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Chief Justice Sundaresh Menon. Source: Supreme Court of Singapore

Role of public policy in the judiciary must be clearly defined in an age of “judicialisation” of politics: CJ Sundaresh Menon

The role of public policy in the judiciary must be clearly defined in an age where matters typically resolved through political means are now increasingly being brought to the courts, said The Honourable Chief Justice of the Supreme Court of Singapore Sundaresh Menon.

Delivering his address titled “Taming the Unruly Horse: The Treatment of Public Policy Arguments in the Courts” at the High Court of Sabah and Sarawak in Kota Kinabalu, Malaysia on 19 Feb, CJ Menon stressed that formulating public policy does not fall under the scope of the courts’ authority in a constitutional democracy.

The judiciary is only one of the three constituents of the government, the other two being the legislative entities in Parliament and executive entities. Public policy, opined CJ Menon, should be left to the two arms of government, as many of their members were elected by citizens.

CJ Menon highlighted that the role of the judiciary is to instead find the facts presented and to subsequently apply the law unless there are exceptional circumstances that necessitate the courts’ “regard to general notions of community welfare and the public good”, and “only to the extent permitted by the law”.

The Chief Justice said: “Although most commonly associated with cases involving public law and human rights, almost every area of the law, from contract to tort to family law, incorporates some doctrine of ‘public policy’.

“Public policy arguments may arise in different ways in different areas of the law, but what unites them is that they all require the court to have regard not only to the interests of the parties to the dispute, but also to those of the community at large.

“However, there is a danger that in attempting to find the law in a domain that is dominated by public policy considerations, the court might, perhaps unintentionally, end up making it, and this can pose a real challenge to proper governance within the framework of the rule of law,” warned CJ Menon.

CIting Justice Burrough’s reasoning in Richardson v Mellish, a 19th century case, in which the judge had “famously remarked” that public policy is a “very unruly horse, and when you get astride it you never know where it will carry you”, CJ Menon said that the courts “are wary of relying on it openly because it is often seen as a “cover for uncertain reasoning”.

The Supreme Court judge also quoted a former United States’ Supreme Court jurist Oliver Wendell Holmes Jr., warning that “the moment you leave the path of merely logical deduction” in a court decision or ruling derived from legal principle and judicial precedent, “you lose the illusion of certainty which makes legal reasoning seem like mathematics”.

The logic of public policy goes against the “essential nature” of the role of the courts

CJ Menon said that “the logic of public policy cuts against the essential nature of the judicial task, which is to decide the individual case before the court”, in that “whereas public policy focuses on what is good for the community at large, most substantive principles of law focus on correcting the injustice between the particular parties in the particular case before the court”.

“Take contract law as an example. Most of the recognised factors which vitiate a contract, such as misrepresentation, mistake, duress, undue influence, and unconscionability, impugn a contract on the basis of objectionable conduct on the part of one or both of the contracting parties that impinges on the legitimacy of their bargain.

“Public policy, by contrast, generally, operates in circumstances where there is nothing inherently wrong with the bargain – at least as far as the parties are concerned – yet the court nevertheless intervenes to override the contractual rights of both parties, and they do soon the basis that the contract would be harmful to the greater public good,” he elaborated.

Public policy may be used as a tool to “curtail a right” via judicial means

CJ Menon also warned that the insertion of public policy into the courts may be “invoked to curtail a right that would otherwise be capable of being asserted under the operative law”, as evident in the way “contracts that are illegal or contrary to public policy cannot be enforced”.

“When courts transform into policy-making bodies and “make” law in an area that is not for them, they aggrandise the judicial power at the expense of the power of the people to decide, through their elected representatives, the laws they will be governed by.

“This has profound consequences both for the rule of law and democracy, and is likely to erode the legitimacy of both the Judiciary and the elected branches, and may leave each of them much the weaker,” he said.

Conversely, however, the Chief Justice acknowledged that public policy may be instead “employed positively to justify the existence and scope of a claimed right”.

“For instance, when the court is deciding whether to recognise a new tort, it considers whether doing so would be justified by considerations of public policy,” said CJ Menon.

Nonetheless, in an era where “the tides of social, economic and political change will continue to ebb and flow”, CJ Menon said that while “judges can and must continue to act courageously within their sphere”, it is also crucial for them to “respect the constitutional prerogatives of the elected branches with their own spheres”.

“This is sometimes a difficult road to walk, but it is only when armed with the discipline of principle that judges can discharge their fundamental oath to administer justice and protect the constitution while keeping within their rightful place,” he said.