore Courts and International Law deals with how the courts in Singapore have handled other general points of international law arising before them.
Section 5: Conclusion. The article concludes with a few observations about the increasing relevance of international law developments to Singapore and its domestic legal order.
A. The executive branch possesses treaty-making power
5.2.1 The Constitution of the Republic of Singapore does not say that Parliament’s advice and consent is required in executive treaty-making with foreign nations. For that matter, it does not say that the executive branch possesses the treaty-making power of the State. The Constitution is, simply, silent on these matters.
5.2.2 However, Singapore has, effectively, adopted practice in this regard. Parliament’s consent is not sought or deemed to be required, and the executive branch has not been challenged in its exercise of the treaty-making power. It is therefore accepted as a matter of practice that whether there is a treaty in force between Singapore and a particular foreign state, is, or should be, settled by the Executive - Attorney-General v Elite Wood Products (Australia) Pty Ltd and another [1992] 1 SLR(R) 929 at 937. In that case, the Court of Appeal took the view that the question whether an extradition treaty is in force between Singapore and a particular foreign state for the purposes of the Extradition Act (Cap. 103), and therefore whether Part II of the Act applies, should be settled by the executive branch, and that the Court should not be concerned with the question whether a treaty subsists between Singapore and any state.
B. Parliament
(1) The separation of powers doctrine is closely adhered to in Singapore
(2) Only Parliament has the power to translate treaty law into Singapore law
5.2.5 Where the treaty expressly requires its implementation by way of domestic statute, such that failure to do so would amount to a treaty violation, Parliament could still refuse, at least in legal principle, to endorse the decision of the executive branch to enter into the treaty in question by refusing to pass such implementing legislation.
C. Judicial Review
5.2.7 As such, the executive branch could enter into a treaty which requires the implementation of certain rights and duties under Singapore’s domestic law, Parliament could consent to implement what the treaty requires by way of an Act of Parliament, but the courts can review whether provisions of the Act and subsidiary legislation passed pursuant to it are ultra vires the constitution.
A. The Constitution limits the treaty laws that may be translated into Singapore law
5.3.1 As we have seen, Parliament’s power to translate treaty laws into Singapore law is limited by the Constitution as the Singapore Courts will, ultimately, determine the scope and extent of any repugnancy with the Constitution.
B. Parliament may seek to implement any type of treaty in Singapore domestic law
5.3.2 There is no limitation as such in terms of the types of treaty which Parliament could seek to implement in Singapore domestic law.
(1) Parliament may incorporate provisions of treaties to which Singapore is not a party into Singapore law
5.3.3 Indeed, Parliament could even legislate to give effect to treaties to which Singapore is not a party. For example, consider the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled, which was concluded under the auspices of the World Intellectual Property Organization (‘WIPO’) in 2013. One of the stated objectives of the Copyright (Amendment) Act 2014 (Act 22 of 2014) is to afford persons with reading disabilities greater opportunities to access copyrighted works in line with the Marrakesh Treaty even though Singapore is, as yet, not a signatory to the treaty.
(2) Parliament may expand the scope of the terms of the treaty while transforming treaty law into domestic law
(3) Presumption that Parliament intends to adhere to international law
A. Customary international law before the Singapore courts
(1) Local courts generally adhere to the doctrine that customary international law is part of the common law
5.4.1 The Singapore courts have generally adhered to common law orthodoxy in approaching customary rules of international law; namely, that customary international law may be invoked in the Singapore courts as part of the common law.
(2) An international law rule remains subject to the hierarchy of domestic legal sources
5.4.2 Nonetheless, such reception of international law would remain subject to the hierarchy of domestic legal sources. In other words, an international law rule received into Singapore law by way of the common law remains subject to the contrary demands of statute and the Constitution in Singapore. This accounts for the majority of cases in which it has been said that domestic law would prevail in the case of conflict with an incompatible rule of international law.
5.4.3 However, the basic proposition that Singapore law prevails in a conflict between international law and domestic law is said to apply more broadly to conflicts between an international treaty and any Singapore law. But this seemingly broad doctrine must have its limits – an international law rule contained in a statute which conflicts with a common law rule would prevail over the common law rule, for example.
5.4.5 Even in cases where statute grants the Minister the right to make subsidiary legislation on the basis of Singapore’s international law obligations that would (according to the parent statute, in this example) prevail over any inconsistent statutory provision, it is because the international law obligation in question derives its force ultimately from the parent statute– see (e.g.) sections 2(1) and 2(3) of the United Nations Act (Cap. 339).
B. Reception of customary international law in Singapore law
(1) Custom and the Constitution
a. Custom Requires Proof
5.4.8 First, a question was raised about whether the punishment of death by hanging falls under the customary international law prohibition of torture and cruel, inhuman or degrading treatment or punishment. In Yong, Singapore’s Court of Appeal stressed that a customary international law prohibition of the death penalty under the Misuse of Drugs Act (Cap. 185) must, first, be proven. The Court of Appeal found that although a majority of states did not impose the mandatory death penalty, it was insufficient to meet the standard of “extensive and virtually uniform” state practice required for a customary international law rule to be established.
5.4.9 The consular rights of the accused under customary international law also arose for consideration in the earlier-mentioned case of Nguyen. These rights are contained in the Vienna Convention on Consular Relations, 24 April 1963. Singapore was not a party to the Convention at the time, and was not bound by the treaty rule, but the Court of Appeal accepted that an identical rule applies nonetheless to Singapore under customary international law. According to Kan J in the High Court, the Government did not deny the application of the rule to Singapore as a rule of customary international law and this view appears also to have been accepted on appeal where the Court of Appeal went on to cite a recent decision of the International Court of Justice (ICJ) in determining the true meaning of the rule contained in the Vienna Convention.
b. Interplay between customary international law and the Constitution
5.4.10 Second, the Court of Appeal emphasized, as noted above, that although domestic law should, as far as possible, be interpreted consistently with Singapore’s international obligations, there are “inherent limits” on the extent to which Singapore courts may refer to international law norms, such as where the express wording of the Singapore Constitution is not amenable to the incorporation of these norms.
C. International law writings and international decisions may be persuasive before the Singapore courts
5.4.12 On occasion, the Singapore courts have also considered and applied the writings of publicists. In any event, the views of such publicists are carefully scrutinized even if, ultimately, they are to be distinguished from the facts of the case. Such writings particularly of the most qualified publicists should, therefore, be considered to be of some persuasive authority before the Singapore courts, as are foreign (especially English) decisions involving questions of international law and the decisions of international courts or tribunals.
5.4.13 Resort to the writings of publicists in the field may be justified to the extent that they provide cogent evidence of the established international legal rule.
D. Judicial approach towards conflicts between international law and Singapore law
E. Proof of international law distinguished from proof of foreign law
(1) Proof of international law is not usually considered to involve proof of fact, unlike proof of foreign law
5.4.16 It may be appropriate to mention also that proof of international law is not usually considered to involve proof of fact, unlike proof of foreign law. The point has not been tested in the Singapore courts.
(2) Reasons why local courts do not usually require expert evidence for proof of international law
5.4.17 The view has been taken in Malaysia that proof of international law is a matter that requires expert evidence. Subject to the deference with which we are required to treat that Malaysian position as our own, it may be suggested that this cannot be the correct view in Singapore. Several reasons may be given for this.
5.4.19 Second, an appellate court may sometimes consider the view of international law taken in the courts below it to be incorrect. It does so more freely than if what is involved is a question of fact.
5.4.20 Third, in private international law, at least in the absence of proof to the contrary, the rule under the foreign law is to be presumed to be the same as that under domestic law, but this has never been recognised to be so where a rule of public international law is involved instead.
(3) Some special judicial and constitutional issues involving international law and foreign affairs cases
5.4.21 Having said that, there are special considerations which may apply, and which may make the case involving a point of international law in ways more complex than that which only involves a point of domestic law.
a. Difficulties in obtaining reliable evidence of international law
b. Issues of public policy
c. The Act of State Doctrine
5.5.1 Singapore has turned, increasingly, to the application of international law in international judicial and arbitral proceedings in order to address specific foreign policy issues. This has included a dispute brought under the World Trade Organisation’s dispute settlement system, although the dispute was subsequently withdrawn. Other examples include disputes with Malaysia such as the Land Reclamation dispute before the International Tribunal for the Law of the Sea, the dispute concerning sovereign title over Pedra Branca (or “Pulau Batu Puteh”) before the International Court of Justice and the dispute relating to the payment of development charges arising from the interpretation of the Points of Agreement on Malayan Railway land in Singapore under the auspices of the Permanent Court of Arbitration. Singapore has also turned to the good offices of neutral institutions for the amicable resolution of disputes, such as the good offices of the Secretariat of the Basel Convention regarding a dispute with Indonesia.
5.5.2 Taken together with Singapore’s regular invocation of international law in its official statements, a perceptible growth of treaty-implementing legislation, and Singapore’s active participation in the international law-making process, the interpretation and application of international law by the Singapore courts serves to demonstrate the significant extent to which international legal regulation has been received in Singapore and into Singapore law.
By Lim Chin Leng* & Mahdev Mohan**
* C.L. Lim was the Editor-in-Chief of the Singapore Year Book of International Law, and sometime Executive Director of the Society of International Law of Singapore. He is currently Professor of Law at the University of Hong Kong, Visiting Professor at King’s College London, and a practising barrister. He is an Advocate & Solicitor of the Supreme Court of Singapore.
** Mahdev Mohan is an Assistant Professor of Law at the Singapore Management University. He is an Advocate & Solicitor of the Supreme Court of Singapore, the current Executive Director of the Society of International Law of Singapore, and a member of the pro tempore committee for the establishment of the International Law Association’s Singapore branch. He is an Associate Tenant of Temple Garden Chambers in London.