TREATIES, TIME LIMITS AND TREASURE TROVE:
THE LEGAL PROTECTION OF CULTURAL
OBJECTS IN SINGAPORE
Jack Tsen-Ta Lee*
This article considers the extent to which civil
and criminal law in Singapore deters the
unlawful removal of cultural objects from the
possession of private owners, art galleries and
museums, or from archaeological sites, and
provides redress to victims. Given Singapore’s
position as the crossroads of Asia, the law must
be able to cope with the flow of objects in and out
of the country. The law is currently deficient as
it is not tailored to deal with issues concerning
cultural heritage, and needs to be reformed in
several respects. There are sound reasons for a
modern State like Singapore to enact legislation,
as well as to enter into regional and international
treaties, to protect its national heritage and to
promote global co-operation in opposing the illicit
trade in unlawfully removed cultural objects.
Singapore is not known for having a civilisation with a long
and distinguished history, unlike China, India or Greece,
or even its South-East Asian neighbours Cambodia and
Indonesia. As such, it is not perceived to be a ‘source
nation’ vulnerable to the plunder of its cultural patrimony.
Although a bustling, modern city, neither is it yet a centre
of art and culture comparable to London or New York. One
is therefore tempted to ask whether Singapore and, indeed,
other States in similar positions which emerged as
independent nations in the twentieth century need specific
laws relating to cultural objects.
*
Advocate & Solicitor (Singapore), Solicitor (England & Wales).
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I believe it would be regrettable if such a short-sighted
view were taken. First, although Singapore’s archaeological
heritage may not be as spectacular as the sculptures and
burial sites unearthed in other parts of South-East Asia, it
is nonetheless valuable for a deeper understanding of the
history of the island and the region. Secondly, we should
move away from the notion that only ‘old’ cultural objects
are worth caring for. Cultural objects that are presently
‘new’, whether artworks or historically-significant artefacts,
will likely gain importance as time passes. In addition,
Singapore’s fine arts continue to grow and blossom, and
the nurturing process must necessarily encompass proper
protection for artists’ works. Part I of this article examines
the state of Singapore’ heritage and art to set the
background for the discussion that follows.
Part II focuses on the protection of cultural objects that are
within Singapore. It considers the extent to which Singapore
civil and criminal law deters the unlawful removal of cultural
objects from the possession of their owners or from
archaeological sites, and provides redress to victims. It also
examines some of the problems encountered when cultural
objects are acquired. Given Singapore’s position as the
crossroads of Asia, Part III of the article goes on to look at
how Singapore law copes with the flow of cultural objects
from other countries in and out of Singapore.
In my view the law is currently deficient as it is not tailored
to deal with some of the special difficulties posed by cultural
objects, and thus requires reform. It is my thesis that
there are sound reasons for a modern State such as
Singapore to enact legislation, as well as to enter into
regional and international treaties, to protect its national
heritage and to promote global co-operation in opposing the
illicit trade in unlawfully removed cultural objects.
I: SINGAPORE’S HERITAGE
AND
ART
A. A Young Nation, an Ancient Heritage
Singapore became an independent republic on 9th August 1965.
Its modern history is usually dated from January 1819, when
Sir Stamford Raffles, an agent of the British East India
Company, landed on the island after having searched the
Straits of Malacca for a place to found a trading station to
counter Dutch influence in the region. At the time, Singapore
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
was an obscure fishing village governed by the Temenggong,
one of the Sultan of Johore’s ministers. In August 1824, the
Temenggong and the Sultan of Johore ceded to the East India
Company and its heirs perpetual title to Singapore.1
However, as was highlighted by an exhibition called Singapore
– 700 Years 2 held some years ago at the Singapore History
Museum, Singapore may have been mentioned in several
documents dating between the second and thirteenth
centuries. The first indisputable evidence of habitation is in
the Javanese Nagarakretagama of 1365, which named a
settlement called Temasek (‘Sea Town’) on Singapore island.
Temasek was probably a trading dependency of the Srivijaya
Empire.3 It is believed that the Malay name of the island,
Singapura (‘Lion City’), came into use between 1365 and 1462.4
By 1365, the Majapahit Empire had claimed Singapura as
a vassal State. It was attacked by the Thais between 1398
and the early fifteenth century. After the Portuguese seized
Malacca in 1511, the Malay Laksamana (Admiral) fled to
Singapura. When the Sultan established a new capital at
Johore Lama at the southern tip of the Malay peninsula he
kept a shabandar (port officer) at Singapura. The Portuguese
destroyed Johore Lama in 1587, and the end of Singapura
probably dates from 1613 when the Portuguese reported
burning down a Malay outpost at the mouth of the river.
By the second half of the eighteenth century Singapore
had been forgotten by the West. 5
It is therefore likely that Singapore was inhabited and
formed part of a civilised, literate world from about the
tenth to twelfth centuries, but was subsequently abandoned
to small pockets of Orang Laut (‘Sea People’). In June 1819,
a few months after Raffles’ arrival, a sandstone slab about
ten feet high and nine to ten feet long inscribed with 50 or
52 lines of script was found at the mouth of the Singapore
river. By that time, the meaning of the inscription was
already a mystery to the island’s inhabitants. Most
1
2
3
4
5
C.M. Turnbull, A History of Singapore 1819-1988 (2nd edn) (Singapore;
Oxford: Oxford University Press, 1989), at 1-2, 4-5, 28.
See the Singapore History Museum website at <http://www.nhb.gov.sg/
SHM/Exhibitions/past_spore700yrs. htm> (accessed 13 April 2004).
Turnbull, supra, n. 1 at 1-3.
John N. Miksic, Archaeological Research on the ‘Forbidden Hill’ of Singapore:
Excavations at Fort Canning, 1984 (Singapore: National Museum, 1985) at
26 (hereinafter Forbidden Hill).
Turnbull, supra, n. 1 at 3-4.
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regrettably, the monument was blown to pieces in 1843 to
make space for the quarters of the commander of Fort
Fullerton. A Colonel James Low managed to salvage at
least three fragments and had them chiselled into slabs,
which he sent to Calcutta for analysis. A few words were
made out by the Dutch epigrapher, Hendrik Kern, but the
script has not been, and probably never will be, fully
deciphered. A large block from the monument lay
abandoned at Fort Canning until finally being broken up
and used as gravel for a road. 6 One of Colonel Low’s
fragments, called the Singapore Stone, is today displayed
in the Singapore History Museum.
During an excavation for a reservoir on Fort Canning Hill
on 7th July 1926, a group of gold artefacts that may have
constituted a hoard were found.7 Among the clasps, clips
and jewelled rings discovered were a ring incised with a
bird, possibly a goose, one of the regalia of the royal house
of Surakarta in Central Java and the Hindu symbol of the
vehicle of Brahma; and a spectacular pair of armlets, one
intact and one slightly damaged, bearing a design of a kala 8
head, a decoration consistent with a fourteenth-century
date. 9 Some of these artefacts are now in the Singapore
History Museum’s collection; the rest, including the ‘goose
ring’,10 having gone missing over the years.
Fieldwork in the South-East Asian region involving
archaeologists from Singapore began in 1933. Casual finds
of Neolithic stone tools on Pulau Ubin, a small island northeast of the main land mass, prompted an excavation in
1949 but nothing was found. 11 No other organised
investigations were made until 1984, when systematic
excavations were carried out at Fort Canning Hill in the
hope of discovering further archaeological evidence of
Singapore’s past. Further excavations were conducted in
6
7
8
9
10
11
Forbidden Hill, supra, n. 4 at 13, 40, 41.
R.O. Winstedt, ‘Gold Ornaments Dug Up at Fort Canning, Singapore’
(1928) 6(4) J.M.B.R.A.S. [Journal of the Malayan Branch of the Royal Asiatic
Society] 1, reprinted in (1969) 42(1) J.M.B.R.A.S. 49.
The kala are demonic beasts, sons of the Hindu goddess Durga in
destructive mood: Forbidden Hill, supra, n. 4, at 43.
John N. Miksic, Old Javanese Gold (Singapore: Ideation, 1990) at 50
(hereinafter Javanese Gold); see also Forbidden Hill, id, at 42-43.
Forbidden Hill, id, at 43 (caption of fig. 3).
Alexandra Avieropoulou Choo, Archaeology (Singapore: National Museum,
1987) at 6, 13. See id, 1-4, for an account of the history of archaeological
research in South-East Asia that Singapore was involved in.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
1987 and 1988. 12 Fort Canning Hill was probably an
important site for much of the fourteenth century as many
brick ruins, potsherds and coins were strewn about its
slopes when the British occupied it in 1819. 13
The Fort Canning projects, and more recent excavation efforts
at other sites in Singapore such as the new Parliament
House in 1994, Empress Place in 1998 and the grounds of
St Andrew’s Cathedral in 2003–2004, have revealed tens of
thousands of artefacts linking Singapore to ancient
empires. 14 These include sherds of late Yuan Dynasty
(1300–1367 CE) porcelain,15 other fragments of earthenware
and stoneware from fourteenth to early fifteenth century
contexts,16 glass beads and pieces, and other archaeological
evidence from the tenth to seventeenth centuries.17
B. Housing Singapore’s History
The first museum in Singapore, called the Raffles Library
and Museum, was officially opened by Frederick Weld, the
Governor of the Straits Settlements, on 12 th October 1887.18
12
13
14
15
16
17
18
The results of the 1984 excavation are reported in Forbidden Hill, supra, n. 4;
and Alexandra Avieropoulou Choo, Report on the Excavation at Fort Canning
Hill, Singapore (Singapore: National Museum, 1986). For another example of
an archaeological investigation carried out in Singapore, see also Jennifer
Barry, Pulau Saigon: A Post-Eighteenth Century Archaeological Assemblage
Recovered From a Former Island in the Singapore River (Stamford: Rheidol Press,
2000), detailing an archaeological excavation carried out between November
1998 and March 1989 which turned up items made of ceramics, glass, bone,
metal, wood, stone, plastic and rubber, as well as faunal and floral remains.
Javanese Gold, supra, n. 9.
See the Singapore History Museum website at <http://www.nhb.gov.sg/
Discover_Heritage/Archaeology/ fort_canning_disc.htm> (accessed 13 April
2004); Early Singapore 1300s–1819: Evidence in Maps, Text and Artefacts (John
N. Miksic & Cheryl-Ann Low Mei Gek eds.) (Singapore: Singapore History
Museum, 2004); John N. Miksic, ‘Recent Archaeological Excavations in
Singapore: A Comparison of Three Fourteenth-Century Sites’ (2000) 20 Bulletin
of the Indo-Pacific Prehistory Association 56 <http://www.seaarchaeology.com/
v1/pdfs/03sites.pdf> (accessed 13 April 2004); ‘Dig This – A Coin 700 Years
Old’, The Straits Times (20 November 2003), at 8; and Tan Shzr Ee, ‘Digging
Up the Past’, The Sunday Times (25 January 2004), at L5.
Javanese Gold, supra, n. 9.
Forbidden Hill, supra, n. 4, at 55, 67-69, 76.
Singapore History Museum website, supra, n. 14.
See Singapore History Museum website at <http://www.nhb.gov.sg/SHM/
NMhistory/index.html> (accessed 13 April 2004); and Office of Corporate
Communications, National University of Singapore, Surprising Images of
Ancient Singapore (last modified 1 August 2003) <http://www.nus.edu.sg/
corporate/research/gallery/ research17.htm> (accessed 14 April 2003). See
also Choo, supra, n. 11, at 5-14; Gretchen Liu, One Hundred Years of the
National Museum, Singapore, 1887-1987 (Singapore: Nat’l Museum, 1987);
and Eng-Lee Seok Chee et al, ‘Introduction’ in Treasures from the National
Museum, Singapore (Singapore: National Museum, 1987) at 8.
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The Library and Museum became separate departments in
the 1950s, and the Raffles Museum was renamed the
National Museum on 9th December 1960.
In August 1993, the National Heritage Board (NHB) was
established as a statutory board under the Ministry of
Information and the Arts. 19 From that time, the Board
assumed oversight of the National Museum and National
Archives. The National Museum of Singapore now comprises
three component museums: the Singapore History Museum,
the Singapore Art Museum and the Asian Civilisations
Museum (ACM). 20 The museums under the National
Heritage Board umbrella are part of the Museum
Roundtable, other members of which include smaller
specialised history museums in Singapore.21
The first branch of the ACM was inaugurated in 1997. On 2nd
March 2003, the museum opened a new flagship branch with
ten galleries in the historic Empress Place Building. The
ACM received a government grant of S$79 (£28.5) million for
renovations to the building, and S$16 (£6) million for new
acquisitions matched by a private donation of S$16 million.
The museum’s collections span Chinese, Indian, Malaysian,
Peranakan (Straits-born Chinese), Thai and Islamic art, and
30% of the work on view is from long-term loans secured
from collectors and museums at home and abroad.22
C. Art and Artifice
It is impossible in a paper of this length to do justice to the
history of the fine arts in Singapore, and the reader is
referred to authoritative works on the subject.23 There is
some scanty information about an art club being established
in Singapore around 1882 followed by the establishment of
the Amateur Drawing Association in 1909, but it was in
the late 1920s to mid-1930s when visual arts activities
blossomed.24 The birth of contemporary painting and art
19
20
21
22
23
24
National Heritage Board Act (Cap 196A, 1994 Rev Ed), s. 3 (hereinafter
‘NHB Act’). Since 2001, the Ministry has been known as the Ministry of
Information, Communications and the Arts.
Singapore History Museum website, supra, n. 18.
See the Museum Roundtable’s website <http://rmbr.nus.edu.sg/
roundtable/index.html> (accessed 13 April 2003).
Emma Beatty, ‘Singapore Fulfils its Cultural Promise’, The Art Newspaper
(April 2003), at 12. See also The Asian Civilisations Museum: A-Z Guide to
its Collection (Singapore: National Heritage Board, 2003), at 11-15.
See, eg, Kwok Kian Chow, Channels & Confluences: A History of Singapore
Art (Singapore: National Heritage Board, 1996).
Id., at 10.
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institutions in Singapore can be traced back to the founding
of the Society of Chinese Artists in 1935.25
Singapore’s first State-funded art museum was the National
Museum Art Gallery which opened in 1976.26 In the last
decade, the fine arts in Singapore were given a fillip by the
opening of the Singapore Art Museum (SAM) in January
1996, which houses Singapore’s national art collection
comprising twentieth-century Singapore and South-East
Asian modern and contemporary art. The SAM has the
largest collection of twentieth-century South-East Asian
art held by a public institution internationally. The museum
showcases works from its permanent collection as well as
those on loan from institutions in other countries. One
exhibition featured artworks from the Solomon R.
Guggenheim Museum in New York.27
The art market in Singapore emerged in the 1950s, with
prominent local artists Liu Kang, Chen Chong Swee, Chen
Wen Hsi and Cheong Soo Pieng setting a record of S$9,800
(about £3,300 at today’s rates) in sales in a 1951 joint
exhibition.28 The art and antiquities market has continued
to grow. In 1985, Sotheby’s opened an office in Singapore,
and launched Singapore’s first sale of South-East Asian
paintings in October 1996.29 Christie’s has held auctions
in Singapore since 1994, and in March 1996 assisted in
the sale of Raden Saleh’s The Deer Hunt (1846) for
S$3,083,750 (almost £1.1 million), a world auction record
for a work by a South-East Asian artist. 30 There are now
many local art dealers and galleries as well.
25
26
27
28
29
30
Id., at 16; Singapore Artists (Chia Wai Hon ed., Singapore: Singapore
Cultural Foundation and Federal Publications, 1982) at xi.
Singapore Artists, id., at xiv. See also National Museum Art Gallery Official
Opening, 21 Aug 76 (Singapore: The Museum, 1976).
See SAM’s website <http://www.nhb.gov.sg/SAM/profile/profile.shtml>
(accessed 13 April 2003). See also Singapore Art Museum at the Old SJI
(Singapore: National Heritage Board, 1996).
Kwok Kian Chow, supra, n. 23, at 69.
See Sotheby’s website <http://search.sothebys.com/jsps/live/office/
OfficeAuction.jsp?office_id=12> (accessed 13 April 2004); and Leong
Weng Kam, ‘Sotheby’s Sale Here Next Month’, The Straits Times (Life section)
(20 September 1996) at 9.
See Christie’s website <http://www.christies.com/departments/
overview.asp?DID=84> (accessed 13 April 2004). In addition, Bonham’s
held its first auction in Singapore in May 1996, and Associated Fine
Arts Auctioneers, a joint venture between a Singapore art gallery and a
Hong Kong auction house, held its sixth sale in Singapore on 22
September 1996: Leong Weng Kam, ibid.
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However, the development of the art and antiquities trade
has led to allegations that Singapore has become a transit
and distribution centre for cultural property looted from
other Asian countries such as Cambodia, 31 China, 32
Indonesia 33 and Myanmar. 34 In April 2002, The Art
Newspaper reporter Jonathan Napack wrote:35
Every looting field has its own shopping mall. China
has Hong Kong, Cambodia and Bangkok; Java has
Singapore, which imposes no controls on art sales,
other than a goods and services tax. In recent
years, magnificent sculptures smuggled from East
Java have surfaced at the Tanglin Mall, the center
of the semi-licit trade in Indonesian cultural
property. One anonymous dealer has frequently
advertised Majapahit pieces in specialist magazines
like Orientations and Arts of Asia leaving only a Yahoo!
e-mail address and a Singapore fax number — no
name, no address, no telephone.
31
32
33
34
35
Jenny Doole, ‘Post War Cambodia’, Culture Without Context, issue 4 (Spring
1999) at 6 (a new smuggling route for Cambodian antiquities has opened
through Singapore); Jenny Doole, ‘Cambodian Update & Thai Crackdown’,
Culture Without Context, issue 5 (Autumn 1999) at 7 (Thai customs agents
seized 29 wooden crates containing 43 Cambodian antiquities including
Buddhist and Hindu sculptures weighing several tons and estimated to
be worth millions of dollars, believed to have arrived in Bangkok by sea
freighter via Singapore from the Cambodian port of Sihanoukville);
Frederic Amat, ‘Artifact Repatriation: Whose Culture, Whose Treasure?’
(6 April 2001) <http://www.globalheritagefund.org/news/index.html>
(accessed 13 April 2004) (at the 11th session of the Intergovernmental
Committee for Promoting the Return of Cultural Property to its Countries
of Origin or its Restitution in Case of Illegal Appropriation held in Phnom
Penh from 6-9 March 2001, the Cambodian government claimed that
some countries in the region, such as Singapore and Thailand, were
considered world centres for smuggling Khmer art).
Neil Brodie, Editorial, Culture Without Context, issue 4 (Spring 1999);
Kenneth Polk, ‘The Antiquities Trade Viewed as a Criminal Market’,
Hong Kong Lawyer (September 2000) <http://www.hk-lawyer.com/20009/Sep00-cover.htm> (accessed 13 April 2004) (some plundered material
from China is already passing through Singapore).
Jonathan Napack, ‘Java’s Art is Slipping Away: Looters Hit Majapahit
Kingdom’, The Art Newspaper (April 2002) at 6, available as ‘Historic
Javanese Art Treasures Victims Of Looting’ from Forbes.com <http://
www. forbes.com/2002/04/03/0403hot.html> (accessed 13 April 2004);
see also nn. 83-85 and the accompanying text.
Brodie, supra, n. 32 (Kenneth Polk, Professorial Fellow in the
Criminology Department of the University of Melbourne, asked a shop
in Singapore about the supply of Buddhist objects from Burma and was
told “of course the material is smuggled, how else can we get it out?”).
Napack, supra, n. 33. See also Christine Alder, ‘The Illicit Trade in
Asian Antiquities’ (2002) 41 Journal of the Australian Registrars Committee
9 at 10 (illicit antiquities can be found in shops in the shopping arcade
within the Raffles Hotel and in Tanglin Shopping Centre).
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II: PROTECTION OF CULTURAL OBJECTS WITHIN SINGAPORE
The above description illustrates that there is now a fairly
wide appreciation of culture and heritage and a flourishing
art trade in Singapore supported by both the Government
and private enterprise. In this exciting atmosphere, there
is an interest in ensuring that the law sufficiently deters
would-be thieves from removing cultural objects from homes,
dealers’ shops, galleries and museums, and archaeological
sites and monuments. In addition, theft victims should be
assured of adequate procedures for redress. The discussion
in this Part considers whether Singapore law currently
achieves these aims and, on the other hand, considers some
of the difficulties that may be faced, particularly by public
museums, if stolen objects are acquired.
A. Cultural Objects Other Than Antiquities: Civil Law
1. The Loss of Cultural Objects by Theft
Let us assume that a Singapore museum, corporation or
individual has had one of the cultural objects in its
possession stolen. The object is bought by an innocent
purchaser in Singapore from the thief. The purchaser may
subsequently engage a dealer or auction house to arrange
for the object to be sold within the jurisdiction. The original
owner has causes of action in the tort of detinue 36 or
conversion against the thief, the innocent purchaser and
the dealer which the latter engages.
(1) The Claim Against the Thief. Under Singapore law,
the owner’s claim against the thief has to be brought within
six years from the date on which the cause of action arose:
that is, the date of the theft. 37 Once the six-year period
has expired without the owner recovering possession of
the object, the owner’s title to the object is extinguished.38
There is no equivalent in Singapore law to section 4 of the
Limitation Act (England and Wales), which entitles the
original owner to bring an action in conversion to recover
goods or their value at any time against a thief or any person
36
37
38
Detinue was abolished in the UK by the Torts (Interference With Goods)
Act 1977 (c. 32) (UK), but still exists in Singapore.
The general limitation period of six years applies: Limitation Act (Cap.
163, 1996 Rev. Edn.) (Singapore), s. 6(1)(a); cf Limitation Act 1980 (c. 58)
(England and Wales), s. 2 (time limit for actions founded on tort).
Limitation Act (Singapore), s. 7(2); cf Limitation Act (England and Wales),
s. 3(2).
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whose possession of the goods is related to the theft.39 In
other words, in the United Kingdom, no limitation period
applies against such persons.
Six years is arguably short enough to make it worthwhile
for a thief to keep a stolen cultural object hidden until the
original owner’s claim has become statute-barred before
disposing of the object to an innocent purchaser or
otherwise putting it to his own use. The thief is more
likely to contemplate such action if the object is apt to
increase in value.40 Further, cases show that six years is
seldom enough time for an owner to ascertain the facts
necessary for her to bring a claim, including the thief’s
identity and the location of the stolen object.
For instance, Autocephalous Greek-Orthodox Church of Cyprus
v. Goldberg and Feldman Fine Arts, Inc41 involved the theft of
a large mosaic dating back to about 525–530 AD affixed to
the apse of the Church of Panagía Kanakariá in the village
of Lythrankomi in northern Cyprus. Widespread looting of
churches in northern Cyprus occurred after the region was
occupied by Turkish forces in 1974. It is not known exactly
when the Kanakariá mosaic was removed, but in November
1979 the desecration came to the attention of the Republic
of Cyprus government which controlled the southern part
of the island. The Republic of Cyprus immediately sought
the assistance of many organisations and individuals in
recovering the mosaic, including UNESCO, the International
Council of Museums, the Council of Europe, international
auction houses such as Christie’s and Sotheby’s, and the
foremost museums, curators and Byzantine scholars
throughout the world.42 Nonetheless, it was only in 1988,
nine years later, that the Republic discovered the location
of the mosaic and the identity of its possessor.43
39
40
41
42
43
Every conversion following the theft of a chattel before the person from
whom it is stolen recovers possession of it is regarded as related to the
theft, unless the stolen chattel has been purchased in good faith or
converted thereafter: Limitation Act (England and Wales), s. 4(2). There
is also a presumption that any conversion following a theft is related to
the theft unless the contrary is shown: s. 4(4).
See, e.g., UK House of Commons Select Committee on Culture, Media
and Sport, Seventh Report: Cultural Property: Return and Illicit Trade (2000),
HC 371-I, para. 89.
917 F 2d 278 (7th Cir., 1990).
Id., at 281.
Id., at 283.
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It was recently reported by Sterling and Peggy Seagrave in
their book Gold Warriors44 that during the Second World
War expert teams with Japan’s military emptied treasuries,
banks, factories, private homes, art galleries and pawn
shops in twelve Asian countries, including Singapore,
Malaya, China, Korea and the Philippines. Together with
Penang and Kuala Lumpur in Malaya, Singapore was used
as one of the major centres for the collection and shipment
of loot. Mr Seagrave is quoted as saying:
We can’t even put a ballpark figure on what was
stolen from Singapore and Malaya, since this
would include gold looted from banks and
treasure of all kinds from individuals, temples,
clan associations and the underworld.45
Assuming that problems with proof of ownership and spoliation
can be overcome, the lapse of almost 60 years since the end
of the Japanese Occupation of Singapore in 1945 means that
claims for the recovery of property or compensation have long
become barred under current limitation laws.
Is there a case, then, for adopting a much longer limitation
period or, perhaps, no limitation period at all for claims
against thieves or persons who obtain possession of goods
from them in bad faith? One justification for a ‘yes’ answer
is that since cultural objects are often unique and hold
special significance for their owners, the law should be
more generous to owners by affording them greater
opportunity to recover the objects. It may also be argued
that there is really no good reason why thieves or their
accessories should ever gain title.
On the other hand, a long limitation period or the absence of
one may lead owners to fail to pursue their claims
expeditiously. This is unjust to defendants as it subjects them
to the indefinite possibility of being hauled to court. The long
delay may also prevent them from effectively defending claims
– witnesses may no longer be available to testify, or evidence
may have been lost or destroyed over the years.
Such arguments, though, do not lie well in the mouths of
thieves, and Stephanos Bibas remains unconvinced. He
44
45
Sterling & Peggy Seagrave, Gold Warriors: The Covert History of Yamashita’s
Gold: How Washington Secretly Recovered it to Set Up Giant Cold War Slush
Funds and Manipulate Foreign Governments ([US]: Bowstring Books, 2002).
Felix Soh, ‘Exposed: Story Behind Japan’s Plunder of SEA Treasures During
World War 2’, The Sunday Times (Singapore) (28 September 2003), at 29.
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takes the view that if an owner lacks adequate evidence to
establish her ownership of a cultural object, this acts as a
sufficient disincentive for commencing legal action.
Conversely, a short limitation period has the effect of unfairly
shutting out claims that are not really stale at all.46 Further,
an owner’s inability to locate his stolen cultural property is
analogous to a claim involving latent injuries or damage to
which an extended limitation period applies.47
The Singapore position appears to be ameliorated by section
29(1) of the Limitation Act which provides for the
postponement of the limitation period in cases where an
action is “based upon the fraud of the defendant or his agent
or of any person through whom he claims or his agent” or
“the right of action is concealed by the fraud of any such
person as aforesaid”.48 In such cases, the period of limitation
does not begin to run until the plaintiff has discovered the
fraud, or could with reasonable diligence have discovered
it.49 The provision does not apply against a purchaser of the
object for valuable consideration who was not a party to the
fraud and did not at the time of the purchase know or have
reason to believe that any fraud had been committed.50
For the limitation period to be postponed on the ground
that the action is based on the defendant’s fraud, the fraud
must be an essential ingredient of the cause of the action.51
An owner cannot rely on this provision if a cultural object
is merely stolen from him, although he may succeed if
swindled of the object.
As for fraudulent concealment of the right of action, ‘fraud’ in
this context not only denotes facts forming the basis for an
action for deceit but also conduct that makes it unconscionable
for the defendant to avail himself of the lapse of time.52 Thus,
46
47
48
49
50
51
52
Stephanos Bibas, ‘The Case Against Statutes of Limitations for Stolen
Art’ (1995) 5 I.J.C.P. [International Journal of Cultural Property] 73 at 8586. (The article was first published as (1994) 103 Yale L.J. 2437.)
Limitation Act (Singapore), s. 24A: Bibas, ibid.
Limitation Act (Singapore), ss. 29(1)(a) and 29(1)(b) respectively; cf
Limitation Act (England and Wales), ss. 32(1)(a) and 32(1)(b).
Limitation Act (Singapore), s. 29(1); cf Limitation Act (England and Wales),
s. 32(1).
Limitation Act (Singapore), s. 29(2)(a); cf Limitation Act (England and Wales),
ss. 32(3) and 32(4). See, infra, nn 66-67 and the accompanying text.
Beaman v. ARTS Ltd [1949] 1 K.B. 550 at 558, C.A.
Bank of America National Trust & Savings Association v. Herman Iskandar
[1998] 2 S.L.R. [Singapore Law Reports] 265, para. 73 at 286, C.A., citing
King v. Victor Parsons & Co [1973] 1 W.L.R. 29 at 33, C.A.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
for instance, it has been held that a person who knowingly
commits a tort by extracting another person’s coal in
circumstances that are unlikely to be discovered for a long
time cannot rely on a statute of limitations.53 The defendant
or the person through whom he claims need not take active
steps to conceal the wrongdoing; it is sufficient if he knowingly
or recklessly commits the wrong.54 It is unnecessary to show
that the defendant acted with any degree of moral turpitude.55
Such a liberal interpretation by the courts of the analogous
provision in the United Kingdom, section 26(b) of the
Limitation Act 1939,56 led Megarry V-C in Tito v. Waddell (No.
2)57 to comment that:
as the authorities stand, it can be said that in
the ordinary use of language not only does ‘fraud’
not mean ‘fraud’ but also ‘concealed’ does not
mean ‘concealed’, since any unconscionable
failure to reveal is enough.
A thief naturally strives to achieve his objective in
circumstances that make it as difficult as possible for the
owner to discover his identity or whereabouts. However,
section 29(1)(b) is helpful only where a thief’s actions are
such that the owner is oblivious to the theft. It has been
held that there is no fraudulent concealment where the owner
knows a theft has occurred but the identity of the thief is
unknown to her and might in that sense be said to have been
‘concealed’.58 As this is probably the case in most thefts, the
provision, which at first appeared to hold much promise, in
reality gives little assistance to the owner in our example.
(2) The Claim Against the Innocent Purchaser or Dealer.
We now turn to the owner’s claim against the innocent
purchaser or dealer in our example. As the position is the
same whether the purchaser or dealer is claimed against,
the remainder of this discussion will refer only to the
53
54
55
56
57
58
Bulli Coal Mining Co v. Osborne [1899] A.C. 351, P.C. (on appeal from
NSW): see Bank of America, ibid.
Bank of America, ibid. Negligence is insufficient: id, para. 74, at 287.
See also Leicester Wholesale Fruit Market v. Grundy [1990] 1 W.L.R. 107.
Beaman v. ARTS Ltd, supra, n. 51; Kitchen v. Royal Air Force Association
[1958] 1 W.L.R. 563, C.A.
Chapter 21.
[1977] Ch. 106 at 245, noted by the Law Commission of England and
Wales in their report Limitation of Actions (Law Com No 270) (2001), para.
8.14 at 146-147.
RB Policies at Lloyd’s v. Butler [1950] 1 K.B. 76.
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innocent purchaser. Under section 7(1) of Singapore’s
Limitation Act59 the owner must bring a claim within six
years from the theft. The limitation period does not restart
from the date when the stolen object enters the innocent
purchaser’s possession. Section 7 therefore favours persons
in the innocent purchaser’s position. In contrast, the UK
position is more advantageous to the owner as the six-year
limitation period only starts to run from the date of the
first good faith conversion,60 and it is for the person who
asserts good faith to establish it.61
The law in the United Kingdom in this respect is
conceptually more sound. The Singapore rule could be
said to promote certainty of transactions to some extent as
it ensures that disputes over the title to a stolen object
will be determined no later than six years from the date of
the theft. I doubt, though, whether this is a sufficient
reason to give credence to the period when the object is in
the hands of the thief or a bad-faith possessor.
It is arguable that, as between a good-faith purchaser and
an owner who has taken reasonable steps to report his loss,
the owner is in a morally stronger position because the
purchaser has directly or indirectly acquired the cultural
object from a thief and ought to have properly investigated
its provenance before the purchase. The availability of
catalogues raisonnés and computerised lost art databases
makes it possible for purchasers to exercise such due
diligence.62 Also, as a purchaser is likely to have acquired
a cultural object through a dealer, the purchaser can claim
from his dealer an indemnity for breach of terms implied by
law into the sale agreement, including a condition that the
dealer has a right to sell the goods63 and a warranty that
the goods are free from undisclosed encumbrances and that
59
60
61
62
63
The section, which is in pari materia with the Limitation Act (England and
Wales), s. 3(1), reads: “Where any cause of action in respect of the conversion
or wrongful detention of a chattel has accrued to any person and before
he recovers possession of the chattel, a further conversion or wrongful
detention takes place, no action shall be brought in respect of the further
conversion or detention after the expiration of 6 years from the accrual of
the cause of action in respect of the original conversion or detention.”
Limitation Act (England and Wales), s. 4(3) read with s. 3(1). See Ruth
Redmond-Cooper, ‘Time Limits in Actions to Recover Stolen Art’, in The
Recovery of Stolen Art (Norman Palmer ed., London: Kluwer Law
International, 1998), ch. 7, 145, para. 2.3 at 147-148.
Redmond-Cooper, ibid.
Compare Bibas, supra, n. 46, at 83-84.
Sale of Goods Act (Cap 393, 1999 Rev. Edn.) (Singapore), s. 12(1).
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
the purchaser shall have quiet possession of them. 64
Dealers can spread their losses through insurance. 65
We noted above that section 29(1)(b), which allows for the
limitation period to be extended in fraudulent concealment
cases, does not apply against a good-faith purchaser who was
neither party to nor aware of the fraud. The statute does not
expressly impose a duty on such a purchaser to exercise due
diligence in ascertaining that the person from whom he
acquires the object has a valid title to it. However, the finder
of a lost chattel has an obligation to take such measures as
in all the circumstances are reasonable to acquaint the true
owner of the finding and present whereabouts of the chattel
and to care for it meanwhile.66 Therefore, if such a duty
applies also to purchasers of stolen chattels, it has been
argued that if the good-faith purchaser discovers the chattels
to be stolen, his failure to inform the true owner of their
whereabouts may well constitute a fraudulent concealment.67
However, as discussed previously, this will not assist the
owner if he is aware that a theft has taken place.
(3) Proposals for Reform.
A useful starting point for
considering how Singapore law might be reformed is provided
by the recommendations of the Law Commission of England
and Wales, which comprehensively reviewed the UK law
relating to the limitation of actions in 2001. 68 The
Commission took the view that what it termed the ‘primary
limitation period’ should be three years69 which, in the case
of claims related to theft, should not start to run until the
claimant knows or ought to know the facts giving rise to the
cause of action as well as the whereabouts of the stolen
property.70 In addition, there should be a long-stop limitation
period of ten years from the date of the first bona fide
purchase, after which no claim may be brought even if the
primary limitation period has not expired due to the claimant
lacking knowledge of the relevant facts. 71
64
65
66
67
68
69
70
Ibid., s. 12(2).
Bibas, supra, n. 46.
Parker v. British Airways Board [1982] Q.B. 1004 at 1017, C.A.
Redmond-Cooper, supra, n. 60, at 161.
Law Commission of England and Wales, Limitation of Actions (Law Com
No 270) (2001). The Commission’s recommendations have yet to be
implemented in the UK.
Id., para. 3.98 at 66. A three-year period was recommended as the UK
experience suggested this was sufficient for a claimant to bring a claim
in the vast majority of cases: id., para. 3.96 at 66.
Id., para. 4.67 at 119.
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This differs from the present UK law, where no limitation
period applies to claims against thieves. The Commission
felt that the mere fact that a thief had committed an act
which was morally wrong did not excuse claimants from
their obligation to pursue litigation within a reasonable
time.72 As for the imposition of a long-stop limitation period,
this would protect defendants from claims brought so long
after the events to which they related that the defendants
were no longer properly able to defend themselves, as
witnesses might not be available and documentary evidence
might have been lost or destroyed. Further, the Commission
noted that defendants are entitled to some limit on their
need to insure themselves against liability, and a longstop limitation period compensates for the adoption of a
limitation regime dependent on the date of knowledge of
relevant facts by the claimant.73
There is merit in Singapore implementing a limitation period
that runs from the date when the claimant knows or ought
to know the facts giving rise to the cause of action and the
location of the stolen property. I submit that this strikes a
fairer balance between the owner and the thief than the
present Singapore position which excessively favours the
thief and the UK position which might be said to lean too
much towards the owner. For comparison it is worth noting
that under Article 3(3) of the Unidroit Convention on Stolen
or Illegally Exported Cultural Objects,74 about which more
will be said below, a claim for restitution of a stolen cultural
object must be brought within three years from the time
when the claimant knew the location of the cultural object
and the identity of its possessor.
The Law Commission’s proposal is less favourable to
innocent purchasers than either the position in Singapore
or the United Kingdom, as it is currently not possible for a
claim to be brought more than six years after the date of
the theft in Singapore, or the first good faith conversion in
the United Kingdom. Nonetheless, as detailed above, there
are reasons to favour the owner of a cultural object over
71
72
73
74
Id., paras 3.99-3.101 at 66-67; para. 4.63 at 117.
Id., para. 4.59 at 116.
Id., para. 3.100 at 67.
Opened for signature 24 June 1995 (in force 1 September 1998)
(hereinafter the ‘Unidroit Convention’). See Lyndel V. Prott, Commentary
on the Unidroit Convention (Leicester: Institute of Art and Law, 1997).
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
the innocent purchaser. 75 The innocent purchaser’s
interest is also safeguarded by the long-stop limitation
period which applies regardless of whether or not the
primary limitation period has expired.
Unlike the Law Commission’s proposal, the Unidroit
Convention provides for a long-stop limitation period of 50
years from the time of the theft.76 No long-stop is imposed
on a claim for the restitution of a cultural object forming
an integral part of an identified monument or archaeological
site, or belonging to a public collection, 77 although it is
open to Contracting States to declare that such claims are
subject to a time limitation of 75 years or such longer period
as is provided in their law.78 I prefer the long-stop limitation
period recommended by the Law Commission as it is more
sensitive to the difficulties faced by owners in acquiring
the information necessary for them to launch their claims.
However, I favour the Unidroit Convention’s approach as
regards cultural objects removed from monuments,
archaeological sites or public collections. Special treatment
is justified for such objects as they are important enough
to be regarded as part of a heritage shared by all peoples.
The linking of the limitation period to the claimant’s
knowledge of relevant facts means that what is termed
‘fraudulent concealment’ of the claimant’s right of action
in Singapore is no longer relevant to the primary limitation
period. 79 However, the Commission recommended that
where facts have been dishonestly concealed, the longstop limitation period should be suspended until the
claimant knows or ought to know the facts.80 Unlike section
29(1) of Singapore’s Limitation Act, section 32 of the UK
Act no longer refers to fraudulent concealment but to
‘deliberate concealment’. The Commission pointed out that
section 32 aims at preventing a defendant from profiting
from his own behaviour in concealing facts relevant to the
claimant’s claim. 81 It thus proposed that the section be
75
76
77
78
79
80
81
Supra, nn. 62-65, and the accompanying text.
Unidroit Convention, id., Art. 3(3).
Id., Art. 3(4).
Id., Art. 3(5).
Law Commission, supra, n. 68, para. 3.138 at 82. On fraudulent
concealment in Singapore law, see nn. 48-58, and the accompanying
text.
Id., para. 3.140 at 82-83.
Sheldon v. Outhwaite [1996] 1 A.C. 102 at 145, H.L.: id, para. 3.136 at 81.
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modified further such that it should apply only if the
defendant acts dishonestly in concealing facts.82
2.
The Acquisition of Cultural Objects
An intended buyer or donee of a cultural object would be
well advised to ensure that the vendor or donor has proper
title to pass. Otherwise, the buyer or donee may find
himself in the position of an innocent purchaser contending
with the equally blameless owner of the object. There is a
particular risk when an object is acquired by a museum or
put up for sale by an auction house, as exhibiting the object
or publishing a picture of it in a catalogue is usually the
step that alerts the owner to its whereabouts.
In September 1996, Christie’s withdrew two oil paintings
from a sale in Singapore of 160 Southeast Asian works
worth a total of about S$3.4 (£1.1) million, Raden Saleh’s
Portrait of a Dutch Governor Wearing the Willems Order (1867)
and an undated work entitled A Nude by Basoeki Abdullah,83
following a news agency report that they were owned by
the Indonesian government and had been stolen from the
National Museum in Jakarta. This report quoted the late
Basoeki’s secretary as saying that she discovered the theft
of A Nude only after she saw it printed in Christie’s sale
catalogue.84 It was later disclosed that the paintings were
put up for auction by Singaporean businessman and
collector who had acquired the works together with three
others without knowing they belonged to the Museum. After
a confidential deal was struck between the parties, the
businessman restored the paintings to the Museum.85
For ethical reasons, it is clearly in the interest of public
heritage institutions such as the NHB and its constituent
museums not to find themselves in possession of stolen
property. Apart from that, the NHB may find itself in a legal
quandary because its governing statute appears to prohibit it
82
83
84
85
Law Commission, id., para. 3.137 at 81.
It appears that the true name of the painting is Metamorphosis: Amir
Sidharta, ‘Whodunit? Who Stole the Paintings from Jakarta’s Museum
Nasional?’ <http://www.nusantara.com/seart/Basook.html> (accessed
13 April 2004).
Leong Weng Kam, ‘2 Indonesian Paintings Withdrawn from Auction’,
The Straits Times (Life section) (23 September 1996) at 3 <http://
www.nusantara.com/seart/STRaden.html> (accessed 13 April 2004).
Leong Weng Kam, ‘Stolen Paintings Returned to Jakarta’, The Straits
Times
(Life section) (28 September 1996) at 3
<http://
www.nusantara.com/seart/st961028.html> (accessed 13 April 2004).
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from disposing of such objects. Section 15(3) of the NHB Act,
apparently modelled on section 5 of the British Museum Act
1963,86 prohibits the Board from disposing of an object of:
significant national or historical value the
property in which is vested in the Board and
which is comprised in its collections unless with
the prior approval of the Minister and the disposal
is by way of sale, exchange or gift of an object
which (a) is a duplicate of another object the
property in which is so vested and which is so
comprised; or (b) in the Board’s opinion is
unsuitable for retention in its collections.
Section 15(4) permits the Board to dispose of objects only if
they have become useless for the purposes of its collections
by reason of damage, physical deterioration or infestation
by destructive organisms. One solution would be read the
phrase ‘unsuitable for retention’ broadly, but it is uncertain
whether the phrase can validly bear such an interpretation.
Another possibility is for the Board, which is a registered
charity, to request the Commissioner of Charities to exercise
the power conferred by sections 30(1) and (2) of the Charities
Act87 to authorise the return of an unlawfully-removed object
that the Board has inadvertently acquired on the basis that
it is “expedient in the interests of the charity”. However, I
submit that the most straightforward way of removing legal
difficulties and avoiding inconvenience would be to amend
the NHB Act to permit the Board to dispose of objects of
doubtful provenance or for other sufficient reasons.
In Singapore museums, loans of cultural objects from other
museums or private collectors are an important source of
exhibits for displays. Most if not all loans of this nature
are probably contracts as well as bailments for hire. 88 As
such, under section 7 of the Supply of Goods Act,89 there
is an implied condition on the part of the bailor that he has
a right to transfer possession of the goods by way of hire
for the period of the bailment, and an implied warranty
that the bailee (in this case, the museum) will enjoy quiet
86
87
88
89
Chapter 24.
Cap. 37, 1995 Rev Ed; cf Charities Act 1993 (c. 10) (UK), ss. 26(1) and (2).
Norman Palmer, ‘Art Loans as Legal Animals’ [1996] Art Antiquity & Law
251, 255 (hereinafter ‘Legal Animals’); Norman Palmer, Art Loans (London,
Kluwer Law International; International Bar Association, 1997) at 92
(hereinafter Art Loans).
Cap 394, 1999 Rev. Edn.
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possession of the goods for the period of the bailment. 90
Hence, if there are adverse third-party claims on the loaned
objects, the museum is entitled to sue the lender for breach
of contract and seek compensation.
However, a museum that takes such action risks damaging
its relationship with the lender, thereby endangering
possible future loans. It is far better for the museum to
review the provenance of loaned objects, at least selectively,
by checking them against a lost art register. This may
save future litigation and management costs as well as
the expenses and adverse publicity involved in cancelling
an exhibition, relocating other works, destroying catalogues
and reproductions, and refunding sponsorship money.91
B.
Cultural Objects Other Than Antiquities:
Criminal Law
While civil law principles determine who owns cultural
objects and enable owners to recover objects they are
unlawfully dispossessed of, the purpose of criminal law
sanctions is to deter persons from engaging in conduct
regarded as serious wrongs.
1. Stolen Objects within the Jurisdiction
The criminal offences in Singapore that can be used to
oppose the unlawful removal of cultural objects may be
divided into those that penalise the taking and those that
penalise the possession.
Of the taking offences, the least serious is the dishonest
misappropriation or conversion of movable property to one’s
own use under the Penal Code. 92 The next is theft,93
defined as moving with the intention of taking dishonestly
any movable property out of the possession of any person
without that person’s consent.94
Minor possession offences are found in the Miscellaneous
Offences (Public Order and Nuisance) Act.95 It is an offence
90
91
92
93
94
95
This is identical to the position under the Supply of Goods and Services
Act 1982 (c. 29) (UK), s. 7: see ‘Legal Animals’, supra, n. 88, at 260; Art
Loans, id., at 92.
Cf ‘Legal Animals’, id, at 259-260.
Cap 224, 1985 Rev. Edn., s. 403.
Penal Code, id., s. 379.
Id., s. 378. Committing theft under certain circumstances leads to enhanced
penalties (id, ss. 380, 381), and there are also offences to commit various
forms of house-trespass for the purpose of theft (id., ss. 451, 454, 457).
Cap. 184, 1997 Rev. Edn.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
if a person has in his possession or conveys in any manner
anything which may be reasonably suspected of being stolen
or fraudulently obtained and fails to account satisfactorily
how he came by it.96 A person from whom the property in
question was received, and former purchasers or possessors
of the property, can also be charged with offences.97 Increased
penalties await repeat offenders.98 Other minor offences can
be committed by secondhand dealers, pawnbrokers, and
dealers or workers in precious metals who, having been
notified of stolen or fraudulently obtained property by the
police, fail to report such property entering their possession;
or melt, alter, deface, or put away the property without the
permission of the Criminal Investigation Department.99
The more serious possession offence, which appears in the
Penal Code, is that of dishonestly receiving or retaining stolen
property, knowing or having reason to believe it to be stolen
property. 100 Stolen property means, among other things,
property the possession of which has been transferred by
theft, and property which has been criminally misappropriated,
whether the transfer has been made or the misappropriation
has been committed within or without Singapore, unless if it
subsequently comes into the possession of a person legally
entitled to its possession.101 There is a lesser offence of
voluntarily assisting in concealing, disposing of, or making
away with property which the accused knows or has reason
to believe to be stolen property.102
The harshest penalty is reserved for persons who habitually
receive or deal in property which they know or have reason
to believe to be stolen property – they may be given life
imprisonment or imprisonment of up to ten years, and may
also be fined. 103
2. Disposition of Property in Criminal Cases
Under Singapore rules of criminal procedure, at the end of
96
97
98
99
100
101
102
103
Id., s. 35(1).
Id., ss. 35(2) and (3).
Id., s. 35(5).
Id., ss. 36, 37.
Penal Code, supra, n. 92, s. 411.
Id., s. 410(1).
Id., s. 414.
Id., s. 413. In Goh Khiok Phiong v. R. [1954] Mal.L.J. [Malayan Law Journal]
223, H.C. (Kuching, Malaysia), the view was expressed that it is necessary
to prove at least three prior acts of receiving stolen property (i.e., four
acts of receiving in all) before it can be fairly said that the accused is a
habitual receiver. The accused need not have been convicted of the
prior acts of receiving, but it is necessary that the proof of the prior acts
is as convincing as if he had been convicted.
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a trial a court can order property that is produced before it
to be delivered to any person or otherwise disposed of.104
Further, the seizure by the police of suspected stolen
property must be reported forthwith to a Magistrate’s Court,
which is then required to make orders concerning its
custody and production, including the delivery of the
property to someone entitled to its possession. 105 If the
property’s lawful possessor is unknown, the property may
be detained in police custody while a public notification is
issued requiring claimants to establish their claim within
six months. 106 Ownership of the property vests in the
Government if no claim is established.107
Thus, if an unlawfully-removed object is recovered within
the jurisdiction, it can be restored to its owner in the course
of criminal proceedings without the owner commencing a
separate civil suit.
C. Antiquities
1. Civil Law: Ownership and Possession of Antiquities
I use the term antiquities to refer to artefacts found in sites
of archaeological or historical interest. Although this article
focuses on movable cultural property, antiquities should not
be viewed as distinct from the sites from which they originate
– the law should not only provide remedies for the illicit
trade in antiquities, but also prevent their unlawful
excavation so that historical sites can be systematically
investigated and excavated by archaeologists.
Criminal law sanctions that deal with these concerns are
explored later in this article.108 On the civil law front, persons
who enter unauthorised on to immovable property to search
and dig for antiquities can be sued for trespass to land or
nuisance, while the torts of detinue and conversion may be
used against those who unlawfully possess or deal with such
objects. In the latter case the proper claimants of antiquities
are those with rights to possess them, and this is the issue
to which we shall give attention.
To determine the rules concerning the rights of ownership
104
105
106
107
108
Criminal Procedure Code (Cap. 68, 1985 Rev. Edn.), ss. 386(1) and (2).
Id., ss. 392(1) and (2).
Id., s. 392(4).
Id., s. 393.
Part II.C.2, infra.
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and possession to antiquities applicable today, it is necessary
to delve into Singapore’s legal history. There is little doubt
that so long as Singapore remained subject to the British
Crown, common law principles relating to finders of objects109
and treasure trove110 applied with all their vagaries. During
this time, no treasure trove inquests seem to have been
held – no references to one conducted for the hoard of gold
jewellery found on Fort Canning Hill in 1926111 have been
located,112 possibly because it was found on State land and
so belonged to the Crown pursuant to both the law of finders
and treasure trove. In fact, the statute book contains no
procedure for the holding of such inquests by coroners.
Singapore ceased to be part of the British Empire in 1963
when it merged with and became a state in the Federation
of Malaysia. It achieved full independence two years later.
Section 46(8) of the NHB Act 113 suggests that the law of
treasure trove continues to apply in Singapore today: it
reads, “Nothing in this section shall affect any right of the
Government in relation to treasure trove.” However, this
section appears to have been inserted out of caution rather
than after considered thought.
Treasure trove was one of the prerogatives of the Crown.114
Crown prerogatives are derived from and limited by the
common law. 115 Commentators differ over whether the
Crown prerogatives survived Malaysia itself becoming
109
110
111
112
113
114
115
See, generally, Norman E. Palmer, Bailment (2nd edn.) (London: Sweet
& Maxwell, 1991), ch. 23 at 1418-1479.
Norman Palmer, ‘Treasure Trove and Title to Discovered Antiquities’, in
Interests in Goods (Norman Palmer & Ewan McKendrick eds., London:
Lloyd’s of London Press, 1993), ch. 12 at 305-344; Roger Bland, ‘Treasure
Trove and the Need for Reform’ [1996] Art Antiquity & Law 11.
See nn. 7-9 and the accompanying text.
I reviewed microfilms of the contemporary newspapers The Straits Times,
the Straits Budget and Singapore Free Press published between 8 and 31
July 1926 (for The Straits Times, for the month of August 1926 as well;
the Fort Canning hoard was found on 7 July) and between 1 November
and 10 December 1928 (the article by Winstedt appeared in the Journal
of the Malayan Branch of the Royal Asiatic Society which was published in
November: supra, n. 7), but located no news reports relating to the find.
Supra, n. 19.
Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown and
the Relative Duties and Rights of the Subject (London: Printed for J.
Butterworth, 1820), cited in Harding, infra, n. 121, at 355 n. 61; Lord
Advocate v. University of Aberdeen [1953] SC 533, Ct of Sess, (Scot); Webb
v. Ireland, infra, n. 131. In the UK, the law of treasure trove has been
abolished and replaced by a new scheme under the Treasure Act 1996 (c
24); see Roger Bland, ‘The Treasure Act and Portable Antiquities Scheme:
A Progress Report’ [1999] Art Antiquity & Law 191.
Halsbury’s Laws of Singapaore (4th edn., 1996 reissue) vol. 8(2) at para. 368.
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independent of the United Kingdom. Hickling is of the
opinion that, on the introduction of the Malaysian
Constitution on 31st August 1957, the prerogatives at
common law were transferred from the Crown to the new
Supreme Head of the Federation, the Yang di-Pertuan
Agong, at the federal level and to the Rulers of the States
of Malaysia at the state level.116
In support of this proposition Hickling notes,117 among other
things, section 3 of the Malaysian Civil Law Act 1956118
which provides that, subject to reservations relating to
written law, local circumstances and necessary
qualifications, the courts are to apply the common law of
England and rules of equity. In addition, on independence,
Article 162(2) of the Malaysian Constitution119 ensured the
continuation in force of all existing laws of the Federation
of Malaya. In Hickling’s view, although the Constitution
did not expressly modify the law generally by substituting
‘Yang di-Pertuan Agong’ for ‘Crown’, a study of the express
modifications that were made in 1957 illustrated “a clear
tendency to adopt such a principle”.120
Harding, on the other hand, argues that the prerogatives
lapsed and the Yang di-Pertuan Agong did not succeed to
them. He believes Hickling’s devolution theory ignores the
fact that sovereignty in respect of all states of the Federation
vested in the Agong, whose position is novel, unique and
defined by a written Constitution which creates a limited
constitutional monarchy based on the concepts of
parliamentary democracy and the separation of powers. He
finds it untenable that the prerogatives continue to exist
alongside the Constitution as a potential source of executive,
legislative and, possibly, even judicial power, since the
Constitution already lays down the manner in which such
116
117
118
119
120
R.H. Hickling, ‘The Prerogative in Malaysia’ (1975) 17 Mal. L.R. [Malaya
Law Review] 207.
Ibid., at 212-13.
Act 67 (1999 Reprint).
1992 Reprint.
Hickling, supra, n. 116, at 212. He notes, for example, that the offence
of waging war against the King in section 121 of the Penal Code (Act
574, 2002 Reprint) became the offence of waging war against the Yang
di-Pertuan Agong, and concludes that “[i]t may be accepted, I suggest, as
a general proposition that the appropriate authority corresponding to
the Crown/King/Queen was and is the Yang di-Pertuan Agong, just as
he in general became the recipient of the powers exercised by the High
Commissioner on behalf of the Crown.”: ibid., at 213.
260
LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
power is conferred. If Hickling’s argument is correct, the
Constitution can effectively be ignored since those in power
can rely on “vast prerogative powers of uncertain extent, for
the exercise of which they need answer to no one”.121
Harding rejects Hickling’s reliance on section 3 of the Civil
Law Act 1956 and Article 162(2) of the Constitution. 122 He
views the existence of the Malaysian Constitution as a
necessary reservation to the continued application of the
common law provided for by the Civil Law Act, and notes
that Article 162(6) of the Constitution requires preindependence laws to be applied with “such modifications
as may be necessary to bring it into accord with the
provisions of the Constitution”. 123
When Singapore joined the Federation of Malaysia, section
3 of the Malaysia Act 1963 (UK) 124 provided for the
continuation of all existing laws, which were to have “the
same operation in relation to the Federation, to any of the
States of the Federation, and to persons and things
belonging to or connected with the Federation or any of
the States thereof” as they would have had if Singapore
and other new States had not become included in the
Federation. Article 105(1) of Singapore’s new State
Constitution was to similar effect,125 subject to an important
proviso: “but all such laws shall… be construed as from
the coming into operation of this Constitution with such
modifications, adaptations, qualifications and exceptions
as may be necessary to bring them into conformity with
this Constitution and the Malaysia Act.”
On Singapore becoming an independent republic in 1965,
section 3 of the Republic of Singapore Independence Act126
provided that the Yang di-Pertuan Agong of Malaysia ceased
to be the Supreme Head of Singapore, and that his
121
122
123
124
125
126
A.J. Harding, ‘Monarchy and the Prerogative in Malaysia’ (1986) 28 Mal.
L.R. 345 at 352.
Id., at 353.
Art. 162(6).
11 & 12 Eliz. 2, c. 35.
Sabah, Sarawak and Singapore (State Constitutions) Order-in-Council
1963 (SI 1963 No 1493) (UK). The first part of Art 105(1) reads, “Subject
to the provisions of this Article and to any provision made on or after
Malaysia Day by or under Federal law or State law, all existing laws
shall continue in force on and after the coming into operation of this
Constitution…”
No. 9 of 1965, 1985 Rev. Edn.
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SEPTEMBER 2004
sovereignty and jurisdiction and power and authority,
executive or otherwise, in respect of Singapore were
relinquished and vested in its Head of State, the President.
Further, a provision substantially similar to Article 105(1)
of the State Constitution was enacted as section 13(1) of
the Act. 127 The present incarnation of this provision is
Article 162 of the Singapore Constitution:128
Subject to this Article, all existing laws shall
continue in force on and after the commencement
of this Constitution… but all such laws shall,
subject to this Article, be construed as from the
commencement of this Constitution with such
modifications, adaptations, qualifications and
exceptions as may be necessary to bring them
into conformity with this Constitution.
Law is defined in Article 2(1) as including, among other
things, “the common law in so far as it is in operation in
Singapore”. Also relevant is section 3 of the Application of
English Law Act129 which provides that the common law of
England continues to be in force in Singapore so far as it is
applicable to the circumstances of Singapore and its
inhabitants and subject to such modifications as those
circumstances may require.
Based on the legislative provisions reviewed above, it may
be contended that the law of treasure trove applies in
Singapore today because, as a prerogative possessed by
the Yang di-Pertuan Agong of Malaysia, it vested in the
President of Singapore, and because it is a common law
principle that continues to be part of Singapore law. I am
not convinced, though. I am inclined to agree with Harding
that there is scant support in the Constitution for Hickling’s
hypothesis that the Agong has title to treasure trove as
the successor to the Crown.
Further, if the devolution theory is shaky in Malaysia which
127
128
129
The provision reads, “[A]ll existing laws shall continue in force on and
after Singapore Day [9 August 1965], but all such laws shall be construed
as from Singapore Day with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring them into
conformity with this Act and with the independent status of Singapore
upon separation from Malaysia.”
1992 Rev. Edn.
Cap 7A, 1994 Rev. Edn.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
has a monarchy that continues to exercise certain
constitutional prerogatives, it is even less stable in
Singapore which has only a republican head of State elected
by the people. The language of prerogative rights is
inappropriate in such a system of law. It is submitted
that, for conformity with the Constitution and the
circumstances of Singapore and its inhabitants, the Crown
prerogative of treasure trove cannot remain part of the
common law applicable in the island State.
There is little reason for regret. Treasure trove law is
anachronistic and ill-suited as a means of protecting a
nation’s heritage. The numerous difficulties created by
treasure trove law have been discussed elsewhere,130 but
for our purposes it is sufficient to note that the elements
of the law are not easily satisfied; many antiquities cannot
qualify as treasure trove; and the law can result in a
collection of antiquities being divided up, thus diminishing
its historical value.
We should not exclude the possibility that a law analogous
to the prerogative of treasure trove might exist in Singapore
today. This prospect is suggested by Webb v. Ireland.131 In
that case, the Supreme Court of Ireland held that although
no royal prerogative existing prior to the enactment of the
1922 Constitution was by virtue of the Constitution vested
in the Irish Republic, Article 5 of the Constitution declared
that “Ireland is a sovereign, independent, democratic state”
and a necessary ingredient of sovereignty in a modern State
was the ownership by the State of objects which constituted
antiquities of importance which were discovered and which
had no known owner.132 A majority of the Court held that
the characteristics of the State’s right of treasure trove
were those of the common law prerogative, 133 while Walsh
J. felt that there was no reason why the right should be so
confined – the definition of treasure trove under the former
law would be of little benefit in Ireland since so many of its
antiquities were not made of either gold or silver. 134
130
131
132
133
134
See the works referred to in n. 110, supra.
[1988] I.R. 353.
Id., at 383 per Finlay C.J. (Henchy and Griffin JJ. concurring), 390-91
per Walsh J., and 397-98 per McCarthy J.
Id., at 383 per Finlay C.J. (Henchy and Griffin JJ. concurring).
Id., at 391.
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Webb v. Ireland raises the interesting possibility that Singapore,
too, may be entitled to exercise a right analogous to the
prerogative of treasure trove that arises from the country’s
status as a sovereign nation.135 There is local precedent for
such an approach: in Public Prosecutor v. Taw Cheng Kong136
the Court of Appeal determined that the Singapore Parliament
has plenary legislative powers as an attribute of its
sovereignty. However, as the Supreme Court has yet to rule
on whether antiquities belong to the State if their owners
are untraced, the point must be regarded as uncertain.
If Singapore can exercise no right of treasure trove, then it
appears the right to own or possess antiquities depends
wholly on the common law principles that apply to the
finders of objects.137 The applicability of the common law
is demonstrated by section 46 of the NHB Act,138 which
empowers the Board to enter upon lands to conduct
archaeological investigations.
If any objects of
archaeological or historical significance are found during
excavations, they do not automatically become the property
of the Board or the State. Sub-section (6) merely authorises
the Board’s representatives to take ‘temporary custody’ of
such objects and to remove them from their sites for the
purpose of examining, testing, treating, recording or
preserving them. Sub-section (7) stipulates that neither
the Board nor its representatives may retain such objects
“without the consent of the owner beyond such period as
may be reasonably required” for archaeological investigation
or analysis, or restoration or preservation. Thus the Act
contemplates that the ownership of the objects is
determined by other legal rules. As there are no relevant
statutes, common law principles must apply.
The implication is that, broadly speaking, the title to an
archaeological object found on private land can either be
135
136
137
138
Evidence is hardly needed for this latter fact, but for the sake of
completeness it may be noted that in the Proclamation of Singapore
dated 9 August 1965 (1985 Rev. Edn.) Lee Kuan Yew, then Prime Minister
of Singapore, proclaimed and declared on behalf of the people and the
Government of Singapore that as from that date “Singapore shall be forever
a sovereign democratic and independent nation”, and Article 3 of the
Constitution states that “Singapore shall be a sovereign republic to be
known as the Republic of Singapore.” See also Public Prosecutor v. Taw
Cheng Kong, infra, n. 136, at para. 30: “When Singapore became
independent on 9 August 1965, it acquired the attributes of sovereignty.”
[1998] 2 S.L.R. 410.
For these principles, see the authorities cited, supra, in n. 109.
Supra, n. 19.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
asserted by the landowner if the object is embedded in the
realty, or by the finder if the object is on the surface and
the landowner has not manifested an intention to control
the land and objects that may be found on it.139 Regardless
of the value that the object may have for Singapore’s
heritage, the possessor is fully entitled to deal with it as
he pleases. He may even export it from the country as
Singapore currently does not have any licensing system
controlling the outflow of cultural objects.
The possibility of artefacts slipping beyond Singapore’s shores
was recently brought to the fore when Singapore’s Minister
Mentor and former Prime Minister, Lee Kuan Yew, put up
for a charity auction on 5 th July 2003 a black antique
Waterman fountain pen that he had used to sign the
Constitutional Agreement with the British in 1957. This
agreement led to Singapore being transformed from a Crown
colony to a self-governing State within the Empire, and to a
new constitution coming into force in 1959.140 The managing
director of Sotheby’s Singapore, the company which
conducted the auction, remarked, “There will definitely be
successful overseas buyers, but we hope that some items
will be bought by Singaporeans.”141 Fortunately, the pen
was purchased by an anonymous Chinese businessman for
S$350,000 (£117,000) and loaned to the NHB. The lender
has not specified when the pen should be returned to him.142
2. Criminal Law
The criminal offences referred to earlier 143 such as
misappropriation, theft and receiving stolen property apply to
antiquities as they do to other types of cultural property, but
they only operate after antiquities have been unearthed.144
However, penal sanctions created by the Preservation of
Monuments Act145 may be applicable to the act of unlawful
139
140
141
142
143
144
145
Parker v. British Airways Board [1982] Q.B. 1004; Waverley Borough Council
v. Fletcher [1996] Q.B. 334.
The Lee Kuan Yew Family Collection: Singapore, Saturday, July 5, 2003
(Singapore: Sotheby’s, 2003) at 13.
Ginnie Teo, ‘Going Once... Going Twice...”, The Straits Times (29 June
2003), at L6-L7.
Ho Ka Wei, ‘Five Items from SM Auction at Heritage Centre’, The Straits
Times (13 September 2003) at H13.
Part II.B, supra.
See Explanation 1 to s. 378 (definition of theft) of the Penal Code, supra,
n. 92: “A thing so long as it is attached to the earth, not being movable
property, is not the subject of theft; but it becomes capable of being the
subject of theft as soon as it is severed from the earth.”
Cap. 239, 1985 Rev. Edn.
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removal itself. Under section 2(1) of the Act, a monument
includes “any building, structure, erection or other work
whether above or below the surface of the land, any memorial,
place of interment or excavation and any part or remains of a
monument” which is considered by the Preservation of
Monuments Board to be “worthy of preservation by reason of
its historic, traditional, archaeological, architectural or artistic
interest” as well as any “any land comprising or adjacent to a
monument which in the opinion of the Board is reasonably
required for the purpose of maintaining the monument or
the amenities thereof or for providing or facilitating access
thereto or for the exercise of proper control or management
with respect thereto”.146
To date, the national monuments that have been gazetted
under the Act have included only buildings that have
contributed to Singapore’s architecture and history. 147
Nonetheless, the definition of monument expressly includes
archaeological sites within the phrase ‘place of… excavation’.
The Minister of Information, Communications and the Arts
may, on the advice of the Board, make a preservation order
placing any monument under the Board’s protection pursuant
to section 8 of the Act. Where a preservation order is in
force, it is a criminal offence to demolish, remove, alter or
renovate or have any addition made to the monument to
which the order relates without the Board’s written consent,
except in case of urgent and immediate necessity for the
safety of persons or property. 148 The offence is aimed at
preventing unauthorised changes to national monuments
that harm their unique nature, but hacking off and carrying
away parts of a protected monument might arguably
constitute demolishing, removing or altering it.
The first conviction under this provision occurred in 2003.
The Tan Si Chong Su, a Chinese ancestral temple and the
146
147
148
The definition in the Act appears to require that land comprising or adjacent
to a monument which is reasonably required for maintaining the monument
and other related purposes must also be “worthy of preservation by reason
of its historic, traditional, archaeological, architectural or artistic interest”.
This is unlikely to have been Parliament’s intention, and is probably an
error. I have therefore rearranged the definition in the manner that I
believe it was intended to be read.
See, eg, Gretchen Liu, In Granite and Chunam: The National Monuments of
Singapore (Singapore: Landmark Books and the Preservation of
Monuments Board, 1996); and Lee Geok Boi, The Religious Monuments of
Singapore: Faiths of Our Forefathers (Singapore: Landmark Books and the
Preservation of Monuments Board, 2001).
Preservation of Monuments Act, supra, n. 145, ss. 9(1) and 9(3).
266
LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
assembly hall of the Tan clan, was built in 1876 and declared
a national monument in 1974. The secretary to the temple’s
management committee pleaded guilty to commissioning
renovations to the temple without the Board’s approval and
was fined S$500 (£170).149 Some conservationists have noted
that the maximum fine of S$1,000 is an insufficient deterrent
and should be increased.150
Section 18 of the Act makes it an offence for any person to
wilfully deface, damage or otherwise interfere with any
monument. It does not appear necessary for the Board to
order that a monument be placed under its protection
before this offence applies, although the Board must certify
that it is worthy of preservation under the criteria listed
in section 2(1). The removal of portions of a monument
clearly defaces or damages it, and I submit that unearthing
antiquities in the grounds of a monument amounts to
interfering with it. This is a more serious offence than
section 9(3) as it carries a maximum fine of S$5,000 or
imprisonment for up to six months or both.
The fact remains, however, that the Act was not really
drafted to prevent persons from searching for and removing
antiquities. It is not known whether the courts would
interpret the criminal offences created by the Act in the
ways suggested above.
3. Proposals for Reform
The foregoing discussion shows that, at best, antiquities might
be claimed by the State under the principles established in
Webb v. Ireland which are currently of uncertain ambit.
Alternatively, it may be that traditional principles of treasure
trove apply. We have seen that, in this case, the range of
objects can be claimed is severely limited and treasure trove
law has numerous shortcomings. At worst, the State must
rely solely on the law of finders and thus only has a chance
of asserting rights over antiquities that are discovered in or
on State land. As for criminal law, there are no offences
designed to control the excavation of antiquities. Hence, the
conclusion must be that antiquities are not adequately
protected for the nation’s benefit.
149
150
Crystal Chan, ‘Temple Official Accused of Illegal Changes to Monument’,
The Straits Times (13 November 2003) at 4; Chong Chee Kin, ‘Temple
Official Fined for Monument Changes’, The Straits Times (28 November
2003) at 6.
Chong Chee Kin, ibid.
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What is needed is legislation that fulfils the following
functions:
i.
It should define clearly what items are antiquities,
and the circumstances under which antiquities are
owned by the State.
ii.
It should deter uncontrolled searches for and removal
of antiquities from archaeological sites.
iii. It should require chance finds of antiquities to be
reported and transferred into the possession of the
State.
iv. It should establish a system for rewarding finders of
antiquities and private landowners to encourage the
reporting of finds.
v.
It should prevent antiquities that are valuable to the
nation’s heritage from being exported until the State
has had an opportunity to acquire them if it desires.
One need not look far afield for guidance: Malaysia’s
Antiquities Act 1976 151 is a good example of how the law
may be reformed. It provides that the Government has
absolute property in every antiquity discovered in West
Malaysia on or after the date of the coming into force of
the Act, every ancient monument which on that date is
not owned by any person or the control of which is not
vested in any person as trustee or manager, and all
undiscovered antiquities (other than ancient monuments)
whether lying on or hidden beneath the surface of the
ground or in any river or lake or in the sea.152
An antiquity is defined as “(a) any object movable or
immovable or any part of the soil or of the bed of a river or
lake or of the sea, which has been constructed, shaped,
inscribed, erected, excavated or otherwise produced or
modified by human agency and which is or is reasonably
believed to be at least one hundred years old; (b) any part
of any such object which has at any later date been added
thereto or re-constructed or restored; (c) any human, plant
or animal remains which is or is reasonably believed to be
at least one hundred years old; and (d) any object of any
age which the Director General [of Museums] by notification
in the Gazette declares to be an antiquity”.153
151
152
153
Act 168, 2001 reprint. See also the Antiquities and Treasure Trove Act
(Cap. 31, 2002 Rev. Edn.) (Brunei) which appears to have been based on
Malaysian legislation.
Antiquities Act (M’sia), id., ss. 3(1) to 3(3).
Id., s. 2(1).
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
The requirement that an object be at least a century old to
qualify as an antiquity is similar to the age requirements
for treasure in the Treasure Act 1996 (UK). 154 Such
requirements reduce administrative burdens by capping
the number of qualifying items and may represent an
attempt to strike a fair balance between State interests
and private rights to property, but I wonder whether it is
not better for legislation to be more inclusive to avoid
important objects falling outside the State’s protection.
Article 2(1) of the Historic Monuments and Archaeological
Objects (Northern Ireland) Order 1995 (UK),155 for instance,
defines an archaeological object has including “any object,
being a chattel (whether in a manufactured or
unmanufactured state), which is, or appears to be, of
archaeological or historical interest and which has, by
reason of such interest, a value substantially greater than
its intrinsic value or the value of the materials of which it
is composed.” The Malaysian authorities may, however,
specifically declare an object of any age to be an antiquity.
A broad definition of an antiquity avoids the incongruities of
the old prerogative of treasure trove. It is therefore a pity
that Malaysia chose to retain the concept of treasure trove,
albeit rationalized by Part VI of the Antiquities and Treasure
Trove Ordinance 1957156 which has now been revised and
reprinted as the Treasure Trove Act 1957.157 Under this
Act, treasure trove is any money, coin, gold, silver, plate, bullion
jewellery, precious stones or any object or article of value
found hidden in, or in anything affixed to, the soil or the
bed of a river or of a sea, the owner of which is unknown or
cannot be found. It does not include any antiquity. 158
Articles of treasure trove differ from antiquities as they must
be “of value”159 and may be less than a hundred years old.
154
155
156
157
158
159
Supra, n. 114, s. 1(1).
S.I. 1995 No. 1625 (NI 9), reprinted in [1996] I Art Antiquity & Law 431.
See also the definition of archaeological object in the National Monuments
Acts 1930 to 1994 (Ireland), s. 2, as amended by the National Monuments
(Amendment) Act 1994 (No. 17 of 1994) (Ireland), s. 14, which is reprinted
in [1996] I Art Antiquity & Law 318.
No 14 of 1957. The Antiquities Act, supra, n. 151, s. 35(1), states, “The
Antiquities and Treasure Trove Ordinance 1957… is, except in so far as
it applies to treasure troves, hereby repealed.”
Act 542, 2002 reprint.
Treasure Trove Act, id., s. 2(1).
Most items have some value, even if nominal. To distinguish treasure
trove from antiquities meaningfully the phrase “or any object or article of
value” may have to be interpreted ejusdem generis as referring to items of
significant value.
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It is submitted that if the concern was that precious objects
of any age should be protected, this could have been achieved
more simply by removing the age requirement in the
definition of an antiquity in the Antiquities Act.
To control the search for and removal of antiquities, the
Malaysian Antiquities Act prohibits persons from excavating
for the purpose of discovering antiquities, whether on land
of which they are the owners or occupiers or otherwise,
unless authorised by licence. 160 It is submitted that the
integrity of archaeological sites can be better preserved if
the use of detecting devices on the sites of ancient
monuments without consent is also prohibited, which is
the effect of article 29 of the Northern Ireland Order.161
The Antiquities Act requires persons who discover objects
and monuments which they have reason to believe to be
antiquities or ancient monuments to forthwith give notice
of their discoveries to the authorities, 162 and provides for
reasonable compensation to be paid to finders and private
landowners where antiquities are retained by the State.163
Alternatively, the Director General of Museums may, on
the Government’s behalf, enter into a written agreement
with a person entitled to compensation for him to receive a
share of an antiquity in place of compensation.164
Section 7 of the Act is particularly interesting. It entitles
the Director General to give written notice to any person in
possession of or lawfully entitled to sell or dispose of any
antiquity or historical object165 which the Director General
is satisfied is or will be of lasting national importance or
interest not to sell or otherwise dispose of the object without
giving written notice of any such proposed transaction to
him.166 The person thus notified is not permitted to sell or
160
161
162
163
164
165
166
Antiquities Act, supra, n. 151, s. 9.
Historic Monuments and Archaeological Objects (Northern Ireland) Order,
supra, n. 155. See also the National Monuments (Amendment) Act,
supra, n. 155, s. 7.
Antiquities Act, supra, n. 151, s. 4(1).
Id., s. 5(3).
Id., s. 6(1).
Defined in s. 2(1) as “any artefact or other object to which religious,
traditional, artistic or historic interest is attached and includes any (a)
ethnographic material such as a household or agricultural implement,
decorative article, personal ornament; (b) work of art such as a carving,
sculpture, painting, architecture, textile, musical instrument, weapon
and any other handicraft; (c) manuscript, coin, currency note, medal,
badge, insignia, coat of arm[s], crest[,] flag, arm and armour; (d) vehicle,
ship and boat, in part or in whole, whose production have ceased”.
Id., s. 7(1).
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
otherwise dispose of the antiquity or historical object until
90 days have elapsed from the time of her notice of the
proposed transaction to the Director General.167 The section
then states that “it shall be lawful for the Director General
to purchase such antiquity or historical object at a reasonable
price notwithstanding any agreement which the owner may
have entered into with another person”.
This provision may be compared with Part VI of the Act
which deals with the export of antiquities and historical
objects. Section 21(1) prohibits a person from exporting an
antiquity without a licence unless the antiquity was
originally imported by him, and requires the antiquity to
be declared to an officer of customs at a customs airport or
custom port. Under section 23, historical objects may be
detained by customs or other duly authorised officers and,
if the Director General is satisfied that the historical object
is or will be of lasting national importance he may prohibit
its export. Section 25(1) then provides that:
[w]here a licence to export any antiquity has
been refused on the ground that such antiquity
should be acquired on behalf of the Government
or where a historical object is prohibited from
being exported, the Director General shall pay
to the owner thereof the reasonable compensation
for such antiquity or historical object and
thereupon the said owner shall deliver up the
same to the Director General who may dispose
or deal with it in such manner as he deems fit.
Section 25(1) therefore allows for the compulsory acquisition
of antiquities and historical objects not already vested in
the State if their owners attempt to export them. It is not
clear whether section 7(2) has a similar effect, but it is
possible to read it in that manner. Compulsory acquisition
of property is not unknown in Singapore – the Land
Acquisition Act168 has provided for the compulsory possession
of land since 1967. In fact, section 12(1) of the Preservation
of Monuments Act169 permits the Preservation of Monuments
Board to request that the President, if he thinks fit, direct
the acquisition of any land, site or monument subject to a
preservation order in accordance with the provisions of the
167
168
169
Id., s. 7(2).
Cap 152, 1985 Rev. Edn.
Supra, n. 145. Compare the Northern Ireland Order, supra, n. 155, art.
13(1).
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SEPTEMBER 2004
Land Acquisition Act. However, the state’s interest in taking
ownership of cultural objects is arguably less pressing than
the need to compulsorily acquire land for national
development. It is therefore submitted that Singapore law
should not empower the Government to expropriate such
objects as this would be an unwarranted inroad into private
property rights. Instead, the UK position should be
considered. There, restrictions on the export of cultural
objects exist170 but an owner who is denied an export licence
and who does not accept any offers to purchase the object
for retention in the United Kingdom is merely required to
keep the object within the jurisdiction.
III: MOVEMENT OF CULTURAL OBJECTS ACROSS BORDERS
Evidence about Singapore’s role in transactions concerning
looted foreign cultural objects currently appears to be
largely anecdotal. Nonetheless, there is clearly an interest
in ensuring that the law has sufficient teeth to prevent
abuse of the nation’s position as an important commercial
centre in Asia.
1. Civil Law
(1) Stolen Objects Removed from Singapore. Singapore’s
lack of controls on the export of cultural objects may not
only lead to the loss of items valuable to the nation’s
heritage, but also makes it easier for stolen items to be
removed from the jurisdiction.
Once a thief has taken a stolen cultural object out of
Singapore, it is likely to be costly and time-consuming for
the owner to pursue a claim for it overseas. It is also
possible that the owner’s title to the object may pass under
the law of another jurisdiction to, say, a bona fide purchaser
for value. The validity of any such transaction is determined
by the law where the object is situated (the lex situs) at the
time of the transaction.171 In that eventuality, a Singapore
170
171
See the Export Control Act 2002 (c. 28) (UK) and the Export of Objects of
Cultural Interest (Control) Order 2003 (S.I. 2003 No 2759) (UK). Unlawful
export is punishable under the Customs and Excise Management Act
1979 (c. 2) (UK), s. 68. See also the EC Council Regulation on the
Export of Cultural Goods 1992 (EEC No. 3911/92) and the EC Council
Directive on the Return of Cultural Objects Unlawfully Removed from
the Territory of a Member State 1993 (93/7/EEC).
Diamond Centre Pte Ltd v. R Esmerian, Inc [1996] 3 S.L.R. 377, C.A., citing
Cammell v. Sewell (1860) 5 H&N 728, 157 E.R. 1371; Janesich v. George
Attenborough & Son (1910) 26 T.L.R. 278; and Winkworth v. Christie
Manson and Woods Ltd [1980] 1 Ch. 496. See also City of Gotha v. Sotheby’s
(No. 2), The Times (8 October 1998), H.C.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
court would uphold the foreign transaction,172 unless one
of the exceptions to the lex situs rule can be made out. For
instance, the lex situs rule does not apply where a purchaser
claiming title has not acted bona fide, or where the Singapore
court declines to recognise the particular law of the situs
because it considers it contrary to Singapore public policy.173
To fall within the latter exception, the foreign law would
have to be so outrageous that the court would regard it as
wholly contrary to justice and morality.174
(2) Stolen Objects Acquired by Persons in Singapore.
Complications can also arise when a Singapore purchaser
inadvertently acquires an object stolen from another
country. If the foreign owner sues in Singapore, the court
has to decide which jurisdiction’s law applies to the
transaction. Different laws can apply to different aspects
of the case: the general rule is that all matters of procedure
are governed by the domestic law of the country of the
court in which legal proceedings have been taken (the lex
fori), while matters of substance are governed by the law
to which the court is directed by its choice of law rule (the
lex causae). 175 Where limitation periods are concerned,
since Singapore has no equivalent to the Foreign Limitation
Periods Act 1984 (UK), 176 courts must apply the common
law rule under which statutes of limitation that merely
bar a remedy are considered procedural while those that
extinguish a right are substantive.177
Such difficulties are avoided by the NHB and its constituent
museums as they employ a stringent control process to
minimise the risk of acquiring objects from unidentified
sources. Measures taken include making acquisitions from
public fora such as international auctions where the objects
are published in catalogues and/or on public view, and
selecting objects with reliably-established provenances.
For proposed major acquisitions from private dealers, lists
of stolen works maintained by Interpol and UNESCO are
checked, or the Director of Archaeology or other senior
172
173
174
175
176
177
Compare Winkworth, ibid.
Ibid., at 501.
Ibid., at 510.
Dicey and Morris on the Conflict of Laws (Lawrence Collins ed., 13th edn.)
(London: Sweet & Maxwell, 2000), para. 7R-001 at 157.
Chapter 16.
Dicey and Morris, supra, n. 175, para. 7-040 at 172; para. 7-042 at 173-174.
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officials dealing with antiquities from the country of origin
of the object are consulted.178
The Board is also a member of the International Council of
Museums, and adopts ICOM’s Code of Ethics for Museums.179
Clause 3.2 of the Code states that a museum should not
acquire any object or specimen by purchase, gift, loan, bequest
or exchange unless the governing body and responsible officer
are satisfied that a valid title to it can be obtained. Every
effort must be made to ensure that it has not been illegally
acquired in, or exported from, its country of origin or any
intermediate country in which it may have been owned legally
(including the museum’s own country), and due diligence
should establish the full history of the item from discovery or
production before acquisition is considered.
In addition, the clause also stipulates that a museum should
not acquire objects by any means where the governing body
or responsible officer has reasonable cause to believe that
their recovery involved the unauthorised, unscientific or
intentional destruction or damage of ancient monuments
or archaeological sites, or involved a failure to disclose the
finds to the owner or occupier of the land or to the proper
legal or governmental authorities.
2. Criminal Law
It is possible to charge persons within Singapore who handle
cultural objects unlawfully removed from foreign countries
with receiving or retaining stolen property.180 As noted above,
property is considered as stolen even if its transfer by theft
or criminal misappropriation takes place outside Singapore.181
However, the other offences discussed previously 182 all
share a common weakness: while effective against criminal
activity in Singapore, they do not apply to acts occurring
abroad. A statute generally operates within the territorial
limits of the parliament that enacted it, and there is a
178
179
180
181
182
Personal communications with Dr Kenson Kwok, Director of the Asian
Civilisations Museum, dated 19 March 2003, and Ms Bridget Tracy Tan,
Curator, Singapore Art Museum, dated 2 June 2003.
Adopted unanimously by the 15th General Assembly of ICOM meeting in
Buenos Aires, Argentina, on 4 November 1986 and amended by the 20th
General Assembly of ICOM meeting in Barcelona, Spain on 6 July 2001
<http://icom.museum/ethics_rev_engl.html> (accessed 13 April 2004).
Supra, nn. 100-103, and the accompanying text.
Penal Code, supra, n. 92, s. 410(1).
Supra, nn. 92-99, and the accompanying text.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
rebuttable presumption against its extraterritorial
application. 183 There is an even stronger presumption
against a parliamentary intention to make acts by
foreigners abroad offences triable by local courts.184 Hence,
the provisions cannot be employed against persons who
bring illicitly-obtained cultural property stolen from
elsewhere into Singapore for transit or sale.
3. Proposals for Reform
Countries need to co-operate with each other in order to
effectively combat transnational dealings in illicit cultural
objects. It is thus submitted that Singapore should consider
acceding to relevant international treaties and enacting
new legislation to implement them.
The main international instruments in the field are the
UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property 1970185 and the Unidroit Convention on
Stolen or Illegally Exported Cultural Objects 1995. Singapore
is currently not a party to either Convention.
The UNESCO Convention is widely accepted – as at 1st April
2004 103 countries were parties to it, including the United
Kingdom and the United States. To date, the Asian
countries that have ratified or acceded to it are Cambodia,
China, Japan, North Korea, South Korea and Sri Lanka.186
Among other things, the UNESCO Convention requires a
State Party to introduce an export certification system for
cultural property187 and prohibit the exportation of such
property from its territory unless accompanied by an export
certificate, 188 prevent museums from acquiring illegally
183
184
185
186
187
188
Public Prosecutor v. Taw Cheng Kong [1998] 2 S.L.R. 410, para. 66 at 432,
C.A., citing Macleod v. Att-Gen for NSW [1891] A.C. 455, P.C. (on appeal
from Aust); R. v. Jameson [1896] 2 QB 425, DC; Air-India v. Wiggins [1980]
1 W.L.R. 815, H.L.; and Treacy v. D.P.P. [1971] A.C. 537, H.L. See also
Cox v. Army Council [1963] A.C. 48, H.L.; R v. Harden (Alan Goldstone)
[1963] 1 Q.B. 8; Archbold: Criminal Pleading, Evidence and Practice (P.J.
Richardson ed.) (London: Sweet & Maxwell, 2002), § 2-33; Blackstone’s
Criminal Practice (Peter Murphy ed.) (Oxford: Oxford University Press,
2003), para. D1.74 at 1010-1011.
See Jameson and Wiggins, ibid.
Signed 14 November 1970 (in force 24 April 1972) (hereinafter the
‘UNESCO Convention’). See Patrick J O’Keefe, Commentary on the UNESCO
1970 Convention on Illicit Traffic (Leicester: Institute of Art and Law, 2000).
UNESCO website <http://www.unesco.org> (accessed 13 April 2004).
UNESCO Convention, supra, n. 185, Art 6(a).
Id., Art 6(b).
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exported cultural property originating in another State
Party,189 and prohibit the importation of inventoried cultural
property stolen from a museum or a public monument in
another State Party. 190 One of the Convention’s key
features is that it establishes a system whereby a State
Party must take appropriate steps to recover and return
illicitly imported cultural property at the request of a State
Party of origin, provided that the requesting State must
pay just compensation to an innocent purchaser or to a
person who has a valid title to the property.191
I submit it would not be unduly burdensome for Singapore
to accede to the UNESCO Convention.192 Policies which
ensure that museums do not acquire illegally-exported
cultural objects are already in place, and I have already
proposed that an export control system should be
introduced. (To comply with the Convention, the export
control system would have to apply not only to antiquities,
but to other cultural objects such as artworks as well.)
The additional step that Singapore would need to take would
be to enact legislation imposing penalties or administrative
sanctions on the exportation of cultural property without a
valid certificate and the importation of inventoried cultural
property stolen from a museum or a public monument,193
and establishing a procedure for recovering and returning
illicitly imported cultural property.
Useful models for such legislation are provided by the
Protection of Movable Cultural Heritage Act 1986
(Australia),194 the Cultural Property Export and Import Act
(Canada),195 and the Mauritius Scheme for the Protection
of Cultural Heritage within the Commonwealth 1993.196
189
190
191
192
193
194
195
196
Id., Art 7(a).
Id., Art 7(b)(i).
Id., Art 7(b)(ii).
As Singapore is not a UNESCO member, it would need an invitation
from the Executive Board of UNESCO to accede to the UNESCO
Convention: see the Convention, id., Art 20(1).
Id., Art 8.
Act No 11 of 1986, as amended; see Hugh H. Jamieson, ‘The Protection
of Australia’s Movable Cultural Heritage’ (1995) 4 I.J.C.P. 215.
RS 1985, c. C-51; see Stephen Z. Katz, ‘Penal Protection of Cultural
Property: The Canadian Approach’ (1993) 2 I.J.C.P. 11.
Reprinted in (2002) 11 I.J.C.P. 137. The Scheme is not a treaty and
creates no binding, reciprocal rights and duties for countries which
adopt it. It is for individual Commonwealth countries to pass legislation
necessary to bring the principles of the Scheme into operation; see Patrick
J O’Keefe, ‘Protection of the Material Cultural Heritage: The
Commonwealth Scheme’ (1995) 44 I.C.L.Q. 147 at 148.
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LEGAL PROTECTION OF CULTURAL OBJECTS IN SINGAPORE
Common features of these documents include the following:
i.
The establishment of an export control system for
cultural objects.197
ii.
Provisions enabling a foreign country from which an
object has been unlawfully exported to request the
country where the object is located for assistance in
recovering and returning it.198
iii. An extended limitation period, or no time limit, for
claiming the return of cultural objects.199
iv. Criminalisation of the unlawful import and export of
cultural objects.200
While the repatriation of cultural property is a matter to
be dealt with on the governmental level under the UNESCO
Convention, the Unidroit Convention provides a right for
the owner of a stolen cultural object or the State from
which it was illegally exported to bring a claim directly in
the courts of the State where the object is located. 201 It
also applies to all forms of cultural property, not only those
that have been designated as such by a State.202
We previously examined the time limits for claims for
restitution of stolen or illegally exported objects under the
Unidroit Convention. 203 The extended time limits in the
Convention were the main reason why the UK Ministerial
Advisory Panel on Illicit Trade recommended against acceding
to the treaty. In its report,204 the Panel noted that a claimant
who failed to take obvious and reasonable steps to discover
the whereabouts of an object and the identity of its possessor
was immune so long as he received no actual knowledge of
these facts.205 Further, it was felt it would be unduly onerous
for vendors who had bought and sold objects in good faith and
197
198
199
200
201
202
203
204
205
Australian Act, s. 8; Canadian Act, s. 4; Commonwealth Scheme, cl. 5.
Australian Act, ss. 14(1) and 41; Canadian Act, ss. 37(3) to (8);
Commonwealth Scheme, cll. 7-13.
Canadian Act, ss. 37(9) (no limitation period); Commonwealth Scheme,
cl. 14 (five years after the date the country of export had knowledge of
the whereabouts of the item in the country of location).
Australian Act, ss. 9 and 14(2); Canadian Act, ss. 37(2) and 40;
Commonwealth Scheme, cl. 15. See also the Dealing in Cultural Objects
(Offences) Act 2003 (c. 27) (UK).
Unidroit Convention, supra, n. 74, Arts 3 and 5: Prott, supra, n. 74, at 15.
Unidroit Convention, id., Art. 2: Prott, id, at 26.
Supra, nn. 74-78, and the accompanying text.
Ministerial Advisory Panel on Illicit Trade, Department for Culture, Media
and Sport, Report (London: the Department, 2000) (Chair: Professor
Norman Palmer) (hereinafter ITAP Report).
Id., para. 50 at 23.
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with due diligence to remain vulnerable to claims and to
maintain records for such long periods of time.206
These are not insurmountable difficulties. It was pointed
out by the Panel that it may be possible for a State to
declare upon acceding to the Unidroit Convention that a
judge can have regard to knowledge which would have been
available to the claimant if reasonable efforts have been
made to trace the location of the object and the possessor’s
identity.207 In fact, such a qualification might be included
in the domestic legislation implementing the Convention
without such a declaration, arguably without doing violence
to the Convention’s text. I noted earlier that the Law
Commission for England and Wales recommended that for
claims related to theft the limitation period should not
begin until the claimant knows or ought to know the facts
giving rise to the cause of action and the location of the
property. For reasons that were stated earlier, extended
time limits for claims involving cultural objects can be
justified.208 And since documents can now be created and
stored electronically, it is no longer too inconvenient for
vendors to keep transaction records.
By signing up to the two Conventions, Singapore would
enable its nationals and museums to seek the recovery of
stolen cultural objects located in the territory of other States
Parties despite legal principles such as the lex situs rule
that might deprive claimants of title. The Conventions also
provide a means for residents of developing countries who
cannot afford to commence lawsuits in Singapore courts to
recover plundered objects by requesting that their
government take up the matter with the Singapore
Government on their behalf. It is worth noting that clause
4.4 of the ICOM Code of Ethics 209 states that the two
Conventions provide principles on which museums should
approach the return and restitution of cultural property.
There should not be much objection to signing up to the
Conventions if the NHB already abides by their principles.
206
207
208
209
Id., para. 51 at 23-24.
ITAP Report, supra, n. 204, para. 52 at 24. Declarations may be made
pursuant to the Unidroit Convention, supra, n. 74, Art 15.
Supra, nn. 40-47, and the accompanying text. Although the long-stop
limitation period that I proposed (supra, nn. 76-78, and the accompanying
text) is longer than that stipulated by the Unidroit Convention, supra, n.
74, Arts. 3(3) and 5(5), the Convention does not prevent a Contracting
State from applying any rules more favourable than provided for by the
Convention: id., Art. 9(1).
Supra, n. 179.
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It will be recalled that stolen cultural objects from several
Asian countries purportedly find their way to Singapore either
for sale or transit for shipment to other destinations.
Singapore’s accession to the UNESCO and Unidroit
Conventions would not assist countries such as Indonesia
and Vietnam as they are also not parties to the Conventions.
In particular, the Unidroit Convention is presently of limited
application – as at 1st April 2004 there were only 21 parties to
the Convention, and of these only two were Asian countries:
Cambodia and China. 210 If Singapore is serious about
stemming the inflow of illicit artefacts, participating in an
appropriate regional treaty together with other Asian countries
is a logical step. Both of the international Conventions are
designed to accommodate the application of specific treaties
between parties.211 It is to be noted that the member countries
of the Association of Southeast Asian Nations, of which
Singapore is one,212 stated as follows in Article 10 of the
ASEAN Declaration on Cultural Heritage 2000:213
ASEAN Member Countries shall exert the utmost
effort to protect cultural property against theft,
illicit trade and trafficking, and illegal transfer.
As parties to this Declaration, ASEAN Member
Countries shall cooperate to return, seek the
return, or help facilitate the return, to their
rightful owners of cultural property that has been
stolen from a museum, site, or similar
repositories, whether the stolen property is
presently in the possession of another member
or non-member country.
ASEAN Member Countries are urged to take
measures to control the acquisition of illicitly traded
cultural objects by persons and/or institutions in
their respective jurisdictions, and to cooperate with
other member and non-member countries having
serious problems in protecting their heritage by
properly educating the public and applying
appropriate and effective import and export controls.
210
211
212
213
Unidroit website <http://www.unidroit.org/English/implement/i95.htm> (accessed 13 April 2004).
UNESCO Convention, supra, n. 185, Art. 15; Unidroit Convention, supra,
n. 74, Art. 13.
The other ASEAN member countries are Brunei, Cambodia, Indonesia,
Laos, Malaysia, Myanmar, the Philippines, Thailand and Vietnam.
Signed on 25 July 2000: <http://www.asean.or.id/641.htm> (accessed
13 April 2004).
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IV: CONCLUSION
Singapore’s civil and criminal laws apply to chattels generally
and are not entirely suited to protecting cultural objects from
being unlawfully removed. Concerning the loss of cultural
objects, if stolen items have not left Singapore’s shores the
main drawback to the present civil law rules is the six-year
limitation period which, it is submitted, fails to provide owners
a reasonable opportunity to recover their property. On the
other hand, NHB museums that inadvertently acquire stolen
objects have insufficient flexibility to divest themselves of such
items in appropriate circumstances. Determining who owns
antiquities unearthed in Singapore may prove difficult because
it is simply not clear which legal principles apply. While the
criminal law in the form of the offences of theft and receiving
stolen property may help to some extent, there are no offences
designed to preserve the integrity of archaeological sites.
Singapore currently lacks a system controlling the export of
cultural objects which could prevent both the loss of its valuable
material cultural heritage as well as the removal of stolen items
from the country. Once objects have been taken abroad, the
expense and inconvenience of suing for their recovery in a foreign
jurisdiction may put an owner off. The owner may also lose
title under foreign laws. Similarly, the most that Singapore
authorities can do to assist the foreign owners of items that
have been brought into the island is to charge those in possession
with receiving stolen property if the elements of the offence can
be made out, as other existing criminal offences lack
extraterritorial reach. As many of the cultural objects that
surface in Singapore are from developing countries in the region,
the cost of commencing civil actions in Singapore to recover
them may be prohibitive for their owners. The effective control
of the illicit transnational trade in cultural objects thus depends
on co-ordination and co-operation between countries.
If Singapore intends to continue developing as a market for art
and antiquities as well as furthering international cultural
exchanges, demonstrating that it is a team player on the global
field cannot but help. Acceding to the UNESCO and Unidroit
Conventions and regional treaties would not only benefit its
nationals but also be a tangible expression of its commitment
to fight illicit dealings. Thereafter, what Singapore needs is a
comprehensive piece of legislation that implements its
international obligations and addresses the issues discussed
in this article. I believe that by strengthening its laws,
Singapore would celebrate its cultural heritage and, indeed,
that of its South-East Asian and international partner-nations.
280