Topic 5: Courts and Adjudication

What were the reasons given for the abolishment of appeals to the UK Privy Council? A. The UK Courts were progressively influenced by European law. B. Expensive for appeals to be sent to the Privy Council. C. To prevent foreign interference in Singapore law and poiltics. D. To allow local jurisprudence to develop along indigenous lines. (Gary Chan, Doctrine of Judicial Precedent p. 393)

A and D

When can the per incuriam rule be invoked? A. At a Court at the same horizontal level of the Court whose decision is in question. B. Where a Court has made a decision in ignorance of a lower Court's decision. C. Where a Court has made a decision in ignorance of a higher Court decision.(Gary Chan, Doctrine of Judicial Precedent p. 385)

C

What is judicial precedent?

Refers to any previously reported decision of the court which has become binding. ​

What is Laches?

The doctrine that claims will be barred if it results from an unreasonable delay or negligence in pursuing a right or claim.

Singapore's Judiciary

The judicature is set out by the constitution and the code is governed primarily by 2 acts (State Court Act and the Supreme Court of Judicature Act) There are 2 divisions of the courts Supreme Courts: (1) Court of Appeal (2) High Court State Courts: (1) District Courts (2) Magistrate Courts (3) Family Courts (4) Juvenile Courts (5) Coroners Court (6) Other tribunals (Small Claim tribunals) After 1994, when Parliament passed the Judicial Committee for the Privy Council Repeal Act, the highest court in Singapore was the CA and not the Privy Council in London.

What are the broad goals behind the sue of precedents/doctrines of stare decisis.

Uniformity and consisteny, Certainty and Predictability

What is the difference between the mode in which the UK and SG confer judicial power?

(1) In Singapore the Constitution is supreme, in the UK Parliament is supreme (2) Judicial power of Singapore vests in the Supreme Court and other subordinate courts by virtue of Article 93 of the Constitution, in the UK the judicial power is vested in the British courts either at common law or at statute (Video 9)

Small Claim Tribunal

- Set up in 1984 as a fast way to settle small disputes due to goods and service up to $10k or $20k (if the parties agreed in writing) - It does not function like a real court since there is no legal representation and it is presided over by a referee who is a qualifies person under the LPA. - There is a limit of the claims being 1 year after the transaction - When there is a question of law, it can be repealed.

Jurisdiction of SG Courts (Yeo Tiong Min)

(a) All Singapore courts are created by legislation, their powers are conferred from the acts. (b) The supreme court has jurisdiction over most subject-matter, except for cases in the Syariah Courts (c) Admiralty Jurisdiction is alienated to: a. When the person is habitually in Singapore or has a place of business in Singapore. b. When the matter arises in Singapore. c. When the matter is proceeding in Singapore courts or has previously been heard by the Singapore courts. d. When the defendant agreed to hear the matter in the Singapore courts.

Definition of Jurisdiction

(a) Generally, it refers to the court's power to hear disputes. a. When a court is hearing a dispute for the first time it is exercising original jurisdiction. (Magistrates Court) b. When a court is hearing an appeal, it is exercising appellate jurisdiction. (b) Capacity that the court hears the case, this is determined by statute. a. District court can only hear claims up to $250,000 b. Most courts in Singapore can hear both civil and criminal cases. (c) Power to punish for an offence a. Only the Supreme Court can mete out the death penalty

History of Judiciary Branch

(a) The first court established in Singapore was for the Court of Judicature for the Prince of Wales islands (Penang, Singapore and Malacca) a. This was under the Second Charter of Justice in 1826. (b) A separate court was established in the third charter of justice in 1855 for Malacca and Singapore. A separate recorder was permanently established in Singapore. (c) In 1867, when the Straits Settlement came under the colonial Office in London, the Court of Judicature became the Supreme Court of the Straits Settlements with its own chief justice.

Juvenile Courts

- JC is established from the Children and Young Person's Act, the JC is apart from the State Court system - They preside over youths, below 16 years old - Rationale: There is a different approach to treating the children and the JC will ensure that an appropriate sentence is meted out. - JC is presided by a magistrate and assisted by advisors that come from a panel of advisors who are chosen by the president. - JC can: Make a probation order, put the juvenile in the care of a fit adult, send them to the Young Offenders Sanction in prison

Syariah Court

- The Syariah Court is not under purview of the State Courts. - It has concurrent jurisdiction with Syariah Court over certain civil proceedings. - Administration of Muslim Law Act (AMLA) establishes the Syariah Court, which has jurisdiction to hear cases of Muslim Law over several matters: Marriage Divorce Betrothal, nullity of marriage or separation Disposition or disposal of property on divorce Payment of mas-kahwin, maintenance, and consolatory gifts or Matta'ah - Syariah court presided over by a "President" who is appointed by the President of the Republic of Singapore. a. There may be more than 1 president of the court at any one time. b. And in such instances, the President of Singapore may appoint 1 of these presidents to be the Senior President of the Syariah court. - Cases of the Syariah Court are appealable to the appeal board or the Council of Muslim Religion Singapore. (MUIS) The decision of which is final. The President of MUIS is also appointed by the President - The Syariah Court is nonetheless still subject to the supervisory jurisdiction of the High Court.

Constitutional Safeguards for Judges (Judicial Independence)

- There is no dismissal for arbitrary issues/dismissal at will/renumeration or change of salary. - They have the security tenure. - They will hold office until 65 years old where they retire. - Before that, they can only be dismissed for infirmity, gross misconduct in official capacities and incapacity. There are 2 exceptions: 1. Supernumeracy (Contract) Judges - After retiring and on a contractual basis, no constitutional safeguards 2. Judicial Commissioners - Temporary Judges - To ease the short of judges in Singapore - Can be just for one case - Can last anything from one to three years - Can be seen as a preclude to judge-ship

Coroner's Court

- To inquire into unnatural or unexplained deaths. - Same qualification as Magistrates and coroners are often drawn from the pool of magistrates from the legal service. - When there is a natural death, they will be examined to see if inquest is required. - If it is, a post-mortem of the body is usually carried out by the state pathologist to establish the course of death.

Value of Judicial Precedent

1. Adequate the reliable reports 2. Rules to extract legal principle from a set of facts 3. There must be a classification for cases which are binding and those which are merely persuasive

Speciality Courts within the Supreme Court

1. Intellectual Property Court and Admiralty Court - Created in 2002, works like the HC but the judges have special knowledge in the areas 2. Family Justice Act 2004 - Family Devision in the HC 3. Ad-hoc Constitutional Tribunal (Special Constitutional Tribune) - President can direct questions about the powers under the constitution. - Must reply in 60 days and dissenting opinions must be explained. - The majority judgement is final, there is no appeal. - There must be not less than 3 judges from the Supreme Court.

Why do we look at UK cases?

1. Singapore has very little case law due to our short legal history. 2. Since much of Singapore's Law come from English Law, we look at English cases to establish the doctrine of precedence. We look at: 1. Cases regarding specialised parts of contract law. 2. Specialised areas in the law that have come up in the UK but not in Singapore.

Different forms of Jurisdictions (Yeo Tiong Min)

1. Subject-matter jurisdiction (civil and criminal) 2. Territorial jurisdiction 3. Law and Equity Jurisdiction 4. Jurisdiction of power (contempt of court, remedies) 5. Jurisdiction over person, items and causes 6. Jurisdiction to correct other courts

Benefits and Disadvantages of Stare Decisis

Although this is followed, some problems remain: · Degree of consistency at the SGHC and SGCA is less than before o Presence of more judges could lead to varied standards of meting out punishments, compensations, etc. o In practice, no judge likes to be bound by an unjust decision. So UNLESS there is very strong control from higher up in the hierarchy, they tend to do what is just - no horizontal stare decisis. Note: It is a rule of judicial practice to ensure clarity and consistency in the law so that the legal system remains stable and citizens can rely on this certainty to plan their lives appropriately. However, it is not always easy to keep to this discipline Slavishly conforming to a system of binding precedent may lead to injustice and inflexibility.

Magistrate Court

Appointing Magistrates - President appoints magistrates under advice from the CJ. - They can appoint any fit and proper person to be a magistrate. - This used to be non-lawyers, community leaders etc. - Now, magistrates are normally from the legal service and are all graduates. - They must be a qualifies person for at least 1 year under the LPA - Up to $60k for civil cases. - Criminal cases: a. 5 years of imprisonment b. $2k of fine c. 6 strokes of caning - This can be extended due to the criminal procedure code.

The principle of judicial precedent allows for which of the following outcomes; A. Judges deciding outcomes afresh B. Uniformity in the law C. Exclusion of human arbitrainess D. Flexibility in the legal system (Gary Chan, Doctrine of Judicial Precedent p. 370)

B. Uniformity in the law C. Exclusion of human arbitrainess

Which of the following options describes the method of "deductive reasoning"? A. Deriving a general or universal rule from particulars. B. Extending the legal principle found in an existing case by referring to the similarity between the 2 cases. C. Reasoning from general legal principles to the particular facts of the case. D. Deriving an explaination by taking the argument to its logical conclusion leads to absurdity (Gary Chan, Doctrine of Judicial Precedent p. 371)

C. Reasoning from general legal principles to the particular facts of the case.

Which of the following decisions are binding on the Singapore Court of Appeal? A. Previous Singapore Court of Appeal decisions. B. Decision of predecessor Courts C. Past UK Privy Council decisions. D. None of the above. (Gary Chan, Doctrine of Judicial Precedent p. 393)

D

When will it be right to depart from Court of Appeal and Privy Council decisions prior to 1994?

Depart based on (1) The general reasoning and logic of the precedent, (2) the local circumstances and conditions. (Gary Chan [11.59]) Actual wording of the Practice Statement "would cause injustice ... or constrain the development of the law in conformity with the circumstances of Singapore"

Which of the following are considerations for prospective overruling? A. The extent to which the law is considered entrenched. B. The extent of the change of the law. C. The extent to which the change to the law is foreseeable. D. The extent of reliance on the law concerned. E. All of the above. (Gary Chan, Doctrine of Judicial Precedent p. 398)

E

UK Law Reporting

English Law Reporting was very haphazard. But in modern times, reports such as the Law Reports, the All England Law Reports and the weekly law reports have become very important sources for judicial precedent. The authoritative set for UK Law Reporting comes from the "Official Law Reports". It is said to be authoritative because (1) before it gets published, judges have to sign off to the truth of what they have said in court and the judgment. (2) It contains the counsel's arguments, which can be useful for research, making your own arguments for a separate case (3) When judges write judgements, they refer to submissions by counsel. It would be more useful in complex cases to see what was in fact argued. Limitations of the Official Law Reports (1) There is always a time lag, because the judges have to take time to sign. It tends to get published one year after the decision has come out Most lawyers would make use of the more current reports for reference

The Singapore High Court is bound by the previous decisions of the Singapore High Court. True or False? (Gary Chan, Doctrine of Judicial Precedent p. 371)

False

Court of Appeal (Hierarchy. Jurisdiction, Judges, Considerations, Decision)

Hierarchy - Chief Justice - Vice presidents of CA - Court of Appeal Judges - Puisne Judges Jurisdiction - Only appellate jurisdiction over criminal and civil cases Judges - Usually 3 judges on the panel can go up to 5 or 7 - Can borrow coram from the HC: a. when the judge has a special expertise in a particular area b. When a CA judge cannot sit on a panel for any reason Considerations - Will only consider the law in the area and not the accuracy of the facts proffered by the parties Decision - This is the final decision and will be binding on all other courts in Singapore

Muslim Marriages

However, for marriage between Muslims, it is an area that is exclusive for the Syariah Courts. Situations: a) 2 Muslims getting married AMLA (Women's Charter cannot formalise) b) 1 Muslim, 1 Non-Muslim Either AMLA or Women's Charter (depending on them)

District Courts (Judges qualification, Jurisdiction limits)

Judge Qualification - They are chosen by the president with advice from the Chief Justice, a presiding District Judge is also chosen - To qualify as a district judge, just need 5 years of being qualified under the LPA, but unlike Supreme Court judges, they are not protected for renumeration and do not have tenure. Jurisdiction The Civil jurisdiction of the district court is allowed for all matters - Contract and tort cases are capped at $250k - For equity and probate matters, it is capped at $3M - Criminal cases, there is a cap of: a. Imprisonment of 10 years b. 12 strokes of the cane c. Fine of up to $10k - Some statutes like the Misuse of Drugs Act can allow DC judges to impose imprisonment of up to 30 years and 15 strokes

High Court (Judges, Jurisdiction, Role, Exceptions)

Judges - puisne judges + JC = most of the supreme court - Must be qualified under the Legal Profession Act (LPA) for at least 10 years - Can summon persons with knowledge on the matter to be assessors. Jurisdiction - Appellate Jurisdiction: For Magistrate and District Courts - Original Jurisdiction: a. Civil matter, more than $250k b. Criminal matter, more than 10 years of jail c. Probate matters, if the estate of the deceased is more than $5M d. Ancillary and family matters if the assets is more than $5M Role - Supervisory role: to make sure subordinate courts are acting within jurisdictional units - Revisionary role: Can call and examine the proceedings of the court to look at the correctness and legality of the judgement, this can include the findings and the fairness of the judgment Exceptions : - Cannot look at the divorce and marriage cases in Muslim Law - Has concurrent jurisdiction with the Syariah courts for maintenance of wife, child, custody, disposition and division of property in divorce in Muslim marriages

What are the different types of jurisdictions?

Original and Appellate courts

Prospective Overruling

Simply put, all prior cases follow the old rule while all subsequent cases follow the newly established rule.​

Doctrine of Binding Precedent What is vertical SD? What is horizontal SD?

Simply put, the doctrine of Stare Decisis binds courts to follow legal precedents set by previous decisions. Like cases should be decided alike. · The higher the level of authority, the more important the case is as a precedent, and thus, as a source of law. · Vertical Stare Decisis In any hierarchical common law system, courts below in the hierarchy are obliged to follow the decisions of courts higher up for the sake of consistency · Horizontal Stare Decisis Courts bound by their own decisions o Necessary in the UK (Court of Appeal) because there are many CA judges, and it doesn't make sense for one judge's opinion to differ from another - there may be confusion as to what the law really is etc.

Transfer of Jurisdiction

State --> High Courts 1. When an impartial trial cannot be held in the subordinate courts. 2. When the place where the offence is committed must be inspected. 3. When it is more convenient for the parties involved and the witnesses. 4. When it is more expedient for the ends of justice for the case to be heard in the High Court. 5. When a difficult question of the law is likely to arise. High --> State Courts 1. A civil trial can normally be heard in the district court as long as there is a "sufficient reason". Magistrate --> District Courts 1. When a difficult question of law or fact is involved.

What are the courts below the Supreme Court collectively known as?

State courts. They were previously known as subordinate courts.

Difference between Supreme and State court Judges

Supreme Court - There is no discussion of the judges in Parliament unless there is a substantive motion. - There is no changing of the salary. - Appointments can only be vetoed by the president. State Courts - All from the legal service - Personnel can be shifted around - No in built constitutional protection - In the past it used to be even easier to remove judges from their positions (eg. Senior District Court Michael Khoo was rumoured to be removed from his position in very short notice due to a decision that displeased the executive) - With the legal service commission that comprises of the Chief Justice and other non-lawyers and non-civil servants, this is harder to do now.

Appointment of Justices (Judicial Independence)

Supreme Court judges are chosen by the President on advice from the Prime Minister, after consulting the Chief Justice. The Chief Justice is appointed by the President on advice from the Prime Minister.

The judgements made by judges in the minority of a decision is regarded as obiter dicta. True or false? (Gary Chan, Doctrine of Judicial Precedent p. 382)

TRUE

Family Court

The FC was established in March 1995 to provide parties the ease and convenience of having all family matters dealt with under one roof. The FC is currently presided over by a district judge and all parties are required to attend a mediation conference. These conferences are intended to promote negotiations for settlement as soon as the issues are identified.

Judicial review can only be initiated by the parties whereas Revisionary proceedings can be initiated by a judge. T/F?

True (Yeo Pg 267) Judicial Reviews - concerned with issues of jurisdiction and natural justice - initiated by the parties Revisionary Proceedings - issues of jurisdiction and questions of merits - initiated by a judge

The High Court has supervisory jurisdiction over the Syrariah Court T/F?

True, Extra: Furthermore, the High Court has concurrent jurisdiction with the Syrariah Court on some matters and cases of the SC are appealable to the appeal board or the Council of Muslim Religion Singapore (MUIS).

Judicial power need not be explicitly vested in the courts by the Constitution.

True

When the UK Privy Council heard appeals from other jurisdictions, its decision was not binding on Singapore Courts. True or False? (Walter Woon, Judicial Precedent p. 308)

True

What should courts show when overruling a previous CA decision? Factors that need to be weighed Wrt legislative intent?

When overriding a previous CA decision, the judges must show : 1. Circumstances change 2. The previous ruling was unjust The SGCA needs to weigh: 1. The need for certainty and coherence 2. Injustice of adhering to a mistaken decision The SGCA should always give rise to legislative intent and any mistakes should be corrected. Any mistakes made in previous decisions should be corrected.

Define Res Judicata When will it not apply?

Where a court has given a final decision in a case, it cannot be reopened, and the decision cannot be challenged on the matter decided on. (If it pertains to the same issue and parties are the same) In cases where the court has made such an egregious mistake that grave injustice to one or more of the parties concerned would result if the court's erroneous decision were to form the basis of an estoppel against the aggrieved party or parties. (Kevin Tan YL 2015 A Contextual Analysis, pg 179)

A Magistrates' court case amounting to $40,000 is seeking to appeal to the High Court, can it do so?

Yes, provided that a leave of the High Court is first obtained (Yeo Pg 262). Note the new limit is $60000 wef from 2019 - See s 21 of Supreme Court of Judicature Act!

Divorce in the Syariah Court

a) First question asked is of the man - are you prepared to announce the divorce? If man says yes Case moves on expeditiously b) But if only the woman wants divorce, there are only certain ways in which she can get a divorce; a. breach of the marriage vows (note: these are universal - so women from Middle Eastern countries may not be able to get a divorce here), and b. decree of nullity. c) The validity of a marriage goes to the very fundamentals of the marriage itself, and that's why two separate systems - WC and Syariah court - are still necessary with respect to divorce.

Determination of Importance of Source of Law

a) Ratio Decidendi a. A pronouncement of law with regard to the specific facts before the judge b. Germane to the outcome of the case c. It is usually the portion of the judgement that details the rules and how it applies to the facts b) Obiter Dictum a. A pronouncement of the law which has no direct impact/bearing on the final decision itself or a "by the way" statement b. Words of opinion of the court; it will not have direct impact on the actual outcome. c. It however may be useful in outlining the broad principles which are incidentally or collaterally connected with the principles in the case. d. Obiters can only be persuasive, not binding.

Stare Decisis in Singapore

a) The Court of Appeal is not bound by its own previous decisions or the decisions of the Privy Council when it was Singapore's highest level of court b) The High Court is bound by all SGCA and pre-1994 Privy Council decisions, but decisions of HC not bound by each other c) All subordinate courts are bound by the decisions made in SGHC and SGCA. a. If there is conflict between SGCA and SGHC decision, follow the SGCA decision. d) Decisions of ALL other courts (including foreign courts), are merely persuasive. There is no obligation to follow them, even if they interpret statutes the same way that we do. a. These can be distinguished by: i. Changes in social circumstances ii. Disputing ratio (too wide, conflicts with other cases?) iii. Deciding that case was decided per incuriam (judge did not have the benefit of other relevant cases cited to the court which may have been relevant)

Singapore Law Reports

· It began with private publishing of earlier reports. o The first was a tiny little volume called "Wood's Oriental Cases" which was published in 1869. Other early reports include The Straits Laws Reports and the "unkaishiou reports". · In 1893, the first official law reports were published by Mr Bashir Mallal, under the name of the Straits Settlements Law Reports. And this continued until 1941. · The next official set of law reports was the Singapore Law Reports. This lasted from 1946 to 1949 and then again from 1953 to 1956. · Up till 1959, the most important and consistent law report for both Malaysia and Singapore was the Malayan Law Journal or the MLJ for short. Since 1992, it has restricted its coverage on Malaysian cases only; · The Singapore Law Report Review service was revived in 1992 under the auspice of the Singapore Academy of Law. It was initially published by the firm Butterworth Asia and then by LexisNexis but since 2003, it has been published by the Academy of Law itself. o The Academy has also published a set of Singapore law reports reprints, which includes all cases decided in Singapore courts from the time of Singapore's independence in 1965. Singapore Law Reports (Reissue) · Currently, the most authoritative set of law reports is the Singapore Law Reports (Reissue). o Original Singapore Law Reports collected cases from 1965 o Reissue contains 60 additional cases · Important because: o It is the only version of the Reports which can be cited in court Included highly useful paragraph numbers

Difference between laches and statute of limitation

· Statute of limitation is concerned with actual amount of time elapsed and it is a statutory remedy, with set time limits within which action must be commenced; · Laches is concerned with reasonableness of time delay; a form of defense developed in courts of equity