CHAN SEK KEONG, CHIEF JUSTICE OF SINGAPORE
Extract from "Securing and Maintaining the Independence of the Court in Judicial Proceedings" published in the Singapore Academy of Law Journal, March 2010. To download the full article from the journal's website, click here.
In a democracy with a form of representative government (based on the doctrine of separation of powers), the Judiciary is one of three arms of government, co-equal in status, and vested with the power, among others, to check the Legislature and the Executive in their exercise of powers vested in them by law and the constitution of the State. Its other primary function is to adjudicate disputes between people and disputes between the people and the State or agencies of the State. The Judiciary acts as an impartial referee to decide what conduct is permissible or not permissible under applicable rules of conduct, whether the rules have been infringed or not infringed, and to provide the remedies for such infringements. To fulfil these functions, the Judiciary has to be independent of the other two arms of government.
A Judiciary that is not independent would not be able to fulfil such a role, and would provide a weak foundation for democracy and its associated attribute (ie, the rule of law) to flourish. Conversely, the Judiciary requires the existence of the rule of law for continuous independence. There cannot be the rule of law without an independent Judiciary, and vice versa, but with both, there will be security, law and order, and stability, which are requisites for progress and the protection of political and civil rights.
The respect and support of the public is crucial for the independence of the Judiciary as an institution. In a democratic society, the respect and support of the public is, in fact, one of the best safeguards for the independence of the Judiciary as an institution. Conversely, a lack of respect and support from the public for the Judiciary and its functions can be detrimental to its independence. In this regard, any perception of a lack of respect from the Judiciary’s co-equal institutions, viz, the Executive and the Legislature, could be expected to trickle down to all state bodies and the public, leading to a loss of public confidence in the Judiciary, and, ultimately, a call for the limiting of the independence of the Judiciary. Thus, Art 99 of the Singapore Constitution provides that the conduct of a Supreme Court judge cannot be discussed in Parliament “except on a substantive motion of which notice has been given by not less than one-quarter of the total number of the Members of Parliament”. For acts or words amounting to contempt of the court, the law provides that every person can be punished, from the President, the Prime Minister, down to the man in the street.
However, mechanisms such as the doctrine of contempt should not be used to stifle fair and reasonable criticism of the work of the Judiciary and also judicial decisions. The right to criticise is only part of the freedom of speech and expression the citizen enjoys in a democracy and its exercise will encourage or ensure that judges are independent in their decision-making. It is a form of public review similar to judicial review of executive acts, where judges look over the shoulders of the Executive to correct its mistakes. Hence, the doctrine of judicial independence calls for the judicious use of the contempt power, and the final appellate court has a responsibility to ensure a judicial restraint in the use of this power. Fair and objective criticism of judicial decisions will instil accountability and greater discipline in decision-making. If no one is allowed to judge judges, there could be lawless courts and irresponsible judging. But criticism of judgments should not lead to the denigration of judges.