User:Sgconlaw/Judicial system of Singapore

The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court exercises both original and appellate criminal and civil jurisdiction.^[1] The Chief Justice, Judges of Appeal, Judicial Commissioners and High Court Judges are appointed by the President from candidates recommended by the Prime Minister. The prime minister must consult with the Chief Justice before recommending the judges. The current Chief Justice is Chan Sek Keong.

In 2006, the subordinate courts initiated a pilot scheme to appoint specialist judges to the Bench. These judges will come from the legal profession and academia and the scheme is aimed at bringing additional expertise to the subordinate courts as well as giving practitioners and academics an insight to the workings of the judiciary of Singapore.^[2]

Jury trials were abolished in 1969 and the Criminal Procedure Code was amended in 1992 to allow for trials of capital offences to be heard before a single judge.^[3] The Court of Appeal is Singapore's final court of appeal after the right of appeal to the Judicial Committee of the Privy Council in London was abolished in April 1994. The president has the power to grant pardons on the advice of the cabinet.^[4]

Singapore practices the common law legal system, where the decisions of higher courts constitute binding precedent upon courts of equal or lower status within their jurisdiction, as opposed to the civil law legal system in the continental Europe. The current criminal code was preceded by the Indian Penal Code which was adopted when Singapore was a crown colony.

In 2004, the US Department of State claimed that although Singapore's judicial system provides citizens with an efficient judicial process, the judiciary is largely compliant and the government often use defamation suits or the threat of such actions to discourage public criticism and intimidate the press.^[5]

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Judicial power

Gavel

Judicial power is often seen as a nebulous concept of which no clear definition been provided for in the written laws of Singapore. The specific limits or extent of such powers have consequently not been clearly expressed and has led to much debate and confusion.

Article 93 of the Constitution of Singapore expressly vests judicial power in the Judiciary:

The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.

This constrains the exercise of judicial power to that of the Supreme Court and the Subordinate Courts as listed in s 3 of the Subordinate Courts Act.

Though the scope of judicial power is not explicitly provided, an examination of both local and Commonwealth cases have revealed the circumscribed limits of judicial powers and the varying jurisdictions of the different courts in Singapore. The Supreme Courts and the Subordinate Courts of Singapore each possess different jurisdictions and therefore exercise different aspects of judicial powers.

Although Article 93 clearly vests judicial powers in the Judiciary, there have been boundary clashes between the Legislature, Executive and Judiciary. This usually manifests itself in a form of an unlawful interference or usurpation of judicial power by the Legislature or the Executive. However, there are some instances where such boundary clashes may not be an impeachment of judicial power.

Definition of judicial power

The only statutory definition relating to judicial power in the Constitution is that it is vested in the Judiciary. This can also be seen from Singapore's scheme of the Constitution.

In Hinds v. The Queen, it was held that the distribution and exercise of judicial power should follow the courts that previously existed prior to possible amendments or reformations of the Constitution. In fact, this proposition has been recognised in Singapore. Singapore courts have been exercising judicial functions for about 150 years prior to the introduction of the Singapore Constitution, setting precedence for the exercise and distribution of judicial power.

The classic definition of judicial power was set out in the Australian case of Huddart Parker Pty Ltd v Moorehead. As per Griffth CJ, judicial power is one in 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”. Essentially, courts exercise judicial power through recognising and establishing the existence of certain legal relationships in society.

Implied meaning of “judicial power”

Judicial power is vested in the courts

In the High Court judgment of Lock Han Chng Jonathon v. Goh Jessiline, it was held that judicial power is vested in courts, as opposed to judges. Thus, the powers of a judge are in connection with the court he purports to sit in.

In addition, this judicial power is exercisable only where the court has jurisdiction. In relation to a criminal appeal, the Subordinate Courts Judicature Act (“SCJA”) does not expressly state the end of its jurisdiction. Thus, in this case, a court is able to correct a miscarriage of justice at any instance.

Furthermore, judicial power is exercised independently from the Legislature and the Executive. This can be implied from Article 95 to 98 of the Constitution where the methods of appointment and security of tenure of the Judiciary ensures its independence.

This is reinforced by the distinct chapters separating the Executive, Legislature and Judiciary in the Constitution. On a side note, this separation of powers is based on the rule of law.

Judicial power is separate from the Executive and the Legislature

The doctrine of the separation of powers in Singapore is not a strict one. The Executive and the Legislature are not precluded from having a role in the imposition and administration of punishment. There has been obiter that the sentencing function of the courts is precluded from principle of separation of powers as it is a function delegated by the legislative to the judicial branch i.e. it is not inherent to the judicial power. This is subjected to the condition that either branches do not usurp or interfere with the Judiciary’s exercise of its power. An instance of an usurpation or interference of judicial power is when either branch directs the courts as to the manner and outcome of the exercise of their discretion.

Nevertheless, upholding the doctrine of the separation of powers is one of the conditions for the effective exercise of judicial power, as further explained in the sections below.

Legal development of “judicial power”

Evolution of UK’s judicial power

Before the Act of Settlement 1700, the UK Monarch controlled how judicial powers were used in the courts. This led to the influence of various Monarchs on judges’ rulings. After the enactment of the Act of Settlement, royal powers were removed from the Monarchs and judges were now able to hold the office on good conduct and not at royal pleasure. This created judicial independence in the UK courts.

The Acts of Union was enacted in 1707 where the Scottish and English Parliament united to form the Parliament of Great Britain. Thereafter, Parliamentary Sovereignty was developed, where Parliament is supreme over all other government institutions. This had the effect of superseding and curbing the powers of the Judiciary.

Singapore’s legal development of judicial power

The development of judicial power in Singapore is largely influenced by English law. Singapore has adopted the traditional Westminster model of constitutional government under which judicial power is vested in the judiciary. However, over the years, Singapore has made significant departures from the Westminster model.

Departures from the Westminster model of judicial powers

Abolition of the Privy Council as the final Court of Appeal

8th of August 1994, the Privy Council ceased to be Singapore’s highest court of appeal. Thereafter, the Singapore Court of Appeal became the highest court of the land. The Singapore Government recognised that “the political, social and economic circumstances of Singapore have changed enormously since Singapore became an independent and sovereign republic. The development of our law should reflect these changes and the fundamental values of Singapore society.” and thus decided to abolish the Privy Council as Singapore’s final Court of Appeal

Hence, the Singapore courts are now no longer bound by the UK courts and are free to vest judicial powers in its’ own Supreme Court.

Supremacy of the Singapore constitution as opposed to the UK

Singapore’s constitutional model vis-à-vis its judicial power can be distinguished from the traditional Westminster model in that its Constitution is supreme. In the UK, parliamentary supremacy in the UK disallows the courts from declaring a Parliament Act unconstitutional, and are unable to render them null and void.

In contrast, Article 4 of the Singapore Constitution expressly states the supremacy of the Constitution:

“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.”

Through Article 4, Singapore Courts have the judicial power to declare a Parliament Act invalid due to inconsistencies with the Singapore Constitution.

Exclusiveness of judicial power

In the UK Westminster model, judicial power has been vested in its courts by common law or statute.

On the other hand, in Singapore, judicial power is vested in our Supreme Court and “such subordinate courts as may be provided by any written law for the time in force”.

As per above, the Constitution provides for two different sources of judicial power. gives the Judiciary judicial power.

Firstly, as per the Constitution, Article 93 gives the Judiciary judicial power. The Judiciary enjoys the same constitutional status with the legislative and executive power, its power being restricted to only to the limitations set out in the Singapore Constitution.

The second source of power is statutory in nature since it is “provided by any written law”.This applies to the courts subordinate to the Supreme Court.

Conditions for the effective exercise of judicial power

Judicial independence

Main article: Judicial independence in Singapore

Judicial independence preserves the distinct process by which instances of biased judgments due to extraneous influences are minimised. Ideally, the Judiciary should enjoy substantive and personal independence to sustain the rule of law. If the Judiciary is unable to independently review the actions of other government branches, it will undermine the legitimacy of the Government.

One of the essential components of judicial independence is the separation of powers.

Separation of powers

In Liyanage v. The Queen, the House of Lords highlighted the inappropriateness of sharing judicial power with the Executive or the Legislature. Without institutional and individual independence, courts and judges who operate them cannot properly fulfill their important roles. Courts which are subjected to the whims of the executive or legislative branches of the Government cannot protect society from majority government excesses.

This was especially so in Liyanage where the legislative enactments involved had the effect of removing the court’s sentencing discretion, compelling them to impose a minimum of 10 years’ imprisonment and the confiscation of property. The Lords recognised that the true purpose and nature of these enactments were to ensure that the judges acted in a manner that was consistent with the political agenda against the particular individuals involved. In the following quote, Lord Pearce summarised the effect and significance of not obeying the doctrine of the separation of powers:

What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution.

Significance of judicial power

The dynamism of society today has propelled the need for judicial power to have the right balance of flexibility and certainty in the application of our laws.

Safeguarding liberties and democracy

The Judiciary has the power to safeguard individual liberties by upholding the sections in Part IV of the Constitution.

1. The liberty of the person
2. The prohibition of slavery and forced labour
3. Protection against retrospective criminal laws and repeated trials
4. Equal protection
5. Prohibition of banishment and freedom of movement
6. Freedom of speech, assembly and association
7. Freedom of religion
8. Rights in respect of education.

The courts’ discretion also serves as a safeguard to individual liberties and rights. By adjusting and limiting the law through legislative interpretation, fair treatment and respect to individuals is ensured.

In addition, it has been argued that democracy is not merely about majoritarianism. Rather, democracy is concerned with imposing limits on the majority to uphold individual and minority rights. In this light, judicial power is a vehicle that drives democracy in a society, by ensuring basic fairness and equality in the operation of its laws.

The development of common law

There has been fierce debate and criticisms on the expansion of judge-made law in common law systems. However, one should not overlook the role of judicial power in developing and changing the law, to meet the changing needs of society. In the realm of the common law, legislation is often broad, general and vague. It is thus the role of the judiciary to inject meaning into the legislature to reflect the needs and wants of society.

The legislature paints with the broad brush of general policy; the courts by contrast are the specialists in how the law actually affects the lives of men, women and children.

Hence, judicial power plays a heightened role in the development of the common law, the interpretation of statutes, constitutional adjudication and rights adjudication.

Boundary Clash: Interaction of Judicial, Legislative and Executive Powers in Singapore

Judicial power is exclusively vested in the Judiciary and cannot be exercised by other constitutional organs. Any attempts by the Legislature or the Executive to usurp the Judiciary’s power would be a violation of the principle of separation of powers. The enforcement of this principle ensures that the Judiciary is able to exert its power without having to defer to the other constitutional organs and this affords the Judiciary “a degree of independence from the other two branches of government”. However, there are instances in which the Legislature and Executive encroach into the powers of the Judiciary.

Legislature and Judicial Power

The Legislature intrudes upon judicial power in two instances:

• When a piece of legislation purports to create a new court with Supreme Court powers; and
• When the Legislature seeks to truncate the jurisdiction of the Supreme Court below the threshold of its original and appellate jurisdiction.

Creation of New Courts with Supreme Court Powers

In the case of Hinds v. The Queen, the Jamaican government enacted the Gun Court Act 1974 which purported to create a new “court” to try firearm offences. The court subsequently found that the Gun Court Act was unconstitutional as it attempted to transfer the power to determine the severity of the punishment to be inflicted to a specific class of offenders from the Jamaican Judiciary to a review board. Since a majority of the members of this review board were not qualified to exercise judicial power, the Privy Council held that the review board was not a court and hence could not exercise judicial power.

However, the viability of legislation to establish a new court with Supreme Court powers is not pre-emptively precluded. In order for a piece of legislation to establish a court with Supreme Court jurisdiction, there needs to be a substantive examination of the composition and powers of the new court. The members of this court must enjoy the same level of constitutional protection as the higher judiciary. This is based on the principle that Supreme Court level powers and jurisdiction cannot be transferred to a body, which does not enjoy the same protection as Supreme Court judges. Such protection is essential to ensure that bodies wielding judicial power would not be subject to executive control.

Truncation of Supreme Court Jurisdiction

A key distinctive feature of the Supreme Court is its original and appellate jurisdiction. Such jurisdiction is vested only in the Supreme Court and not in the Subordinate Courts. As a result, the Legislature is not empowered to truncate the jurisdiction of a Supreme Court below its established threshold, as this would result in a “false description” of the “Supreme Court”. Similarly, a court consisting of members of the lower judiciary should not be empowered with all jurisdictions exercisable by the Supreme Court. This is because doing so would deprive citizens of the safeguard that their cases would be tried by a court which consists of judges who enjoy judicial independence from the influence of the other branches of the government by way of Supreme Court judges protection which includes security of tenure.

Other Instances Legislative Power Clashing with Judicial Power

Other instances of the Legislature impeaching on the courts’ judicial power arise when the Legislature promulgates an Act which allows it to unjustifiably assume judicial power in determining the punishment for a select group of individuals. In the case of Liyanage v. The Queen, the Parliament of Ceylon passed the Criminal Law (Special Provisions) Act, No. 1 of 1962, to mete out a deterrent punishment to 11 appellants who were involved in an abortive coup. The Act was made to have a retrospective effect and was directed at the coup conspirators. The court held that the impugned Act involved usurpation and infringement by the Legislature of judicial powers as the legislation that was directed against selected individuals was not law but rather an invalid exercise of judicial power by the Legislature.

Clarification on Sentencing Power

The Singapore High Courts recently clarified the issue of whether sentencing power can only be exclusively exercised by the Judiciary under the ambit of judicial power. In Mohammad Faizal bin Sabtu v. PP, Chan CJ clarified that while the punishment of offenders is part of the judicial power, prescribing the kind and range of punishments to be imposed for a specific offence is beyond the power of the judiciary.

After considering certain cases, he concluded that there exists little historical and doctrinal support for the proposition that the sentencing power – i.e., the discretion to determine the measure of punishment to impose on an offender – is essentially and/or exclusively a judicial power. Chan CJ then proceeded on with a historical treatment of the sentencing power, and ultimately concluded that it was the Legislature that, through statute, vested the courts with the discretion to punish offenders in accordance with the range of sentences prescribed by the Legislature. This means that the court’s sentencing function must be exercised in accordance with what is prescribed by the Legislature. Therefore, the legislative prescription of factors for our courts to take into account in sentencing offenders cannot and does not intrude into the judicial power.

The Executive and Judicial Power

The Executive of Singapore comprises the President, Prime Minister and the Cabinet. Similar to the Legislature, the Executive has, in certain circumstances, encroached into the judicial power of the Judiciary.

Clemency Powers Under Article 22P

Pursuant to Article 22P of the Constitution, the President is vested with clemency powers, which he, on occasion can exercise on the advice of the Cabinet. Therefore, the President can pardon a convicted individual who has been administered a sentence by the courts. It is important to note however that such powers can only be exercised on advice of the Cabinet.

Prima facie, this would seem like an unlawful usurpation of judicial power, as the President is interfering with the sentencing powers of the Judiciary. However, it has been argued that such pardoning powers are not an exercise of judicial powers and therefore does not infringe on the principle of separation of powers. Clemency power is an “act of grace” belonging to the Executive, as mercy begins where legal rights end. Therefore, although prima facie, the President’s clemency powers may interfere with judicial powers, both should be considered as disparate entities.

Legislature Affecting Sentencing Function of Judiciary

Legislation that purports to give the Executive powers which interfere with the sentencing function of the Judiciary, has been held to be unconstitutional by other Commonwealth jurisdictions due to wrongful exercise of judicial power. This point was discussed by by Chief Justice Chan Sek Keong in the case of Mohammad Faizal bin Sabtu, where he looked to such Commonwealth cases to determine whether there was any wrongful usurpation of judicial power by the Executive in the case at hand. He laid out three classifications of cases involving interference of the Executive in the Judiciary's sentencing function and illustrated its applicability by referencing 3 Commonwealth cases.

Generally, such cases can be divided into 3 classes:

• Legislation which enabled the Executive to actually select the sentence to be imposed in a particular case after the accused person was convicted by a court of law;
• Legislation which enabled the Executive to make administrative decisions directly related to the charges brought against a particular accused person, and which had impact on the actual sentence; and
• Legislation which enabled the Executive to make administrative decisions which were not directly related to any charges brought against a particular accused person, but which had an impact on the actual sentence eventually imposed by a court of law pursuant to legislative directions that the Executive’s administrative decisions were a condition which eliminated the court’s sentencing discretion.

Legislation that Enables the Executive to Select Sentence

An invalid trespass by the Executive into the sentencing function of the Judiciary is apparent in cases where legislation empowers the Executive to select the sentence that is to be meted out. In the case of Deaton, the impugned legislation enabled the Revenue Commissioners of Ireland to choose between two punishments that were to be imposed by the courts. The Irish Supreme Court held that this was in conflict with the principle of separation of powers as it left the determination of penalties to the Executive instead of the courts. Therefore this was an unjustifiable infringement of judicial power.

Legislation that Enables the Executive to Make Administrative Decisions Affecting the Eventual Sentence

In the case of Muktar Ali, the impugned legislation gave the Director of Prosecutions of Mauritius (“DPP”) the discretion to prosecute an accused charged for drug trafficking in either one of two courts of which conviction in the latter would lead to the imposition of the death penalty. The Privy Council affirmed that prosecutorial discretion was wide enough to allow the DPP to decide whether a person was to be charged under one offence or another. However, this discretion did not extend to allow the DPP to select the court of trial as it would be tantamount to allowing the DPP to select the sentence that would be imposed on the accused if he was convicted.

Legislation that Enables the Executive to Make Administrative Decisions Not Directly Relating to the Charge

A case which falls under this category is that of Totani, where the impugned legislation served to compel the court to impose a control order against individuals who were members of organisations which the Executive declared to be a risk to public safety and order. The orders were to be administered despite the fact that these individuals were not convicted of any offence by a court of law. The High Court of Australia declared the piece of legislation unconstitutional. It was found that in Totani, the Australian Legislature disguised what was in substance an Executive decision as a Judicial decision.

Other Instances Where Exercise of Executive Powers Clash with Judicial Powers

In the case of Salwant Singh s/o Amer Singh, the Singapore government had entered into an agreement with India where it promised that if Singh was extradited and tried in Singapore for his credit fraud offence, he would only receive a maximum sentence of seven years imprisonment. The judge in the case held that this interfered with the judicial discretion in sentencing, which is part of judicial power. Therefore, the agreement was invalid and declared unconstitutional.

Judicial power and the jurisdiction of the Courts

Overview

There is a distinction between judicial power and the jurisdiction of the courts. The “jurisdiction of a court is its authority, however derived, to hear and determine a dispute that is brought before it. The powers of a court constitute its capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party to the dispute.” In other words, jurisdiction is a “precondition” of the lawful exercise of a particular power.

The Constitution does not expressly identify the type of jurisdiction to be accorded to the Supreme Court. Hence, references to the Supreme Court of Judicature Act (“SCJA”), common law and cases are necessary to delineate the boundaries of the court’s jurisdiction. The jurisdiction of the High Court is derived from statute, as well as the inherent jurisdiction that historically existed in the common law. On the other hand, the Court of Appeal is a creature of statute, and thus only has the jurisdiction conferred upon by its parent statute, i.e. the SCJA.

The Privy Council in Hinds identified three kinds of jurisdiction characteristic of a Supreme Court where appellate jurisdiction was elsewhere vested (i.e. the High Court): unlimited original jurisdiction in all substantial civil cases; unlimited original jurisdiction over all serious criminal offences; and supervisory jurisdiction over the proceedings of inferior court, originating in the prerogative writs of mandamus, certiorari and prohibition. The original jurisdiction of the court refers to the power of the court to hear cases for the first time. In Lee Lee Cheng v. Seow Peng Kwang, the Malaysian Court of Appeal clarified that the unlimited jurisdiction of the Supreme Court refers to the authority to exercise such judicial power as is given by law in any type of matter whatsoever in which the law authorizes or requires judicial power to be exercised.

In addition to the general classifications mentioned in Hinds, the jurisdiction of the High Court can be further divided into the following categories.

Inherent Jurisdiction

The inherent jurisdiction of the Supreme Court is defined as “a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” This jurisdiction is not derived from any statute or rule of law, but from the very nature of the court as a superior court of law.

The inherent jurisdiction of the court exerts control over process, persons and the powers of inferior courts and tribunals. It also enables the courts to enforce their rules of practice and to prevent the abuse of process. This was exactly what the court did in ‘’Chee Siok Chin v. Minister for Home Affairs’’, where the court maintained that it had inherent jurisdiction to strike out an action on the basis that the proceedings are frivolous, vexatious or an abuse of the court process.

The court’s inherent jurisdiction forms the foundation and basis on which certain other jurisdictions stand. As will be further expounded on below, the review, constitutional judicial review as well as supervisory jurisdictions of the court are inherent in the High Court by virtue of its status.

Review Jurisdiction

The review jurisdiction of the Supreme Court refers to the power it has to reconsider its own previous decision. This is not to be confused with its judicial review jurisdiction as mentioned below.

In In re St Nazaire Company, Sir George Jessel MR held that the English Courts of Judicature Act gave the High Court judges this review jurisdiction. He then went on to explain that historically, the right to rehear his own decisions, as well as decisions of a preceding Lord Chancellor, was vested in the Lord Chancellor of the Chancery Court. This right was later passed by statute to the Master of the Rolls and the Vice-Chancellor, such that they now had the right to rehear their own as well as their predecessor’s decisions. This review jurisdiction “existed down to the time of the passing of the Judicature Act”.

The position in Singapore differs from the UK, in that there are no express provisions in our SCJA permitting the Supreme Court to review its previous decisions. However, in Yong Vui Kong v. PP, the Court of Appeal held that “in circumstances where there is sufficient material on which the court can say that there has been a miscarriage of justice”, it could review its own decision to correct such mistakes. This was notwithstanding the fact that the powers of the Court of Appeal are statutory in nature and are conferred by the SCJA, which was silent on this point. Thus, the power to review its own decisions can be classified as a form of inherent jurisdiction exercised by the courts.

Constitutional Judicial Review Jurisdiction

The judicial review jurisdiction refers to the power of the court to decide on the constitutionality of a statute. Article 4 of the Constitution provides that any legislation inconsistent with the Constitution shall be void.

However, Article 4 and the rest of the Constitution do not specifically provide that the courts have the authority to make pronouncements on the constitutionality of statutes. Nevertheless, this authority is to be found in the inherent power of the court, as is asserted by the courts themselves.

In the seminal case of Marbury v. Madison, John Marshall CJ famously declared, “to hold that the court does not have the power to examine the constitutionality of a legislation would be a proposition ‘too extravagant to be maintained’”. He stated that it was the province and duty of the judiciary to say what the law is, and to expound on and interpret the law. If both the law and the Constitution apply to a case, the court must decide which of these conflicting rules shall govern. Since the constitution is superior to any ordinary act of Parliament, the Constitution must apply.

The Singapore courts have also consistently exercised their jurisdiction to review legislation for their constitutionality. In Chan Hiang Leng Colin v. PP, the court stated that it had “the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.” However, it bears noting that thus far, no laws in Singapore have been voided based on their constitutionality.

General Supervisory and Revisionary Jurisdiction

S 27(1) of the SCJA provides that “[i]n addition to the powers conferred on the High Court by this Act or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts.” While these two bases of jurisdiction were mentioned collectively, they are in fact two separate and distinct, albeit related bases of jurisdiction, and ought not to be conflated.

Supervisory jurisdiction

The supervisory jurisdiction of the High Court is an inherent jurisdiction, which historically existed at common law and is still very much a part of our judicial system today. It refers to the power of the High Court to review the proceedings and decisions of inferior courts and tribunals or other public bodies discharging public functions. In some cases, the High Court can also review the actions of private bodies exercising functions of public importance such as licensing. This power is exercised at the instance of an appellant making an application to the High Court.

In exercising its supervisory jurisdiction, the court is only concerned with the legality of the decision-making process, and not with the merits of the case. Broadly speaking, the legality of a decision can be challenged on the grounds of illegality, irrationality and procedural impropriety. However, the court cannot substitute its decisions for the decisions of the tribunal. Instead, the public law remedies of prerogative orders – mandatory orders, quashing orders, prohibiting orders or an order for review of detention – as well as the private law remedy of a declaration, may be granted. Nevertheless, these remedies are discretionary in nature, which means that a successful claimant has no absolute right to a remedy.

The supervisory jurisdiction of the court over administrative tribunals may sometimes be referred to as judicial review of administrative acts.

Revisionary jurisdiction

The revisionary jurisdiction of the High Court refers to its statutory power to call for and examine the records of subordinate courts, both over criminal and civil proceedings, ‘for the purpose of satisfying itself as to the correctness, legality or propriety of any decision recorded or passed, and as to the regularity of any proceedings of any such subordinate court”. This power might be exercised both at the instance of the High Court and at the instance of an interested party. However, where an appeal lies from any decision in any civil matter, and no appeal is brought, the aggrieved party is barred from applying for revision. This is the same for criminal proceedings, subject to two exceptions: where the application is made against a failure by a court to impose the mandatory minimum sentence, or against a sentence imposed by a court which the court is not competent to impose. In such cases, the aggrieved party may apply for the High Court to exercise its revisionary power.

In exercising its revisionary jurisdiction, the High Court can examine both errors of fact and law. In civil proceedings, the High Court may give any order, including directing a new trial, to ensure that substantial justice is done. In criminal proceedings, the High Court may direct the lower court to make further inquiry into a dismissed complaint or into the case of an accused who has been discharged, but it cannot convert a finding of acquittal into one of conviction.

Additionally, there is no right of appeal from revisions in civil proceedings. This is because the Court of Appeal’s appellate civil jurisdiction is confined to only proceedings arising from the original or appellate jurisdiction of the High Court. There is also no right of appeal from revisions in criminal proceedings. However, parties may apply to the Court of Appeal for leave to refer any question of law of public interest which has arisen in that proceeding and which has affected the case, to the Court of Appeal.

References

• Constitution of the Republic of Singapore (1999 Reprint).
• Mohammad bin Sabtu v. Public Prosecutor [2012] SGHC 163 (Singapore)
• Moses Hinds v. The Queen [1977] UKPC 1, [1977] A.C 195, Privy Council
• Thio, Li-ann (2012), A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 356–359, ISBN 978-981-07-1516-8.
• John Francis Douglas Liyanage and others REASONS v The Queen(Ceylon) [1965] U.K.P.C 39, [1965] U.K.P.C 39.
• Supreme Court of Judicature Act (Cap. 322, 2007 Rev. Ed.) ("SCJA")
• Beverely Mclachlin, Judicial power and democracy, 12 S.A.c.L.J. 311
• Yong Vui Kong v Public Prosecutor [2010] 2 S.L.R 192

Judicial independence

Main article: Judicial independence in Singapore

Singapore has a reputation for fairness and impartiality in commercial law, and is a popular jurisdiction for arbitration and trial in South-East Asia. The Canadian case of Oakwell Engineering v. Enernorth Industries called into question this impartiality and raised the issue of whether the judgments of Singaporean courts are enforceable outside Singapore, but claims of links between the judiciary, business and the executive arm in Singapore which were alleged to suggest a real risk of judicial bias were dismissed in appeals to the Court of Appeal for Ontario and Canadian Supreme Court.

The United States Department of State claims the President of Singapore and the Minister for Home Affairs have substantial de facto judicial power, leading "to a perception that the judiciary reflected the views of the ruling party in politically sensitive cases." In addition, Singapore's "judicial officials, especially the Supreme Court, have close ties to the ruling party and its leaders". The President appoints judges to the Supreme Court on the recommendation of the Prime Minister and in consultation with the Chief Justice. The President also appoints subordinate court judges on the recommendation of the Chief Justice.

Government leaders historically have used court proceedings, in particular defamation suits, against political opponents and critics, leading to a perception that the judiciary reflected the views of the ruling party in politically sensitive cases. Notable cases include those against opposition leaders J. B. Jeyaretnam and Chee Soon Juan. Chief Justice Chan Sek Keong, in his 2009 keynote speech to the New York State Bar Association International Section, said: "Commonwealth judiciaries like ours have a common tradition that judges do not defend their judgments in public. They let their judgments and the reasons for their decisions speak for themselves. This is where I will leave this particular issue."

Ranking

The 14 September 2008 Political and Economic Risk Consultancy (PERC) survey reported Hong Kong and Singapore have the best judicial systems in Asia, with Indonesia and Vietnam the worst: Hong Kong's judicial system scored 1.45 on the scale (zero representing the best performance and 10 the worst); Singapore with a grade of 1.92, followed by Japan (3.50), South Korea (4.62), Taiwan (4.93), the Philippines (6.10), Malaysia (6.47), India (6.50), Thailand (7.00), China (7.25), Vietnam's (8.10) and Indonesia (8.26). In 2010, the Rule of Law Index by the World Justice Project ranked Singapore number one for access to civil justice in the high-income countries group.

See also

• High Court of Singapore
• Lawyers in Singapore
• Judicial officers of the Republic of Singapore
• Supreme Court of Singapore

Notes

1. ^ "Supreme Court of Judiciature Act". Attorney-General's Chambers of Singapore website. Retrieved June 9, =2005. {{cite web}}: Check date values in: |accessdate= (help)
2. ^ "History". Supreme Court of Singapore website. Retrieved June 9, 2005.
3. ^ "Dean of NUS Law Faculty Appointed Specialist Judge". wwlegal.com. Retrieved December 15, 2006.
4. ^ "The President". Attorney-General's Chambers of Singapore website. Retrieved January 29, 2005.
5. ^ "Country Reports on Human Rights Practices - Singapore". U.S. Department of State website. Retrieved May 17, 2005.

Further reading

• Blöchlinger, Karen (2000), "Primus Inter Pares: Is the Singapore Judiciary First among Equals?", Pacific Rim Law and Policy Journal, 9: 591.
• Ng, Peng Hong (1995), "Judicial Reform in Singapore: Reducing Backlogs and Court Delays", in Rowat, Malcolm; Malik, Waleed H.; Dakolias, Maria, eds. (eds.), Judicial Reform in Latin America and the Caribbean: Proceedings of a World Bank Conference [World Bank Technical Paper No. 280], Washington, D.C.: International Bank for Reconstruction and Development/World Bank, pp. 127–133, ISBN 978-0-8213-3206-1 {{citation}}: |editor3-first= has generic name (help)CS1 maint: multiple names: editors list (link).
• Worthington, Ross (2001), "Between Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore", Journal of Law and Society, 28: 490, doi:10.1111/1467-6478.00200.