Constitutional Law 4

The JudiciaryPart 1

Outline of Lectures

1. Framework of Singapore’s higher judiciary

2. Meaning, content & scope of ‘judicial power’

3. Nature & sources of ‘judicial power’

4. Judicial independence

5. Jurisdiction of the courts

6. Functions of the judiciary

7. Limits on judicial review

8. Effect of judicial review

Framework of the Higher Judiciary

1. Article 93 – vests judicial power in Supreme Court such subordinate courts as may be provided by any written law.

2. Court system established under Constitution and Supreme Court of Judicature Act & Subordinate Courts Act. 1. 1826 – Court of Judicature

2. 1867 – Supreme Court of the Straits Settlements

3. 1946 – Supreme Court of Colony of Singapore

4. 1963 – High Court of Malaysia sitting in Singapore & Federal Court

5. 1969 – Supreme Court of Singapore


Court of Appeal (Appellate Jurisdiction)

1. Chief Justice (as President)

2. Vice-President

3. Judges of Appeal

4. Other puisne judges of High Court

High Court (Appellate & Original Jurisdiction)

1. Chief Justice

2. Puisne judges


Other Functions

1. Article 100 – establishes tribunal of 3 judges – to render opinion on any question affecting the Constitution – Constitutional Reference No 1 of 1995.

2. Removal of Elected President – Article 22L. At least 5 judges of Supreme Court including CJ. Appointed by CJ.

Grounds for Removal

1. Intentional violation of the Constitution

2. Treason

3. Misconduct or corruption involving abuse of powers of office

4. Any offence involving fraud, dishonesty or moral turpitude

5. Where such motion is adopted by not less than half of total number of MPs.

The Judicial Power

Definition:

‘power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property.’

Huddart Parker Pty Ltd v Moorehead (1908-1909) 8 CLR 330.

The Judicial Power - Cases

1. PP v Dato Yap Peng (Supreme Court, Malaysia, 1987)

2. Liyanage v The Queen (PC, Ceylon, 1962)

3. Hinds v The Queen (PC, Jamaica, 1977)

4. Commissioner of Police v Skip Patrick Davis (PC, Bahamas, 1994)

5. Surratt v AG of Trinidad & Tobago (PC, 2008)

Judicial Authority

• Judicial Power vs Judicial Authority

• Judicial authority is not granted but asserted – power of judicial review

• Sir Edward Coke in Dr Bonham’s case.

‘in many cases the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void.

Judicial Authority

John Marshall CJ

Marbury v Madison:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two rules conflict with each other, the courts must decide on the operation of each.

all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void.

Judicial Independence



Federalist No 78

The complete independence of the courts of justice is peculiarly essential in a limited Constitution … Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

1. Security of Tenure2. Security of Remuneration1. Security of Tenure2. Security of Remuneration


Article 98(1)Subject to this Article, a Judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time not being later than 6 months after he attains that age, as the President may approve.

Article 98(1)Subject to this Article, a Judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time not being later than 6 months after he attains that age, as the President may approve.

Article 94(1)

The Supreme Court shall consist of the Court of Appeal and the High Court with such jurisdiction and powers as are conferred on those Courts by this Constitution or any written law.

Article 94(2)The office of the Judge of the Supreme Court shall not be abolished during his continuance in office


Article 94(3)A person qualified for appointment as a Judge of the Supreme Court or a person who has ceased to hold the office of Judge of the Supreme Court may be appointed as the Chief Justice in accordance with Article 95, or may sit as a Judge of the High Court or as a Judge of Appeal, if designated for the purpose (as the occasion requires) in accordance with Article 95, and such person shall hold office for such period or periods as the President, if the President, acting in his discretion, concurs with the advice of the Prime Minister, shall direct.

Article 94(3)A person qualified for appointment as a Judge of the Supreme Court or a person who has ceased to hold the office of Judge of the Supreme Court may be appointed as the Chief Justice in accordance with Article 95, or may sit as a Judge of the High Court or as a Judge of Appeal, if designated for the purpose (as the occasion requires) in accordance with Article 95, and such person shall hold office for such period or periods as the President, if the President, acting in his discretion, concurs with the advice of the Prime Minister, shall direct.

Article 94(4)In order to facilitate the disposal of business in the Supreme Court, the President, if he, acting in his discretion, concurs with the advice of the Prime Minister, may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner of the Supreme Court in accordance with Article 95 for such period or periods as the President thinks fit; and a Judicial Commissioner so appointed may, in respect of such class or classes of cases as the Chief Justice may specify, exercise the powers and perform the functions of a Judge of the High Court. Anything done by a Judicial Commissioner when acting in accordance with the terms of his appointment shall have the same validity and effect as if done by a Judge of that Court and, in respect thereof, he shall have the same powers and enjoy the same immunities as if he had been a Judge of that Court.

Article 94(4)In order to facilitate the disposal of business in the Supreme Court, the President, if he, acting in his discretion, concurs with the advice of the Prime Minister, may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner of the Supreme Court in accordance with Article 95 for such period or periods as the President thinks fit; and a Judicial Commissioner so appointed may, in respect of such class or classes of cases as the Chief Justice may specify, exercise the powers and perform the functions of a Judge of the High Court. Anything done by a Judicial Commissioner when acting in accordance with the terms of his appointment shall have the same validity and effect as if done by a Judge of that Court and, in respect thereof, he shall have the same powers and enjoy the same immunities as if he had been a Judge of that Court.

Article 94(3)For the purposes of clause (4), the President may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner to hear and determine a specified case only.

Article 94(3)For the purposes of clause (4), the President may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner to hear and determine a specified case only.

The Removal of Judges

Article 93Judge may be removed if ‘the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the President that a Judge of the Supreme Court ought to be removed on the grounds of:

• misbehaviour; • or of inability, from infirmity of body or

mind or any other cause, to properly discharge the functions of his office.

Article 93Judge may be removed if ‘the Prime Minister, or the Chief Justice after consulting the Prime Minister, represents to the President that a Judge of the Supreme Court ought to be removed on the grounds of:

• misbehaviour; • or of inability, from infirmity of body or

mind or any other cause, to properly discharge the functions of his office.

President will appoint tribunal consisting of ‘not less than 5 persons who hold or have held office as a Judge of the Supreme Court, or if it appears to the President expedient to make such an appointment, persons who hold or have held equivalent office in any part of the Commonwealth.

President will appoint tribunal consisting of ‘not less than 5 persons who hold or have held office as a Judge of the Supreme Court, or if it appears to the President expedient to make such an appointment, persons who hold or have held equivalent office in any part of the Commonwealth.

The Removal of Malaysian Judges

Salleh Abas’ Tribual

1.Tan Sri Hamid Omar (Chairman & Ag CJ)2.Lee Hun Hoe (Chief Justice of Borneo)3.KAP Ranasinghe (Chief Justice of Sri Lanka)4.TS Sinnathuray (Senior Judge, Singapore)5.Abdul Aziz Mohd Zain, Former Federal Court Judge6.Mohd Zahir Ismail, former High Court

Salleh Abas’ Tribual

1.Tan Sri Hamid Omar (Chairman & Ag CJ)2.Lee Hun Hoe (Chief Justice of Borneo)3.KAP Ranasinghe (Chief Justice of Sri Lanka)4.TS Sinnathuray (Senior Judge, Singapore)5.Abdul Aziz Mohd Zain, Former Federal Court Judge6.Mohd Zahir Ismail, former High Court


1. Two types of contempt – contempt by interference & contempt by disobedience.

2. Power to punish for contempt necessary to ensure that judiciary is free from external influence which could prejudice a fair trial.

AG v Times Newspaper (1974):

Law of contempt is ‘founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should … be limited to what is reasonably necessary for that purpose.’

AG v Hertzberg Daniel & Ors (2008):

… the rationale for the law of contempt is rooted firmly in the public interest in that it aims to protect the administration of justice as well as public confidence in it, which is crucial for the rule of law and the maintenance of law and order in any civilized society. It is not in anyway intended to protect the dignity of the courts of judges.


Proceedings by way of an order for committal initiated by Attorney-General.

Subordinate Courts Act

Section 8 (Contempt): The subordinate courts shall have power to punish for contempt of court

Supreme Court of Judicature Act

Section 7: The High Court and Court of Appeal shall have power to punish for contempt of court.

Contemptuous Behaviour

1. Newspaper articles – AG v Pang Cheng Lian; Wong Hong Toy; Fred Zimmerman

2. Blogs – Gopalan Nair

3. Insulting Judge – Gopalan Nair

4. Contemptuous T-shirts – the Kangaroo Court case

Scandalising the Judiciary - Cases

AG v Pang Cheng Lian (1975)

Pang – stringer for Newsweek – provided information resulting in article ‘Singapore-Selective Justice’

The High Court ‘did little to dispel the notion that the courts here are little more than extensions of the one-party system’; ‘in the courts in Singapore, it makes a vital difference whether it is the government or the opposition that is in the dock.’


AG v Pang Cheng Lian (1975)

• Pang was supplier of information, not author of the article

• Two others were prosecuted – Victor Santhanam (circulation manager for Newsweek in Singapore) & CR Dasaratha Raj (Singapore distributors for Newsweek). Strict liability.

• Followed in AG v Wong Hong Toy (1983).


AG v Fred Zimmerman & Ors (1986)

• Article – ‘Jeyaretnam’s Challenge’ appeared in Asian Wall Street Journal

• Article suggested that courts were not independent and that public had little faith in its independence.

• Owners of AWSJ, Features Editor, publisher a & editor, and editorial page editor, printers & distributors.


‘Kangaroo Court’ case (2008)

• 3 members of SDP wearing T-shirts imprinted with images of Kangaroo dressed in judge’s robe

• Sitting in public gallery of Supreme Court for 2 days during SDP defamation hearing.

• One even said to LKY as he was passing by that ‘This is a kangaroo court’.

• Jailed for 15 days and 8 days (2) respectively.


Goplan Nair blogging case (2008)

• Attack on Belinda Ang J for her handling of the SDP defamation case: ‘The judge Belinda Ang was throughout prostituting herself during the entire proceedings by being nothing more than an employee of Mr. Lee Kuan Yew and his son and carrying out their orders.’ – 8 weeks jail

• Sending email to Lai Siu Chiu J

Your Judge Lai Siu Chiu has no shame. The reason why she and her fellow judges punish and silence PAP critics are because judges are well paid and have comfortable lives. They are selling their souls and their conscience for money. They are misusing the law for personal gain. Your Singapore judges including Lai are corrupt judges".

The Applicable Test – Inherent Tendency

• AG v Barry Wain & Ors (1991) – Asian Wall Street Journal article suggested Singapore judiciary was biased in defamation case between LKY and FEER:

• Distinct from ‘real likelihood’. Affirmed in subsequent cases.

• AG v Hertzberg Daniel & Ors (2008): defences in defamation not applicable to contempt of court proceedings.

• No defence of fair comment: This will expose integrity of courts to more bouts of unwarranted attacks.

• Fair criticism exceeded when directed at impartiality of the courts or imputes improper motive to judges.

It is settled law that any publication which alleges bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function which has terminated is contempt of court … [I]t is sufficient to prove that the words complained of have the inherent tendency to interfere with the administration of justice.

… the ‘inherent tendency’ test has two clear advantages … First, it does not call for detailed proof of what in many instances will be unprovable, namely, that public confidence in the administration of justice really was impaired by the relevant publication … Secondly, it enables the court to step in before the damage, ie the impairment of public confidence in the administration of justice, actually occurs.

Power to Punish for Contempt: Some Problems

• AG v Barry Wain & Ors (1991) per Sinnathuray J:

I recognise that this Court has a duty to uphold the right to freedom of speech and expression, and I accept that this right must be balanced against the needs of the administration of justice, one of which is to protect the integrity of the courts.

• Quaere: Will suppression of criticism against the judiciary inspire greater public confidence?

Power to Punish for Contempt: Some Problems

• Quaere: Are we not adopting an overly pessimistic view of the discernment of the Singaporean public?

• McLeod v St Aubyn (PC, 1899)

Committals for contempt of court by scandalizing the Court itself have become obsolete in this country. Courts are satisfied to leave public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of colour populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Courts.

Reiterated in Gilbert Ahnee v DPP (PC, 1998)

Jurisdiction of the Courts

1. Inherent jurisdiction

2. Review jurisdiction

3. Judicial Review jurisdiction

4. Supervisory jurisdiction

5. Revision jurisdiction


Supervisory Jurisdiction Appellate Jurisdiction

Does not go to merits of the case

Touches on merits of the case. Appellant court will substitute the decision of the lower court/tribunal with one of its own.

Pending cases are subject ot jurisdiction

Only activated if there is an actual decision or judgment

Grounds:•Want of jurisdiction•Error of law•Breach of natural justice•Ultra Vires


Supervision Revision

Extends to all administrative tribunals

Confined to subordinate courts

Initiated by party seeking relief

Can be at the instance of the High Court

Concerned with questions that do not touch on merits of the case

Deals with errors of fact and law

Effected by Prerogative Writs:•Certiorari•Prohibition•Mandamus•Habeas Corpus•Quo Warranto

Wide flexibility of remedies, eg retrial, overturn decision etc.

The Limits of Judicial Review

1. Case of Controversy requirements

2. Political Questions

3. Legislative Prohibitions

4. Other Prohibitions:

a) Laches

b) Prerogative powers

c) Decisions of Superior Courts

d) Res Judicata

Case or Controversy

Karpal Singh v Sultan of Selangor (1988)

1. Case must be real and not theoretical

2. Case must be ripe

3. No collusive cases allowed

4. Applicant must have locus standi

The Limits of Judicial Review

1. Case of Controversy requirements

2. Political Questions (Baker v Carr, US)

3. Legislative Prohibitions (Re Application Yee Yut Ee, Singapore, 1978)

4. Other Prohibitions:

a) Laches

b) Prerogative powers

c) Decisions of Superior Courts

d) Res Judicata

Public Law Remedies


1. Habeas Corpus

2. Declaration

3. Mandamus

4. Certiorari & Prohibition

5. Quo Warranto

6. Injunctions


1. Habeas Corpus

2. Declaration

3. Mandamus

4. Certiorari & Prohibition

5. Quo Warranto

6. Injunctions

Doctrine of Severability

Doctrine of Prospective Overruling

• Linkletter v Walker (US)

• PP v Dato Yap Peng

Constitutional Law 4

Education

Transcript of Constitutional Law 4