• About Us
    • Fact Checking Policy
    • Ownership & funding information
    • Volunteer
  • Subscribe
  • Letter submission
    • Submissions Policy
  • Contact Us
The Online Citizen Asia
  • Opinion
    • Editorial
    • Commentaries
    • Letters
    • Comments
  • Current Affairs
    • Singapore
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Arts & Culture
    • Consumer Watch
    • NGO
    • Lifestyle
    • Travel
  • Politics
    • Civil Society
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
No Result
View All Result
  • Opinion
    • Editorial
    • Commentaries
    • Letters
    • Comments
  • Current Affairs
    • Singapore
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Arts & Culture
    • Consumer Watch
    • NGO
    • Lifestyle
    • Travel
  • Politics
    • Civil Society
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
No Result
View All Result
The Online Citizen Asia
No Result
View All Result

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

by The Online Citizen
15/03/2019
in Legal
Reading Time: 4 mins read
0

Chief Justice Sundaresh Menon. Source: Supreme Court of Singapore

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.

For just US$7.50 a month, sign up as a subscriber on The Online Citizen Asia (and enjoy ads-free experience on our site) to support our mission to transform TOC into an alternative mainstream press.

Related Posts

Rescuers battle cold as Turkey-Syria quake toll hits 5,000
AFP

Rescuers battle cold as Turkey-Syria quake toll hits 5,000

07/02/2023
Hazel Poa proposes singles be allowed to buy 3-room HDB flats
Housing

Hazel Poa proposes singles be allowed to buy 3-room HDB flats

07/02/2023
Jamus Lim: House prices are too High
Politics

Jamus Lim: House prices are too High

07/02/2023
Ministers get away with excuses that ordinary citizens cannot hope to get away with
Opinion

Ministers get away with excuses that ordinary citizens cannot hope to get away with

07/02/2023
Commemorative coin, exhibitions and various activities to mark 100th anniversary of Lee Kuan Yew’s birth
Singapore

Commemorative coin, exhibitions and various activities to mark 100th anniversary of Lee Kuan Yew’s birth

07/02/2023
国会内庆妇女节 女议员获赠鲜花
Labour

15 companies barred from hiring new foreign employees after serious safety lapse found at worksite

07/02/2023
Subscribe
Connect withD
Login
I allow to create an account
When you login first time using a Social Login button, we collect your account public profile information shared by Social Login provider, based on your privacy settings. We also get your email address to automatically create an account for you in our website. Once your account is created, you'll be logged-in to this account.
DisagreeAgree
Notify of
Connect withD
I allow to create an account
When you login first time using a Social Login button, we collect your account public profile information shared by Social Login provider, based on your privacy settings. We also get your email address to automatically create an account for you in our website. Once your account is created, you'll be logged-in to this account.
DisagreeAgree
0 Comments
Inline Feedbacks
View all comments

Latest posts

Rescuers battle cold as Turkey-Syria quake toll hits 5,000

Rescuers battle cold as Turkey-Syria quake toll hits 5,000

07/02/2023
Hazel Poa proposes singles be allowed to buy 3-room HDB flats

Hazel Poa proposes singles be allowed to buy 3-room HDB flats

07/02/2023
Jamus Lim: House prices are too High

Jamus Lim: House prices are too High

07/02/2023
Ministers get away with excuses that ordinary citizens cannot hope to get away with

Ministers get away with excuses that ordinary citizens cannot hope to get away with

07/02/2023
Commemorative coin, exhibitions and various activities to mark 100th anniversary of Lee Kuan Yew’s birth

Commemorative coin, exhibitions and various activities to mark 100th anniversary of Lee Kuan Yew’s birth

07/02/2023
国会内庆妇女节 女议员获赠鲜花

15 companies barred from hiring new foreign employees after serious safety lapse found at worksite

07/02/2023
Why is Gautam Adani’s Indian empire in turmoil?

India’s Adani Enterprises shares rocket 20%, trading suspended

07/02/2023
China’s Baidu says developing AI chatbot

China’s Baidu says developing AI chatbot

07/02/2023

Trending posts

Cognizant India transfers staff to work in Singapore as recently as this year

Local IT grads can’t find jobs while engineers constantly transferred from India to work in SG under CECA

by Correspondent
05/02/2023
108

...

They have done a fine job of confusing us about the jobs situation

They have done a fine job of confusing us about the jobs situation

by Augustine Low
01/02/2023
48

...

Adani’s brother runs SG company and registers as director with local ID

Adani’s brother runs SG company and registers as director with local ID

by Correspondent
03/02/2023
26

...

No response from Josephine Teo on whether Mediacorp has been instructed to stop coverage of SMT circulation scandal

No response from Josephine Teo over alleged blackout of coverage by Mediacorp over SMT circulation scandal

by Terry Xu
06/02/2023
12

...

Former Singaporean shares change of life in Australia with annual pay of S$80,000 as a plumber

Former Singaporean shares change of life in Australia with annual pay of S$80,000 as a plumber

by Yee Loon
30/01/2023
25

...

Japanese-Canadian junior high school girl breaks national record with 3km in 9:02 mins

“I want my normal life back,” Sherry Drury withdraws from National Junior High School Tournament due to overheated public attention

by Yee Loon
06/02/2023
3

...

March 2019
M T W T F S S
 123
45678910
11121314151617
18192021222324
25262728293031
« Feb   Apr »

The Online Citizen is a regional online publication based in Taiwan and formerly Singapore’s longest-running independent online media platform.

Navigation

  • Editorial
  • Commentaries
  • Opinion
  • Politics
  • Community

Support

  • Contact Us
  • Letter submission
  • Membership subscription

Follow Us

  • Facebook
  • Twitter
  • YouTube
  • Instagram
  • Fact Checking Policy
  • Privacy Policy

© 2022 - 2023 The Online Citizen Asia

No Result
View All Result
  • Opinion
    • Editorial
    • Commentaries
    • Comments
  • Current Affairs
    • Malaysia
    • Indonesia
    • China
    • ASEAN
    • Asia
    • International
  • Finance
    • Economics
    • Labour
    • Property
    • Business
  • Community
    • Civil Society
    • Arts & Culture
    • Consumer Watch
    • NGO
  • Politics
    • Parliament
    • Transport
    • Education
    • Environment
    • Health
    • Housing
  • Law & Order
    • Legislation
    • Court Cases
  • Lifestyle
    • Travel
  • Subscribers login

© 2022 - 2023 The Online Citizen Asia

wpDiscuz