Topic 2 International Law & History of Singapore

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SINGAPORE LEGAL SYSTEM 2009

PART I. SINGAPORE LAWAND INTERNATIONAL LAW

Topic 2. International Law & the History ofSingapore

.A Study Guide ...................................................................2

.B International Law and Colonial Singapore.........................4.1 International Law and Western Colonial Expansion ............................4.2 United Nations & Decolonization.........................................................5.3 Self-Government to Independence for Singapore...............................7.4 Succession to Treaties upon Independence........................................8.5 Stanislaus Krofan & Anor v Public Prosecutor....................................10

.C Singapore Constitutional Documents & International Law...................................................................................15.1 Introductory Note..............................................................................15.2 Independence of Singapore Agreement, 1965..................................15.3 Independence of Singapore Agreement, 1965, Annex B...................16.4 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

.E Extradition....................................................................24.1 Statement of Minister at Second Reading of Extradition Bill on 22 May

1968................................................................................................24.2 Explanatory Statement to the Extradition Bill 1968..........................25

.F State Immunity.............................................................28.1 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

All Rights ReservedRobert Beckman 2009

These materials are for the sole use of students in the NUSFaculty of Law.

They are not to copied or circulated without the expresswritten permission of the author.


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Topic 2. International Law and Singapore Legal History Page 2

.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 examinethe 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 in 1965? Why was the principle of self-

determination important in Asia, and was instrumental in

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 Part 1. Singapore Law andInternational Law


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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 by Malaysia, and whether a dispute on their

interpretation can be unilaterally referred to arbitration or

adjudication

5. The constitutional provisions concerning sovereignty and

citizenship and their significance.

6. The reasons why the Extradition Act which was enacted in 1968

and the basic scheme of the Act. Is extradition governed by

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?



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.B INTERNATIONAL LAW AND COLONIAL SINGAPORE

.1 INTERNATIONAL LAWAND 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. The Peace of

Westphalia followed the Thirty Years' War, a European religious conflict that

embroiled much of the European continent. The Peace of Westphalia

established the notion of number of independent political entities States

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. Armed force was often used to

extract unequal treaties imposing diplomatic relations and establish

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.



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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 19th 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 tojoin. 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 ofpeoples; and

to achieve international co-operation in solving international

problems of an economic, social, cultural or humanitariancharacter, and in promoting and encouraging respect for



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human rights and for fundamental freedoms for all withoutdistinction 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.

After the formation of the United Nations many peoples under colonial

rule struggled to achieve independence. As the number of developing

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, dominationand exploitation constitutes a denial of fundamental humanrights and is contrary to the Charter of the United Nations

2. all peoples have the right of self-determination; by virtue of thatright they freely determine their political status and freely

pursue their economic, social and cultural development3. inadequacy of political, economic, social or educational

preparedness should never serve a pretext for delayingindependence

4. all armed action or repressive measures of all kinds directedagainst dependent peoples shall cease in order to enable themto exercise peacefully and freely their right to completeindependence, and the integrity of their national territory shallbe respected

5. any attempt aimed at the partial or total disruption of thenational unity and the territorial integrity of a country isincompatible with the Purposes and Principles of the Charter ofthe United Nations

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,



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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 thePeoples Republic of China in Beijing was recognized as representing China

at the United Nations.

.3 SELF-GOVERNMENTTO INDEPENDENCEFOR 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 ofSingapore. Up to then there had been chance that Malayawould not be granted independence until Singapore was a partof it. Now Singapore was out on a limb. The British plan was tohave an independent Malaya with Malays in charge Malayswho would nevertheless need them for some time to helpgovern the country and fight the communists while they keptSingapore as a colony indefinitely because of its strategic valueto Britain, Australia and New Zealand. Singapore was likely to

become at best a self-governing territory with all the trappingsof independence but without real sovereignty, and the last wordon defence, security and foreign policy would stay in Britishhands.

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 seekforthwith for Singapore the status of an independent territory

within the Commonwealth, and to offer an agreement betweenthe United Kingdom government and the Singapore government



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whereby the United Kingdom would in respect of Singaporeexercise control of external defence and give guidance inforeign 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 self-governing state with all the rights, powers and privilegespertaining 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 SUCCESSIONTO TREATIESUPON 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



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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. According to the 1978

Convention, the principle that should apply in this case would also be

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.



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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 & ANORV 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 1965came 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 `armed conflict` within the meaning of that expression in the 1949 Geneva

Convention Relative to the Treatment of Prisoners of War (hereinafter referred toas 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 `if 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 thefacts they did not come within the ambit of its art 4.



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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 hadbeen 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 fourconventions 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



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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 alaw 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 priorto 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 adoptwould 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 nationsrespecting 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 ofthe 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 thataccordingly 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, isconsidered 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 theSaboteurs` 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 theManual 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 nationsrespecting warfare and indeed states the position under customary international



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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. Theconditions 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 withinthe 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.



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Appeals dismissed.

.C SINGAPORE CONSTITUTIONAL DOCUMENTS & INTERNATIONALLAW

.1 INTRODUCTORYNOTE

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 INDEPENDENCEOF SINGAPORE AGREEMENT, 1965

AN AGREEMENT RELATINGTOTHE SEPARATIONOF SINGAPOREFROM

MALAYSIAASAN INDEPENDENTAND 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 stateseparate 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 inAnnex 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.



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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 aforeign 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 INDEPENDENCEOF SINGAPORE AGREEMENT, 1965, ANNEXB

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 di-

Pertuan 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:



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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 anindependent 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 itsexecutive 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 RELEASEON 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) comprehensivelyrebutted Malaysian allegations on the water issue and other issues. He underscoredthat the issue goes well beyond the actual price of water supplied by Malaysia to

Singapore.

2. He also refuted other allegations such as those concerning Malaysias vacating ofthe 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).

Documents, Correspondence and Diplomatic Notes released to set out facts

3. Prof Jayakumar noted that all these allegations had the common objective ofpainting Singapore as "insensitive", "arrogant" and "unneighbourly" in the conduct

of its bilateral relations with Malaysia.

4. But the most strident allegations by Malaysia were on the water issue, includingclaims 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.

5. 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: Sanctity of Water Agreements and Separation Agreement

6. The fundamental issue was not the price of water, but how Singapore was made to pay forany revision. This cannot be done at the will or dictate of Malaysia. Said Prof Jayakumar: "The 1961 and 1962Water Agreements are enshrined in the Separation Agreement and registered at the United Nations. They arefundamental to our very existence as an independent nation. Neither Singapore nor Malaysia can unilaterallychange them. This is the root of the dispute between us."

7. Prof Jayakumar stated: "Let me be clear. It is not a matter of moneythesignificance of the water price, to both countries, is Singapores existence as a

sovereign nation separate from Malaysia, and the sanctity of the most solemnagreements which Singapore and Malaysia have entered into."

8. The issue goes well beyond whether Singapore has to pay 45 sen or 60 sen or stickto 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.

9. He stressed that the two Water Agreements are no ordinary agreements. They areso vital that they were confirmed and guaranteed by both Governments in the

1965 Separation Agreement, also known as the Independence of Singapore

Agreement.

10. "This was registered at the United Nations. Both countries have to honour theterms of the agreements and the guarantee in the Separation Agreement. Any



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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 MalaysianGovernment 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 WaterAgreements 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 agreementspertaining 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 withoutconsent. This will have grave implications for bilateral relations".

14. On 14 March 2002, the Malaysian Government replied that its "commitment toresolving 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 thiscommitment 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 statementat 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 becauseMalaysia 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.



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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, Malaysiasuddenly 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 arbitrationby 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 giveNotice 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 onthe 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 theconsequences."



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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 mustensure 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 PROVISIONSONTHE PROTECTIONOFSOVEREIGNTY

Article 6. No surrender of sovereignty or relinquishment of control over the Police Forceor 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 votescast 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 conjunctionor in concert with any other sovereign state or with any Federation,



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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 ParliamentaryElections Act (Cap. 218).

(2) In this Article, amendment includes addition and repeal.

.2 CONSTITUTIONAL PROVISIONSON CITIZENSHIP

Article 120. Status of citizen of Singapore

(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.



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.E EXTRADITION

.1 STATEMENTOF MINISTERAT SECOND READINGOFEXTRADITION BILLON 22 MAY1968

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 theindependence 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 tobe 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



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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 countriesthat 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 EXPLANATORYSTATEMENTTOTHE 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



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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 wasbased; 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 beprejudiced 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 thatState 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 ofhabeas 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 inthe interests of justice or in view of the time that has elapsed and having regard to



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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 withregard 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 unde