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Judicial Power

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.

Due to our colonial past, Singapore’s judiciary system has been significantly influenced by the British traditional Westminster model. However, recent developments have revealed prominent and distinct features in the meaning of “judicial power” in Singapore.

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 powerwas 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 was vested in courts and jurisdiction was conferred on 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 when its jurisdiction ends. Thus, in this case, a court is able to correct a miscarriage of justice at anytime.

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

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

Judicial power is separate from the Executive and the Legislature

The separation of powers doctrine 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. This is subjected to the condition that either branches do not usurp or interfere with the Judiciary’s exercise of its power. Directing the courts as to the manner and outcome of the exercise of their discretion is a form of usurpation or interference. In fact, 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.

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 the way over which 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. Thus, Parliamentary Sovereignty in the UK was created where Parliament is supreme over all other government institutions. Thereafter, the effect of which was to supersede and curb 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 UK’s 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. Instead, the Singapore Court of Appeal became the highest court of the land. The Government of Singapore <link> 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.”

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. The concept of parliamentary supremacy in the UK gives the courts no power to declare a Parliament Act unconstitutional, nor render them null and void. In contrast, Article 4 of the Singapore Constitution states the supremacy of the Singapore 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 stated in Article 93 of the Singapore Constitution.

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

1. Article 93 of the Constitutiongives the Judiciary judicial power.

Judicial power also has the same constitutional status with the legislative and executive branch, being restricted only by limitations set out in the Constitution.

1. This source of power is statutory in nature as it is “provided by any written law” as per Article 93 of the Constitution. 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 the judges hold and minimise instances in which biased judgments are made due extraneous influences. 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 stated 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 subject to the whims of the executive or legislative branches of 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, essentially compelling them to impose a minimum of 10 years’ imprisonment and 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 their agenda against the particular individuals involved in the case. 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.

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 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.