Judicial independence in Singapore
Encyclopedia
Judicial independence in Singapore is protected by the Constitution
, statutes such as the Subordinate Courts Act and Supreme Court of Judicature Act, and the common law
. Independence of the judiciary
is the principle that the judiciary
should be separated from legislative
and executive
power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law
and democracy
.
To safeguard judicial independence, Singapore law
lays down special procedures to be followed before the conduct of Supreme Court judges may be discussed in Parliament
and for their removal from office for misconduct, and provides that their remuneration may not be reduced during their tenure. By statute, judicial officers of the Subordinate Courts
, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court have immunity from civil suits, and are prohibited from hearing and deciding cases in which they are personally interested. The common law provides similar protections and disabilities for Supreme Court judges. Both the Subordinate Courts and Supreme Court have power to punish for contempt of court
, though only the Supreme Court may convict persons of the offence of scandalizing the court
.
The Chief Justice
and other Supreme Court judges are appointed by the President
acting on the advice of Cabinet
. The President must consult the Chief Justice when appointing other judges, and may exercise personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. Supreme Court justices enjoy security of tenure
up to the age of 65 years, after which they cease to hold office. However, the Constitution permits such judges to be re-appointed on a term basis, as well as for judicial commissioners
to be appointed for limited periods, including the hearing of single cases. Judicial officers of the Subordinate Courts are also appointed on a term basis by the Legal Service Commission (LSC), and can be transferred from the courts to other government departments to serve as legal officers, and vice versa. It has been claimed that this creates a risk of executive interference, although a 1986 inquiry into such allegations found no evidence of this.
The courts exercise judicial review
of executive actions and legislation for compliance with the Constitution, empowering statutes and administrative law
principles. Though it has been noted that there is a low incidence of judicial disagreement with the executive, this may not be evidence of undue deference to the executive but may merely be that the executive has attained a high degree of fairness in its decision-making. The fact that a large number of defamation cases involving opponents of the Government
have been decided in favour of the Government and members of the ruling People's Action Party
has led to criticism that the judiciary is not impartial. On the other hand, it has been pointed out that the defendants in such cases have not been successful in proving the truth of the allegedly defamatory facts.
serves as a safeguard for the rights and privileges provided by the Constitution
and prevents executive
and legislative
encroachment upon those rights. It serves as a foundation for the rule of law
and democracy
. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary
's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.
The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary's independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference. The judiciary's role in deciding the validity of presidential
and parliamentary elections
also necessitates independence of the judiciary.
Also, an extremely independent judiciary would lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or harm. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. While judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between the two to ensure that justice is upheld.
. Part VII also provides other legislative safeguards which act as a protective wall against external pressures. These safeguards cannot be amended unless the changes are supported on the Second and Third Readings of constitutional amendment bills by the votes of not less than two-thirds of all elected Members of Parliament.
Other legislation which provides safeguards for judicial independence, particularly of junior Supreme Court judicial officers and judicial officers of the Subordinate Courts, includes the Judicial Proceedings (Regulation of Reports) Act, Legal Aid and Advice Act, Legal Profession Act, Subordinate Courts Act, and Supreme Court of Judicature Act. In addition, under the Code of Conduct for the Attorney-General's Chambers
legal officers are required to, among other things, "safeguard and enhance the proper administration of justice".
acting on the advice of his Cabinet
. The President exercises personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. The Chief Justice
must be consulted, though it is unclear how much weight his opinion carries. It has been noted that the current constitutional arrangements enable "[a] well-meaning Executive, sincerely believing in the justness and legitimacy of its governmental programme, ... to appoint Judges who, in essence, believe in the same fundamental policies. The problem is that this is anathema to the logic of the separation of powers
, directed as it is on the potential for the abuse or misuse of power." It is possible for an executive "bent on preserving its power at any cost" to control the judicial appointment process entirely, which would be undesirable as this may result in a bench packed with compliant judges. On the other hand, alternative judicial appointment methods have their own problems such as the possibility that judges cannot be appointed because decision-makers are unable to agree on the matter. As former Chief Justice of Australia
Harry Gibbs
pointed out:
The current judicial appointment system may also lead to a Bench
enjoying legitimacy as it is aligned with popular opinion. A positive result may be a cohesive state with an interdependent judiciary and executive where the judiciary is unlikely to become too activist and the executive pays due regard to laws.
, security of tenure
of judicial offices is important for judicial independence, as appointments that require periodic renewal by the executive or legislature render the judiciary liable to rule in favour of these branches of government. While Supreme Court judges in Singapore do not have tenure for life, they have security of tenure up to the age of 65 years, after which they cease to hold office.
A person who has ceased to hold the office of a judge may be appointed as Chief Justice or may sit as a judge of the High Court or a Judge of Appeal for a designated period as directed by the President if he concurs in his personal discretion with the Prime Minister's advice on the matter. In addition, to facilitate the disposal of business in the Supreme Court, judicial commissioners
may be appointed for limited periods, including the hearing of a single case only. This is generally done to clear a backlog of cases, or to test a judicial commissioner's suitability for appointment as a judge. Although judicial commissioners do not enjoy security of tenure, they have the same powers and enjoy the same immunities as Supreme Court judges. It has been suggested that the risk that such judges may not act independently is mitigated by public scrutiny of judicial decisions and the fact that it is to the judge's advantage, for future appointment, if he or she were to act independently in accordance with the law. Also, issues of independence will not usually arise as most of the disputes adjudicated by judicial commissioners will not involve the other arms of government.
are appointed to their positions by the Legal Service Commission (LSC) on a term basis, and do not enjoy security of tenure. These judges can be transferred by the LSC from the courts to other government departments to serve as legal officers, and vice versa. This may be said to create a risk of executive interference. The transfer of Senior District Judge Michael Khoo is often cited as an illustration of this. Opposition Member of Parliament
J.B. Jeyaretnam
and a co-accused had each been charged with three charges of having fraudulently transferred cheques to prevent the distribution of money to the creditors of the Workers' Party of Singapore
, and one charge of making a false declaration. In January 1981, Khoo acquitted the defendants of all charges except a single charge of fraud involving a cheque for S$
400. He sentenced Jeyaretnam to a $1,000 fine, which was below the amount of $2,000 that would have caused him to lose his seat in Parliament. Upon the Public Prosecutor's appeal to the High Court
, Chief Justice
Wee Chong Jin
ordered retrials on the two charges of cheque fraud that the defendants had been acquitted of. In August 1981, before the retrials, Khoo was transferred to the Attorney General's Chambers to take up appointment as a deputy public prosecutor. The defendants were convicted of the charges by a different senior district judge and sentenced to three months' imprisonment each. Jeyaretnam and his co-accused then appealed to the High Court, which confirmed their convictions but reduced the sentences to a fine of $5,000 each. However, a commission of inquiry convened in 1986 to examine Khoo's transfer determined that no evidence of executive interference in the Subordinate Courts had been presented, and that the transfer had been decided by the Chief Justice in consultation with the Attorney-General. It did not investigate why the transfer was made. In Parliamentary debates before and after the inquiry it was suggested on the one hand that the transfer had been routine and the timing coincidental, and on the other that it was related to Khoo's competence in handling the case. The reason for the transfer was never clearly established.
While a potential for executive interference exists due to the LSC's control of Subordinate Court judicial appointments, it has been commented that in a small state like Singapore it may not be practical to have a separate judicial and legal service. Also, the appointment process may not be detrimental to the independence of the lower judiciary as the Chief Justice, who is not part of the executive or legislature, is the head of the LSC and has the final say on judicial postings.
or registrar – may not be sued for any act done by him in the discharge of his judicial duty, whether or not the judge is acting within the limits of his jurisdiction
, so long as at the time he in good faith
believed himself to have jurisdiction to do or order the act complained of. There is no corresponding statutory provision applicable to Supreme Court judges, but at common law
a superior court judge enjoys absolute immunity from personal civil liability in respect of any judicial act which he does in his capacity as a judge. The immunity extends to acts done outside the judge's jurisdiction, so long as he has acted reasonably and believing in good faith that the act was within his powers. Like judicial officers of the Subordinate Courts, the Registrar, Deputy Registrar, Assistant Registrars and other persons acting judicially in the Supreme Court are given statutory immunity from civil suit.
of which notice has been given by not less than a quarter of the total number of MPs. In Singapore's context, given the large majority of seats held by the ruling party and the whip system that is in place, it is not difficult for the 25% requirement to be achieved. The procedure has not been invoked to date.
Additionally, the law provides that the High Court and the Court of Appeal have power to punish for contempt of court
. This has been interpreted by the courts to include punishing a person for scandalizing the court
when he or she is not in a judge's physical presence and in a context unconnected with matters pending before the Supreme Court. On the other hand, the Subordinate Courts only have power to punish contemptuous acts committed or words spoken in the face of the court or in connection with proceedings in the courts.
In addition, judges should be independent from the pressures exerted by third parties such as the general public, the media and non-governmental organization
s. To reduce direct third-party influence on judges, the SCA and SCJA provide that judicial officers of the Subordinate Courts, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court, cannot take any office of emolument (that is, a paid position), carry out any business directly or indirectly, or accept fees for any office, perquisites, emoluments or advantages in addition to their salaries and allowances. While judges cannot join private legal practice during their tenure, Singapore law does not forbid judges who have resigned or retired to return to private practice. It has been said that this causes potential executive interference with judicial independence to be counterproductive, and may give a judge more confidence to decide disputes without fear or favour.
The SCJA does not contain any provisions similar to the ones referred to above that apply to Supreme Court judges. Nonetheless, at common law a judge can be disqualified from hearing or deciding a case if he or she is actually biased against a party, or appears to biased. The test for apparent bias is whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible.
In addition, the courts possess the power of judicial review to correct or nullify executive acts or decisions which are contrary to the executive's statutory powers or otherwise contravene administrative law
principles. The low incidence of judicial disagreement with the executive in Singapore has been noted by commentators, but may not necessarily mean that the judiciary is unduly deferential to the executive. It may be the case that the executive has attained a high degree of fairness in its own decision-making. In 1989, Parliament intentionally curtailed the judiciary's ability to exercise judicial review of executive decisions made pursuant to the Internal Security Act
.
to interpreting written law by requiring that an interpretation that promotes the purpose or object underlying the law be preferred to one that does not promote the purpose or object. In determining the meaning of a provision of written law, the court may consider extrinsic materials, that is, materials not forming part of the written law. Such materials include the speech made in Parliament by a minister during the Second Reading of a bill
containing the provision, and other relevant material in any official record of Parliamentary debates. Through section 9A, Parliament requires judges to determine the meaning of written law by understanding the Parliamentary intention underlying the law and its purpose. Therefore, judges' freedom when it comes to statutory interpretation is somewhat restricted. However, it may be said that this deference
to Parliament is quintessential to uphold the certainty of law
and to avoid defeating the Parliament's intention in enacting statutes.
Heavy scrutiny of the criminal justice system occurs when a person on trial is a political opponent of the executive government. The pertinent question here, which is extremely difficult to answer, is whether the judge presiding over that particular case would have arrived at his decision in a different manner if the accused had not been a political opponent. However, the impartiality of the judiciary cannot necessarily be impugned on the ground that the courts have to enforce laws or rules of evidence and procedure that are felt to be unjust, because even the most independent judiciary must comply with laws enacted by the legislature.
or members of the ruling party in either contempt of court proceedings or defamation suits brought against critics of the Government, be they individuals or the media". Similar allegations have been made by other commentators. On the other hand, Transparency International
noted in its 2006 country study report on Singapore that truth was a defence to the "accusations and insinuations of nepotism and favouritism in government appointments" against government leaders that led to the defamation suits, and "[a]s such, if a serious accusation is made, the public hearing of these suits would give the defendant a prime opportunity to put forward the facts they allege. However, none of the defendants have proved the truth of their allegations."
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
, statutes such as the Subordinate Courts Act and Supreme Court of Judicature Act, and the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Independence of the judiciary
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
is the principle that the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
should be separated from legislative
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
and executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
.
To safeguard judicial independence, Singapore law
Law of Singapore
The legal system of Singapore is based on the English common law system. Major areas of law – particularly administrative law, contract law, equity and trust law, property law and tort law – are largely judge-made, though certain aspects have now been modified to some extent by statutes...
lays down special procedures to be followed before the conduct of Supreme Court judges may be discussed in Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
and for their removal from office for misconduct, and provides that their remuneration may not be reduced during their tenure. By statute, judicial officers of the Subordinate Courts
Subordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court have immunity from civil suits, and are prohibited from hearing and deciding cases in which they are personally interested. The common law provides similar protections and disabilities for Supreme Court judges. Both the Subordinate Courts and Supreme Court have power to punish for contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
, though only the Supreme Court may convict persons of the offence of scandalizing the court
Offence of scandalizing the court in Singapore
In Singapore, the offence of scandalizing the court is committed when a person performs any act or publishes any writing that is calculated to bring a court or a judge of the court into contempt, or to lower his authority...
.
The Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
and other Supreme Court judges are appointed by the President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
acting on the advice of Cabinet
Cabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
. The President must consult the Chief Justice when appointing other judges, and may exercise personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. Supreme Court justices enjoy security of tenure
Security of tenure
Security of tenure is a term used in political science to describe a constitutional or legal guarantee that an office-holder cannot be removed from office except in exceptional and specified circumstances....
up to the age of 65 years, after which they cease to hold office. However, the Constitution permits such judges to be re-appointed on a term basis, as well as for judicial commissioners
Judicial Commissioner
A Judicial Commissioner in Singapore is appointed to the Supreme Court by the President of Singapore on the advice of the Prime Minister, and has the powers of a Judge. A person may be appointed a Judicial Commissioner if he/she has been a "qualified person" within the meaning of section 2 of the...
to be appointed for limited periods, including the hearing of single cases. Judicial officers of the Subordinate Courts are also appointed on a term basis by the Legal Service Commission (LSC), and can be transferred from the courts to other government departments to serve as legal officers, and vice versa. It has been claimed that this creates a risk of executive interference, although a 1986 inquiry into such allegations found no evidence of this.
The courts exercise judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of executive actions and legislation for compliance with the Constitution, empowering statutes and administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
principles. Though it has been noted that there is a low incidence of judicial disagreement with the executive, this may not be evidence of undue deference to the executive but may merely be that the executive has attained a high degree of fairness in its decision-making. The fact that a large number of defamation cases involving opponents of the Government
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
have been decided in favour of the Government and members of the ruling People's Action Party
People's Action Party
The People's Action Party is the leading political party in Singapore. It has been the city-state's ruling political party since 1959....
has led to criticism that the judiciary is not impartial. On the other hand, it has been pointed out that the defendants in such cases have not been successful in proving the truth of the allegedly defamatory facts.
Theory of judicial independence
Importance
Judicial independenceJudicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
serves as a safeguard for the rights and privileges provided by the Constitution
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
and prevents executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and legislative
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
encroachment upon those rights. It serves as a foundation for the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.
The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary's independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference. The judiciary's role in deciding the validity of presidential
Presidential elections in Singapore
Presidential elections in Singapore, in which the President of Singapore is directly elected by popular vote, were introduced through amendments to the Constitution of Singapore in 1991. Potential candidates for office have to fulfil stringent qualifications set out in the Constitution....
and parliamentary elections
Parliamentary elections in Singapore
Parliamentary elections in Singapore must be held within three months after five years have elapsed from the date of the first sitting of a particular Parliament of Singapore. However, in most cases Parliament is dissolved and a general election called at the behest of the Prime Minister before the...
also necessitates independence of the judiciary.
Disadvantages
The disadvantages of having a judiciary that is seemingly too independent include possible abuse of power by judges. Self-interest, ideological dedication and even corruption may influence the decisions of judges without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent. The relationship between the judiciary and the executive is a complex series of dependencies and interdependencies which counter-check each other and must be carefully balanced. One cannot be too independent of the other. Furthermore, judicial support of the executive is not as negative as it seems as the executive is the branch of government with the greatest claim to democratic legitimacy. If the judiciary and executive are constantly feuding, no government can function well.Also, an extremely independent judiciary would lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or harm. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. While judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between the two to ensure that justice is upheld.
Legal safeguards
Part VII of the Constitution of the Republic of Singapore is the main legislation which protects the independence of Supreme Court judges. Article 93 vests judicial power in the judiciary without placing any restriction on how it may be exercised in matters within the court's jurisdiction, which shows recognition and acceptance of the judiciary as an independent institution in SingaporeSingapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
. Part VII also provides other legislative safeguards which act as a protective wall against external pressures. These safeguards cannot be amended unless the changes are supported on the Second and Third Readings of constitutional amendment bills by the votes of not less than two-thirds of all elected Members of Parliament.
Other legislation which provides safeguards for judicial independence, particularly of junior Supreme Court judicial officers and judicial officers of the Subordinate Courts, includes the Judicial Proceedings (Regulation of Reports) Act, Legal Aid and Advice Act, Legal Profession Act, Subordinate Courts Act, and Supreme Court of Judicature Act. In addition, under the Code of Conduct for the Attorney-General's Chambers
Attorney-General of Singapore
The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor.The office was founded in 1867 as the chief legal officer of the British crown colony of the Straits Settlements. The current requirements for appointment as...
legal officers are required to, among other things, "safeguard and enhance the proper administration of justice".
Appointment of judges
Judges of the Supreme Court are appointed by the PresidentPresident of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
acting on the advice of his Cabinet
Cabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
. The President exercises personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. The Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
must be consulted, though it is unclear how much weight his opinion carries. It has been noted that the current constitutional arrangements enable "[a] well-meaning Executive, sincerely believing in the justness and legitimacy of its governmental programme, ... to appoint Judges who, in essence, believe in the same fundamental policies. The problem is that this is anathema to the logic of the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, directed as it is on the potential for the abuse or misuse of power." It is possible for an executive "bent on preserving its power at any cost" to control the judicial appointment process entirely, which would be undesirable as this may result in a bench packed with compliant judges. On the other hand, alternative judicial appointment methods have their own problems such as the possibility that judges cannot be appointed because decision-makers are unable to agree on the matter. As former Chief Justice of Australia
Chief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
Harry Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
pointed out:
The current judicial appointment system may also lead to a Bench
Bench (law)
Bench in legal contexts means simply the location in a courtroom where a judge sits. The historical roots of that meaning come from the fact that judges formerly sat on long seats or benches when presiding over a court...
enjoying legitimacy as it is aligned with popular opinion. A positive result may be a cohesive state with an interdependent judiciary and executive where the judiciary is unlikely to become too activist and the executive pays due regard to laws.
Removal of judges
In Singapore, judges can only be removed for misbehaviour or incapacity. Removal of a judge of the Supreme Court may only be effected upon the recommendation of a tribunal of his or her peers. Such a system is arguably better than a system of removal by politicians in securing judicial independence as there will be less exploitation by politicians seeking to influence judges.Supreme Court judges
According to Alexander HamiltonAlexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
, security of tenure
Security of tenure
Security of tenure is a term used in political science to describe a constitutional or legal guarantee that an office-holder cannot be removed from office except in exceptional and specified circumstances....
of judicial offices is important for judicial independence, as appointments that require periodic renewal by the executive or legislature render the judiciary liable to rule in favour of these branches of government. While Supreme Court judges in Singapore do not have tenure for life, they have security of tenure up to the age of 65 years, after which they cease to hold office.
A person who has ceased to hold the office of a judge may be appointed as Chief Justice or may sit as a judge of the High Court or a Judge of Appeal for a designated period as directed by the President if he concurs in his personal discretion with the Prime Minister's advice on the matter. In addition, to facilitate the disposal of business in the Supreme Court, judicial commissioners
Judicial Commissioner
A Judicial Commissioner in Singapore is appointed to the Supreme Court by the President of Singapore on the advice of the Prime Minister, and has the powers of a Judge. A person may be appointed a Judicial Commissioner if he/she has been a "qualified person" within the meaning of section 2 of the...
may be appointed for limited periods, including the hearing of a single case only. This is generally done to clear a backlog of cases, or to test a judicial commissioner's suitability for appointment as a judge. Although judicial commissioners do not enjoy security of tenure, they have the same powers and enjoy the same immunities as Supreme Court judges. It has been suggested that the risk that such judges may not act independently is mitigated by public scrutiny of judicial decisions and the fact that it is to the judge's advantage, for future appointment, if he or she were to act independently in accordance with the law. Also, issues of independence will not usually arise as most of the disputes adjudicated by judicial commissioners will not involve the other arms of government.
Subordinate Court judges
District judges and magistrates of the Subordinate CourtsSubordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
are appointed to their positions by the Legal Service Commission (LSC) on a term basis, and do not enjoy security of tenure. These judges can be transferred by the LSC from the courts to other government departments to serve as legal officers, and vice versa. This may be said to create a risk of executive interference. The transfer of Senior District Judge Michael Khoo is often cited as an illustration of this. Opposition Member of Parliament
Members of the Singapore Parliament
The following is a historical list of members for the current and past ten Parliaments of Singapore:-See also:*1st Parliament of Singapore*2nd Parliament of Singapore*3rd Parliament of Singapore*4th Parliament of Singapore*5th Parliament of Singapore...
J.B. Jeyaretnam
Joshua Benjamin Jeyaretnam
Joshua Benjamin Jeyaretnam was a politician and lawyer from Singapore. He was the leader of the Workers' Party from 1971 to 2001...
and a co-accused had each been charged with three charges of having fraudulently transferred cheques to prevent the distribution of money to the creditors of the Workers' Party of Singapore
Workers' Party of Singapore
The Workers' Party of Singapore is a centre-left opposition political party in Singapore. The party currently has six elected seats in Parliament, with the party's Secretary-General Low Thia Khiang, Chairman Sylvia Lim, Chen Show Mao, Muhamad Faisal Manap and Pritam Singh serving as Members of...
, and one charge of making a false declaration. In January 1981, Khoo acquitted the defendants of all charges except a single charge of fraud involving a cheque for S$
Singapore dollar
The Singapore dollar or Dollar is the official currency of Singapore. It is normally abbreviated with the dollar sign $, or alternatively S$ to distinguish it from other dollar-denominated currencies...
400. He sentenced Jeyaretnam to a $1,000 fine, which was below the amount of $2,000 that would have caused him to lose his seat in Parliament. Upon the Public Prosecutor's appeal to the High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
, Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
Wee Chong Jin
Wee Chong Jin
Wee Chong Jin was born in Penang to parents Wee Gim Puay and Lim Paik Yew. He received his early education at the Penang Free School, and read law at St John's College, Cambridge...
ordered retrials on the two charges of cheque fraud that the defendants had been acquitted of. In August 1981, before the retrials, Khoo was transferred to the Attorney General's Chambers to take up appointment as a deputy public prosecutor. The defendants were convicted of the charges by a different senior district judge and sentenced to three months' imprisonment each. Jeyaretnam and his co-accused then appealed to the High Court, which confirmed their convictions but reduced the sentences to a fine of $5,000 each. However, a commission of inquiry convened in 1986 to examine Khoo's transfer determined that no evidence of executive interference in the Subordinate Courts had been presented, and that the transfer had been decided by the Chief Justice in consultation with the Attorney-General. It did not investigate why the transfer was made. In Parliamentary debates before and after the inquiry it was suggested on the one hand that the transfer had been routine and the timing coincidental, and on the other that it was related to Khoo's competence in handling the case. The reason for the transfer was never clearly established.
While a potential for executive interference exists due to the LSC's control of Subordinate Court judicial appointments, it has been commented that in a small state like Singapore it may not be practical to have a separate judicial and legal service. Also, the appointment process may not be detrimental to the independence of the lower judiciary as the Chief Justice, who is not part of the executive or legislature, is the head of the LSC and has the final say on judicial postings.
Remuneration
Appropriate remuneration is important for judicial independence as "a power over a man's subsistence amounts to a power over his will". In Singapore, a Supreme Court judge's remuneration is constitutionally protected as it may not be reduced during his or her tenure. Additionally, the quantum of remuneration is adequate to accord judges a standard of living which matches their standing in society. Such measures prevent judicial corruption, which would damage judicial independence, as judges who are poorly paid are more likely to succumb to bribes from interested parties. However, the Constitution does not prevent the Government from instituting a policy of positive incentivization by increasing judicial pay whenever decisions go their way. There is no evidence that this has occurred.Immunity from civil suits
Immunity from suits for acts or omissions in the discharge of judicial duties can promote the independence of judges in their decision-making. The Subordinate Courts Act ("SCA") provides that a judicial officer of the Subordinate Courts – that is, a district judge, magistrate, coronerCoroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
or registrar – may not be sued for any act done by him in the discharge of his judicial duty, whether or not the judge is acting within the limits of his jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
, so long as at the time he in good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
believed himself to have jurisdiction to do or order the act complained of. There is no corresponding statutory provision applicable to Supreme Court judges, but at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
a superior court judge enjoys absolute immunity from personal civil liability in respect of any judicial act which he does in his capacity as a judge. The immunity extends to acts done outside the judge's jurisdiction, so long as he has acted reasonably and believing in good faith that the act was within his powers. Like judicial officers of the Subordinate Courts, the Registrar, Deputy Registrar, Assistant Registrars and other persons acting judicially in the Supreme Court are given statutory immunity from civil suit.
Measures protecting respect and support for the judiciary
The conduct of a Supreme Court judge cannot be discussed in Parliament, except on a substantive motionMotion (parliamentary procedure)
In parliamentary procedure, a motion is a formal proposal by a member of a deliberative assembly that the assembly take certain action. In a parliament, this is also called a parliamentary motion and includes legislative motions, budgetary motions, supplementary budgetary motions, and petitionary...
of which notice has been given by not less than a quarter of the total number of MPs. In Singapore's context, given the large majority of seats held by the ruling party and the whip system that is in place, it is not difficult for the 25% requirement to be achieved. The procedure has not been invoked to date.
Additionally, the law provides that the High Court and the Court of Appeal have power to punish for contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
. This has been interpreted by the courts to include punishing a person for scandalizing the court
Offence of scandalizing the court in Singapore
In Singapore, the offence of scandalizing the court is committed when a person performs any act or publishes any writing that is calculated to bring a court or a judge of the court into contempt, or to lower his authority...
when he or she is not in a judge's physical presence and in a context unconnected with matters pending before the Supreme Court. On the other hand, the Subordinate Courts only have power to punish contemptuous acts committed or words spoken in the face of the court or in connection with proceedings in the courts.
Judges not to act where personally interested
To maintain public confidence in the judiciary, it is important to maximize judges' independence from personal interests, beliefs and prejudices, and ensure that they are not perceived to be affected by their personal beliefs and prejudices. The Subordinate Courts Act and Supreme Court of Judicature Act ("SCJA") provide that judicial officers of the Subordinate Courts, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court, are not permitted to investigate or hear and decide any proceedings to or in which they are parties or personally interested, unless the parties to the proceedings have consented and the Chief Justice has given approval.In addition, judges should be independent from the pressures exerted by third parties such as the general public, the media and non-governmental organization
Non-governmental organization
A non-governmental organization is a legally constituted organization created by natural or legal persons that operates independently from any government. The term originated from the United Nations , and is normally used to refer to organizations that do not form part of the government and are...
s. To reduce direct third-party influence on judges, the SCA and SCJA provide that judicial officers of the Subordinate Courts, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court, cannot take any office of emolument (that is, a paid position), carry out any business directly or indirectly, or accept fees for any office, perquisites, emoluments or advantages in addition to their salaries and allowances. While judges cannot join private legal practice during their tenure, Singapore law does not forbid judges who have resigned or retired to return to private practice. It has been said that this causes potential executive interference with judicial independence to be counterproductive, and may give a judge more confidence to decide disputes without fear or favour.
The SCJA does not contain any provisions similar to the ones referred to above that apply to Supreme Court judges. Nonetheless, at common law a judge can be disqualified from hearing or deciding a case if he or she is actually biased against a party, or appears to biased. The test for apparent bias is whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible.
Judicial review
Article 4 of the Constitution declares: "This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void." As regards laws that were in force prior to the Constitution coming into force on 9 August 1965, Article 162 states that they continue to apply after the Constitution's commencement but must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. Although neither of these Articles expressly confers power on the judiciary to strike down unconstitutional executive decisions or laws, the Court of Appeal held in the 1994 case Chan Hiang Leng Colin v. Public Prosecutor:In addition, the courts possess the power of judicial review to correct or nullify executive acts or decisions which are contrary to the executive's statutory powers or otherwise contravene administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
principles. The low incidence of judicial disagreement with the executive in Singapore has been noted by commentators, but may not necessarily mean that the judiciary is unduly deferential to the executive. It may be the case that the executive has attained a high degree of fairness in its own decision-making. In 1989, Parliament intentionally curtailed the judiciary's ability to exercise judicial review of executive decisions made pursuant to the Internal Security Act
Internal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
.
Statutory interpretation
When it comes to interpreting statutes, judges are expected to abide by the rules set out by the Legislature. On 26 February 1993, the Interpretation (Amendment) Act 1993 was passed to reform the law relating to statutory interpretation. The amending Act inserted section 9A into the Interpretation Act, which mandates that judges take a purposive approachPurposive rule
There are two broad approaches to interpretation: the literal approach and the purposive approach. The literal approach is dominant in the UK. The judge looks at the words in the statute and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks...
to interpreting written law by requiring that an interpretation that promotes the purpose or object underlying the law be preferred to one that does not promote the purpose or object. In determining the meaning of a provision of written law, the court may consider extrinsic materials, that is, materials not forming part of the written law. Such materials include the speech made in Parliament by a minister during the Second Reading of a bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
containing the provision, and other relevant material in any official record of Parliamentary debates. Through section 9A, Parliament requires judges to determine the meaning of written law by understanding the Parliamentary intention underlying the law and its purpose. Therefore, judges' freedom when it comes to statutory interpretation is somewhat restricted. However, it may be said that this deference
Judicial deference
Judicial deference is a doctrine by which judges seek to avoid frustrating the will of the legislature when deciding cases . It is most commonly found in countries, such as the United Kingdom, which lack an entrenched constitution, as the essential purpose of such documents is to limit the power of...
to Parliament is quintessential to uphold the certainty of law
Legal certainty
Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law....
and to avoid defeating the Parliament's intention in enacting statutes.
Criminal proceedings
In Singapore, where conviction rates for criminal offences are high, an acquittal is akin to the judiciary rejecting the executive's stand regarding a party’s guilt. Although it has been suggested that the low acquittal rate is evidence of a lack of judicial independence, it is also consistent with a stringent prosecution process that takes action only against persons who are manifestly guilty, such that even the most fair and independent-minded judge would decide to convict.Heavy scrutiny of the criminal justice system occurs when a person on trial is a political opponent of the executive government. The pertinent question here, which is extremely difficult to answer, is whether the judge presiding over that particular case would have arrived at his decision in a different manner if the accused had not been a political opponent. However, the impartiality of the judiciary cannot necessarily be impugned on the ground that the courts have to enforce laws or rules of evidence and procedure that are felt to be unjust, because even the most independent judiciary must comply with laws enacted by the legislature.
Defamation suits
According to a 1996 report by Dato' Param Cumaraswamy, then United Nations Special Rapporteur on the independence of judges and lawyers, allegations concerning the independence and impartiality of the Singapore judiciary "could have stemmed from the very high number of cases won by the GovernmentGovernment of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
or members of the ruling party in either contempt of court proceedings or defamation suits brought against critics of the Government, be they individuals or the media". Similar allegations have been made by other commentators. On the other hand, Transparency International
Transparency International
Transparency International is a non-governmental organization that monitors and publicizes corporate and political corruption in international development. It publishes an annual Corruption Perceptions Index, a comparative listing of corruption worldwide...
noted in its 2006 country study report on Singapore that truth was a defence to the "accusations and insinuations of nepotism and favouritism in government appointments" against government leaders that led to the defamation suits, and "[a]s such, if a serious accusation is made, the public hearing of these suits would give the defendant a prime opportunity to put forward the facts they allege. However, none of the defendants have proved the truth of their allegations."