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The Judiciary ,[object Object]
Outline of Lectures ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Framework of the Higher Judiciary ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Framework of the Higher Judiciary ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Framework of the Higher Judiciary ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
The Judicial Power Definition: ‘ 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.’ Huddart Parker Pty Ltd v Moorehead  (1908-1909) 8 CLR 330.
The Judicial Power - Cases ,[object Object],[object Object],[object Object],[object Object],[object Object]
Judicial Authority ,[object Object],[object Object],[object Object],‘ in many cases the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void.
Judicial Authority John Marshall CJ  Marbury v Madison : It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two rules conflict with each other, the courts must decide on the operation of each. all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void.
Judicial Independence It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two rules conflict with each other, the courts must decide on the operation of each. Federalist No 78 The complete independence of the courts of justice is peculiarly essential in a limited Constitution … Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. ,[object Object],[object Object]
Judicial Independence Article 98(1) Subject to this Article, a Judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time not being later than 6 months after he attains that age, as the President may approve. Article 94(1) The Supreme Court shall consist of the Court of Appeal and the High Court with such jurisdiction and powers as are conferred on those Courts by this Constitution or any written law. Article 94(2) The office of the Judge of the Supreme Court shall not be abolished during his continuance in office
Judicial Independence Article 94(3) A person qualified for appointment as a Judge of the Supreme Court or a person who has ceased to hold the office of Judge of the Supreme Court may be appointed as the Chief Justice in accordance with Article 95, or may sit as a Judge of the High Court or as a Judge of Appeal, if designated for the purpose (as the occasion requires) in accordance with Article 95, and such person shall hold office for such period or periods as the President, if the President, acting in his discretion, concurs with the advice of the Prime Minister, shall direct. Article 94(4) In order to facilitate the disposal of business in the Supreme Court, the President, if he, acting in his discretion, concurs with the advice of the Prime Minister, may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner of the Supreme Court in accordance with Article 95 for such period or periods as the President thinks fit; and a Judicial Commissioner so appointed may, in respect of such class or classes of cases as the Chief Justice may specify, exercise the powers and perform the functions of a Judge of the High Court. Anything done by a Judicial Commissioner when acting in accordance with the terms of his appointment shall have the same validity and effect as if done by a Judge of that Court and, in respect thereof, he shall have the same powers and enjoy the same immunities as if he had been a Judge of that Court. Article 94(3) For the purposes of clause (4), the President may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner to hear and determine a specified case only.
The Removal of Judges ,[object Object],[object Object],[object Object],[object Object],President will appoint tribunal consisting of ‘not less than 5 persons who hold or have held office as a Judge of the Supreme Court, or if it appears to the President expedient to make such an appointment, persons who hold or have held equivalent office in any part of the Commonwealth.
The Removal of Malaysian Judges ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Judicial Independence ,[object Object],[object Object],AG v Times Newspaper ( 1974) : Law of contempt is ‘founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should … be limited to what is reasonably necessary for that purpose.’ AG v Hertzberg Daniel & Ors  (2008): …  the rationale for the law of contempt is rooted firmly in the public interest in that it aims to protect the administration of justice as well as public confidence in it, which is crucial for the rule of law and the maintenance of law and order in any civilized society. It is not in anyway intended to protect the dignity of the courts of judges.
Judicial Independence Proceedings by way of an order for committal initiated by Attorney-General.  Subordinate Courts Act Section 8 (Contempt): The subordinate courts shall have power to punish for contempt of court Supreme Court of Judicature Act Section 7: The High Court and Court of Appeal shall have power to punish for contempt of court.
Contemptuous Behaviour ,[object Object],[object Object],[object Object],[object Object]
Scandalising the Judiciary - Cases AG v Pang Cheng Lian  (1975) Pang – stringer for  Newsweek  – provided information resulting in article ‘Singapore-Selective Justice’ The High Court ‘did little to dispel the notion that the courts here are little more than extensions of the one-party system’; ‘in the courts in Singapore, it makes a vital difference whether it is the government or the opposition that is in the dock.’
Scandalising the Judiciary - Cases ,[object Object],[object Object],[object Object],[object Object]
Scandalising the Judiciary - Cases ,[object Object],[object Object],[object Object],[object Object]
Scandalising the Judiciary - Cases ,[object Object],[object Object],[object Object],[object Object],[object Object]
Scandalising the Judiciary - Cases ,[object Object],[object Object],[object Object],[object Object]
The Applicable Test –  Inherent Tendency ,[object Object],[object Object],[object Object],[object Object],[object Object],It is settled law that any publication which alleges bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function which has terminated is contempt of court … [I]t is sufficient to prove that the words complained of have the  inherent tendency  to interfere with the administration of justice. …  the ‘inherent tendency’ test has two clear advantages … First, it does not call for detailed proof of what in many instances will be unprovable, namely, that public confidence in the administration of justice really was impaired by the relevant publication … Secondly, it enables the court to step in before the damage, ie the impairment of public confidence in the administration of justice, actually occurs.
Power to Punish for Contempt: Some Problems ,[object Object],[object Object],[object Object]
Power to Punish for Contempt: Some Problems ,[object Object],[object Object],[object Object],[object Object]
Jurisdiction of the Courts ,[object Object],[object Object],[object Object],[object Object],[object Object]
Jurisdiction of the Courts Supervisory Jurisdiction Appellate Jurisdiction Does not go to merits of the case Touches on merits of the case. Appellant court will substitute the decision of the lower court/tribunal with one of its own. Pending cases are subject ot jurisdiction Only activated if there is an actual decision or judgment ,[object Object],[object Object],[object Object],[object Object],[object Object]
Jurisdiction of the Courts Supervision Revision Extends to all administrative tribunals Confined to subordinate courts Initiated by party seeking relief Can be at the instance of the High Court Concerned with questions that do not touch on merits of the case Deals with errors of fact and law ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],Wide flexibility of remedies, eg retrial, overturn decision etc.
The Limits of Judicial Review ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Case or Controversy ,[object Object],[object Object],[object Object],[object Object],[object Object]
The Limits of Judicial Review ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
Public Law Remedies ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]

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Constitutional Law 4

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  • 6. The Judicial Power Definition: ‘ 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.’ Huddart Parker Pty Ltd v Moorehead (1908-1909) 8 CLR 330.
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  • 9. Judicial Authority John Marshall CJ Marbury v Madison : It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two rules conflict with each other, the courts must decide on the operation of each. all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void.
  • 10.
  • 11. Judicial Independence Article 98(1) Subject to this Article, a Judge of the Supreme Court shall hold office until he attains the age of 65 years or such later time not being later than 6 months after he attains that age, as the President may approve. Article 94(1) The Supreme Court shall consist of the Court of Appeal and the High Court with such jurisdiction and powers as are conferred on those Courts by this Constitution or any written law. Article 94(2) The office of the Judge of the Supreme Court shall not be abolished during his continuance in office
  • 12. Judicial Independence Article 94(3) A person qualified for appointment as a Judge of the Supreme Court or a person who has ceased to hold the office of Judge of the Supreme Court may be appointed as the Chief Justice in accordance with Article 95, or may sit as a Judge of the High Court or as a Judge of Appeal, if designated for the purpose (as the occasion requires) in accordance with Article 95, and such person shall hold office for such period or periods as the President, if the President, acting in his discretion, concurs with the advice of the Prime Minister, shall direct. Article 94(4) In order to facilitate the disposal of business in the Supreme Court, the President, if he, acting in his discretion, concurs with the advice of the Prime Minister, may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner of the Supreme Court in accordance with Article 95 for such period or periods as the President thinks fit; and a Judicial Commissioner so appointed may, in respect of such class or classes of cases as the Chief Justice may specify, exercise the powers and perform the functions of a Judge of the High Court. Anything done by a Judicial Commissioner when acting in accordance with the terms of his appointment shall have the same validity and effect as if done by a Judge of that Court and, in respect thereof, he shall have the same powers and enjoy the same immunities as if he had been a Judge of that Court. Article 94(3) For the purposes of clause (4), the President may appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner to hear and determine a specified case only.
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  • 16. Judicial Independence Proceedings by way of an order for committal initiated by Attorney-General. Subordinate Courts Act Section 8 (Contempt): The subordinate courts shall have power to punish for contempt of court Supreme Court of Judicature Act Section 7: The High Court and Court of Appeal shall have power to punish for contempt of court.
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  • 18. Scandalising the Judiciary - Cases AG v Pang Cheng Lian (1975) Pang – stringer for Newsweek – provided information resulting in article ‘Singapore-Selective Justice’ The High Court ‘did little to dispel the notion that the courts here are little more than extensions of the one-party system’; ‘in the courts in Singapore, it makes a vital difference whether it is the government or the opposition that is in the dock.’
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