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Judicial Power is Undefined in the Constitution
Judicial power is not legally defined in the Singapore constitution. Notwithstanding this lack of definition, it can be seen from the scheme of the Constitution that judicial power is still vested in the judiciary.

The only statutory definition available in the Constitution only states the vesting of judicial power on certain Courts in Singapore, leaving “judicial power” undefined. The landmark case of Hinds v The Queen did acknowledge that the Constitution itself is “silent” as to the distribution of the judicial power. In that instance, it was held that judicial power will continue to be distributed and exercised by the courts that were already in existence prior to possible amendments or reformations of the Constitution. In fact, this proposition has been recognised by the Singapore courts that Singapore courts had been exercising judicial functions for about 150 years prior to the introduction of the Singapore Constitution, which has set the precedence for does the exercise of judicial powers entail.

The “classic definition of judicial power”. was defined in an Australian case of by Griffth CJ that as: “the 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”

Implied meaning in “judicial power”
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. This is then reinforced by the distinctions between various powers in the Constitution, and that this separation of powers is based on the rule of law.

However, the separation of powers doctrine in Singapore is not a strict one. It has been clarified that the Executive and the Legislature is not precluded from having a role in the imposition and administration of punishment so long as its role in this regard does not usurp or interfere with the Judiciary’s exercise of the judicial power. This usurpation or interference involves directing the courts as to the manner and outcome of the exercise of their discretion. 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, further explained in the following section.

Evolution of the United Kingdom’s judicial power
Before the Act of Settlement 1700, the UK monarch controlled the way judicial powers were being used in the courts, leading to various monarchs influencing a judge’s rulings. After the enactment of the Act of Settlement, royal power was then removed from the Monarchs and judges were now able to hold the office on good conduct and not at royal pleasure, leading to judicial independence.

The Acts of Union was enacted in 1707, where the Scottish and English Parliament united to form the Parliament of Great Britain. From then onwards, the concept of Parliamentary Supremacy came through to supersede the powers of the Judiciary, thus creating Parliamentary Sovereignty in the UK where Parliament is supreme over all other government institutions, not only the judiciary but the legislature and executive as well. Parliamentary Sovereignty then curbs the judicial powers of the UK courts.

Singapore’s legal development of judicial power
The main influence on the Singapore legal system would be the English law. Singapore has adopted the United Kingdom’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.

Abolition of the Privy Council as the final court of appeal
From August 8 1994 onwards, the Privy Council ceased to be Singapore’s highest Court of Appeal From August 8 1994, Singapore’s highest court would be the Singapore Court of Appeal. The reason for such a decision would be because the government recognized “recognize 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.”

By the Privy Council ceasing to be Singapore’s highest Court of Appeal, Singapore courts are now no longer bound by the UK courts and is free to vest judicial powers in its’ own Supreme Court.

Supremacy of the Singapore constitution as opposed to the UK
Due to Parliamentary Supremacy in the UK, the UK courts have no power to declare an Act of the UK parliament to be unconstitutional, thus being unable to render them null and void. Singapore has altered the Westminster model by making Singapore’s Constitution to be supreme. 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 an Act of the Singapore Parliament invalid due to inconsistencies with the Singapore Constitution, rendering the inconsistent Act null and void.

Exclusiveness of judicial power
In the UK Westminster model, judicial power of the UK courts are vested in them by common law or statute.

Singapore has departed from the UK Westminster model by having judicial power 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.

The Singapore Constitution then provides 2 different sources of judicial power. The first would be the Singapore Constitution itself. Article 93 gives the Judiciary judicial power and is has the same constitutional status with the legislative and executive power, being limited only to the limitations set out in the Singapore Constitution.

The 2nd source of judicial power would be statutory in nature as seen from the phrase “written law” in Article 93. This applies to the courts subordinate to the Supreme Court.

Judicial independence
Judicial independence preserve the distinct process by which the judges hold and minimises the court to make one-sided judgments accruing to 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 likely undermine popular belief in 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 that it would be inappropriate in a Constitution by which it was intended judicial power should be shared by the executive or the legislature. This accrues to the fact that the silence of the Constitution of judicial power showed an intention to vest judicial power only in the judicature, which is consistent with it remaining where it was.

Absent 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 were effectively removing the discretion of the court as to the sentence imposed, by 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. Lord Pearce quite aptly 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
Judicial power has been around the world, owing to the increasing prominence of rights and the infringement of which. The dynamism of society today has thus propelled the need for judicial power to have the right balance of flexibility, and certainty.

Safeguarding liberties and democracy
The Singapore Judiciary, by means of their judicial power, has the power to safeguard individual liberties by upholding the sections in Part IV of the Constitution. Namely, the liberty of the person; slavery and forced labour prohibited; protection against retrospective criminal laws and repeated trials; equal protection; prohibition of banishment and freedom of movement; freedom of speech, assembly and association; freedom of religion; rights in respect of education.

In fact, the courts are the institution through which the rights of the individuals are protected, and upheld. This accrues from the independence and separation of powers the judiciary enjoys, that allows the courts to quash or void any legislative or executive decision contrary to the fundamental rights of individuals. The courts’ discretion fills in the legislative blanks in order to adjust and limit the law, to ensure the fair treatment and respect for individual rights.

It has been argued that democracy is not merely about majoritarianism, but rather, 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. Yet it is important not to 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.

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.

Judicial power in criminal proceedings
An aspect of judicial power that recently received clarification by the Singapore High Court is the sentencing power of the court. 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 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.

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
Inherent jurisdiction refers to the power of all superior courts to hear and determine cases. It is a part of the general jurisdiction of the High Court and is unlimited in scope except where explicitly limited by statutes.

There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process: Connelly v DPP (1964), per Lord Morris.

Singapore, Malaysia and UK: a comparison The English High Courts have always assumed that these inherent powers exist. However, the situation might not be the same in Singapore.

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. Art 4 of the Constitution provides that any legislation inconsistent with the Constitution shall be void.

However, Art 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 public 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.

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

Judicial power is vested in the judiciary, including the Supreme Courts and Subordinate Courts, pursuant to Article 93 of the Constitution. This 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 power. 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 (“Act”), 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.

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 of Singapore, 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.