Judicial tenure and constitutionality of legislations

Anthea Indira Ong
Nov 5 · 7 min read

Parliamentary Speech, Constitution of the Republic of Singapore (Amendment) Bill, 5 Nov 2019

Safeguarding Judicial Independence with Security of Tenure

Mr Speaker, I stand in support of this Bill which introduces an Appellate Division of the High Court with the intent of refining our judicial system to enhance the efficiency and flexibility of court processes.

Sir, since we are examining changes to the judicial system with this Bill, I would like to take this opportunity to ask the Minister and this House to consider security of tenure to ensure full independence of our judges. Currently, our Judicial Commissioners and older High Court judges are contractually renewed and do not have tenure under Articles 95 clauses (2) and (5) of the Constitution, meaning that they do not have the certainty of staying on in the judiciary. They are instead appointed by the President with the concurring advice of the Prime Minister.

A 2015 study by the Bingham Centre for the Rule of Law on the appointment, tenure and removal of judges in the Commonwealth found that such renewable appointments may (I quote) “place the career interest of a judge in conflict with the judicial responsibility for upholding the rule of law in cases involving the government or other powerful persons who may have influence over the renewal decision. Such conflicts of interest may pose a risk to both the actual and perceived independence of the judiciary” (unquote).

Moreover, the reasons for offering contractual renewal to judges no longer exist. In the late 1960s, there was a serious shortage of High Court judges resulting in a backlog of court cases. Parliament allowed judges beyond the retirement age of 65 to stay on as “contract judges”, enabling the judiciary to hold on to experienced and able judges. This Senior Judge scheme is still in place today.

The Judicial Commissioner scheme was introduced in 1979 to attract top practitioners to be judges for a period between six months and three years, then go back to their practice. The income disparity earned by judges and top practitioners was at that time very significant, so practitioners had to be financially attracted to become judges. However, this changed in the mid-1990s when the salaries of judges were raised by pegging them to top earners in Singapore.

In addition to security of tenure for Judicial Commissioners and Senior Judges to safeguard their judicial independence, I urge the Minister to consider extending the retirement age of judges to 70, with optional retirement at 65 years old, instead of having renewal of appointments so that we can still retain the services of older yet experienced and able judges. As a comparison in other jurisdictions, the tenure for judges in the US is for life, while the retirement age of judges in England and Australia is 70 years old.

These changes will enable the judiciary to exercise the judicial power vested in them under Article 93 of our Constitution, free from encumbrances and worries that they may not be contractually renewed, and therefore provide effective check and balance on the powers of the Executive and the Legislature.

Significance of our Constitution and Our Duty as Parliamentarians

Mr. Speaker, it was only with this Bill and studying the underlying Constitution that I fully recognise and appreciate the significance of our Constitution as the supreme law of the land as stated in Article 4, and our duty as parliamentarians to uphold the constitutionality of the laws that we make in this House for the judiciary and the other branches to fulfill their respective roles independently for an effective democracy. Yet the parliamentary debates in this House rarely make reference to this supreme law.

Our Constitution delineates functions and powers of key public institutions including the Legislature, the Executive, the Judiciary, and our civil service. Amendments to the Constitution have also enabled significant tweaks to our political system, including the introduction of the Group Representation Constituency (GRC) system, Nominated Members of Parliament (NMPs) and the elected presidency, to operationalise.

Article 38 of our Constitution vests legislative power in the Legislature, which consists of the President and Parliament. This power enables us to shape our country’s progress and our people’s behaviours. How should we then exercise this power properly? What are the constitutional ideals that we must uphold? Allow me to outline three key ones.

First, our Constitution provides for the existence of different branches of government that serve as a check and balance on one another. While Parliament has legislative power, the Judiciary has judicial power, and the Cabinet has executive functions. The Parliament vests powers of the Executive on persons other than the Cabinet, such as civil servants of high authority. The Judiciary can make judgements on the constitutionality of legislation passed by Parliament. The Judiciary can also make judgements on the failure of the Cabinet to properly exercise executive functions. The Cabinet implements regulations and policies based on the legislation enacted by Parliament. It is therefore important for us to ensure that each branch has autonomy, so that they can fulfill these functions in the best possible way. This is the basis for my recommendation for security with tenure to ensure full judicial independence.

Second, we should strive to ensure the constitutionality of legislation for future judicial references. As the supreme law, all other laws passed must not contravene the Constitution. This is called constitutional supremacy. Therefore, Article 4 provides that any law enacted by the Legislature which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. That would mean that in debating Bills, we should consider their consistency with our Constitution. Such constitutionally-informed debates can protect the electorate’s rights and allow public institutions like the judiciary to fulfill their roles, in full view of the electorate. I think we will agree that this will help us build a more informed and engaged citizenry.

Finally, Part IV of our Constitution protects fundamental liberties, including the life and liberty of a person, freedom of speech, assembly and association, freedom of religion, and equal protection, among others. Termed fundamental liberties, they are meant to be zealously safeguarded, with Parliament only being able to restrict these liberties in very limited circumstances. Hence, the legislation we enact must serve to protect these constitutionally-enshrined fundamental liberties, the courts must also be enabled to protect these liberties by being duly kept independent.

Constitutionality of Equal Protection in Legislation and Judicial Interference

As we discuss the changes and significance of our judiciary system with this Bill, and the importance of judicial independence with my earlier recommendation of tenure, I would like to seek your indulgence Mr Speaker to discuss a couple of policy examples where we could argue that judicial independence could guard against breaches in the constitutionality of legislations made, for example, to the Equality provision.

With other honourable members in this House, I had raised in the debate on the CareShield Life Bill that the differentiated premiums for men and women goes against the right to equality. This House passed the Bill with gender-differentiated premiums.

<I was stopped by the Speaker, on relevance and I only managed to say ‘Section 377A before I was shut out. >

[The debate on Section 377A happened in this House before my time but the public discourse ensues. Whether it is a bad law for its non-enforceability or for it just targeting males, or that it remains in our Penal Code for reasons of majoritarianism, is this legislative example aligned to the right to equality in our Constitution?]

Conclusion

Mr. Speaker, our Constitution represented the dreams of a young democracy when it was first created with our sudden independence and now bears the marks of the growth of a determined and thriving nation. We have come this far and won much praise for our world class model of governance because of the strength of our Constitution in the separation of powers between the Judiciary, the Parliament and the Executive as well as the protection of the fundamental liberties of all Singaporeans including the right to equality.

The security of tenure for our judges enables full judicial independence, and therefore further upholds our Constitution ideal by providing effective check and balance on the powers of the Executive and the Legislature.

We are in a stronger position than ever to keep fighting for these ideals so as to become the kind of society we want to be. Albert Einstein once said that “the strength of the Constitution lies in the determination of each citizen to defend it.’’ And therefore, together with our colleagues in the judiciary, our duty as parliamentarians must be to defend the constitutionality of the laws that we make in this House for Singaporeans. For I do believe the greatest threat to our Constitution would be our ignorance of it.

Thank you.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Anthea Ong is a Nominated Member of Parliament. (A Nominated Member of Parliament (NMP) is a Member of the Parliament of Singapore who is appointed by the President. They are not affiliated to any political party and do not represent any constituency. There are currently nine NMPs in Parliament.)

The multi-sector perspective that comes from her ground immersion of 12 years in different capacities helps her translate single-sector issues and ideas across boundaries without alienating any particular community/group. As an entrepreneur and with many years in business leadership, it is innate in her to discuss social issues with the intent of finding solutions, or at least of exploring possibilities. She champions mental health, diversity and inclusion — and climate change in Parliament.

She is also an impact entrepreneur/investor and a passionate mental health advocate, especially in workplace wellbeing. She started WorkWell Leaders Workgroup in May 2018 to bring together top leaders (CXOs, Heads of HR/CSR/D&I) of top employers in Singapore (both public and private) to share, discuss and co-create inclusive practices to promote workplace wellbeing. Anthea is also the founder of Hush TeaBar, Singapore’s 1st silent teabar and a social movement that aims to bring silence, self care and social inclusion into every workplace, every community — with a cup of tea. The Hush Experience is completely led by lovingly-trained Deaf facilitators, supported by a team of Persons with Mental Health Issues (PMHIs).

Follow Anthea Ong on her public page at www.facebook.com/antheaonglaytheng

Anthea Indira Ong

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I Am Here. Grateful. Human. Always.

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