Friday 17 February 2012

Judges do justice, not politics: CJ Chan

Judges here do not let political considerations influence their decisions, says Chief Justice
By Selina Lum, The Straits Times, 16 Feb 2012

CHIEF Justice Chan Sek Keong yesterday responded to critics who charge that judges here make decisions that tend to favour the Government.

He said the Singapore courts have never shirked from the judiciary's role of checking on legislative and executive acts when issues of illegality are raised.

'The judiciary is aware of its responsibilities as the third arm of the state. Whatever their personal political persuasions, judges do not let political considerations influence their decisions,' he said.

'Judges do justice, not politics,' he said, adding that it was not in the national interest for the Government to have a subservient judiciary.

CJ Chan was speaking on the second day of the inaugural Rule of Law Symposium held at the Supreme Court auditorium, in a lecture titled The Courts And The Rule Of Law In Singapore.

He noted that judges do not defend themselves at public forums as their judgments speak for themselves. But he wanted to set out the background to some judgments on constitutional law, which he felt had not been criticised fairly because critics may not be aware of how the cases were argued in court.

He cited numerous cases, including the contempt of court cases of American academic Christopher Lingle and British author Alan Shadrake, and addressed the criticism of court rulings regarding the judicial review of the Internal Security Act (ISA).

CJ Chan said it was indeed the function of academics to criticise if a judge had decided a case wrongly as a result of ignorance of the law, or had applied the wrong law, or made wrong findings of fact.

But it is an entirely different thing to accuse the courts of having the political view of the Government, and allowing these views to colour their decisions in cases involving the Government, he said.

He cited a High Court decision - to dismiss an application by a prisoner challenging his detention - that has been consistently criticised as being wrong for ignoring the Constitution.

CJ Chan said it was not fair criticism as the prisoner's lawyer had not raised constitutional arguments. If the correct argument had been made, the judge may well have decided differently.

Turning to the ISA, which gives the Government powers to detain people on national security grounds, he referred to a case in which the Court of Appeal held that a detention order under the ISA was subject to judicial review.

Following this, Parliament amended the Constitution to restrict judicial review of national security cases.

The legality of these changes was challenged by a detainee, but the courts held that the amendments had not destroyed the basic structure of the Constitution.

Academics have criticised this ruling for being 'anaemic' in stating that the rule of law is the rule as stipulated by Parliament. But CJ Chan said this was unfair because Parliament did not simply make a new rule; unless the amendments were declared unconstitutional, they must be followed.

Discussing contempt of court, he noted that since 1991, the Singapore courts have been criticised for wrongly applying the 'inherent tendency' test rather than the 'real risk' test in such cases.

In 2010, in the case of Mr Shadrake, who was found to have scandalised the judiciary in his book on the death penalty, the High Court ruled that the 'real risk' test was the correct test. This was affirmed by the Court of Appeal.

Yet, two articles in foreign law journals after the case continued to castigate the courts for applying the wrong 'inherent tendency' test, said CJ Chan.

This suggests that some critics continue to look for 'criticisable' decisions to criticise even though they no longer represent the current law, he added.

He also discussed the case of Dr Lingle, whose article in the International Herald Tribune in 1994 talked of a 'compliant judiciary' in an unnamed Asian country. Dr Lingle, who was cited for contempt together with the newspaper, left Singapore and did not defend the case.

CJ Chan referred to an article that said the court went to great lengths to make inferences of contempt. This, he said, was unwarranted as even the newspaper had accepted that the words 'compliant judiciary' had scandalised the courts.

Besides CJ Chan, the symposium heard lectures by Professor Brian Z. Tamanaha from Washington University and Professor Joseph Weiler from New York University.

There were also four panel discussions, chaired respectively by Attorney-General Sundaresh Menon; Judge of Appeal V.K. Rajah; Professor Kishore Mahbubani, dean of the Lee Kuan Yew School of Public Policy; and Professor Simon Chesterman, dean of the National University of Singapore's law faculty.

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