SG Legal Institutions Flashcards
The Executive:
President
- Role and Functions:
a. Power to refuse PM’s advice (e.g. to make or revoke appt of offices in legal system (e.g. CJ) but P cannot appoint or dismiss by himself).
b. Even if want to revoke an appt/dismissal, has to consult council of Presidential advisors.
c. Power to chart legislative path.
2. Constitutional Ref 1 of 1995 [1995] 1 SLR(R) 803: P cannot under Art 22H(1) Constitution withhold assent to any Bill seeking to amend provisions referred to in Art 5(2A), and specifically to any Bill seeking to amend Art 22H to restrict the P’s powers thereunder which provides directly or indirectly for the circumvention or curtailment of P’s discretionary powers conferred upon him by the Constitution.
- Yong Vui Kong v AG [2011] 2 SLR 1189: P vested with discretionary powers, e.g. discretion to withhold concurrence to:
a. Govt budgets, and key Govt companies and statutory boards’ budgets;
b. any debt, guarantee, or loan to be incurred, given or raised by Govt;
c. certain appts to office;
d. requests to issue a Proclamation of Emergency;
e. detentions under Internal Security Act, contrary to the recs of Advisory Board; and
f. decisions by Minister under Maintenance of Religious Harmony Bill, contrary to recs of Presidential Council for Religious Harmony. - Power to pardon is absent from list of discretionary powers. This is manifestly understandable, given that power is not a function related to P’s ultimate duty of protecting SG’s financial assets and preserving the integrity of public svcs. Social function, “meant to be a unifying force within a multi-racial and multi-religious society”.
The Executive:
PM and Cabinet
- Responsible for general direction and control of Govt. PM alone has power to advise on appointment of CJ, Judges etc.
- Cabinet introduces drafts of law (aka Bills) via ministers. Bills must go through 3 readings in Parliament, and receive P’s assent.
- Ministers set the initial direction of law and may influence Parliament’s debate of the bill.
- Cabinet has considerable power in shaping SG laws despite being the Exec. - To get voted into office of legal systems:
- PM must suggest specific individuals;
- Appt to office subject to P’s power of refusal;
- Appt subject to Council of Presidential Advisors’ recommendations and 2/3 majority of Parliament.
The Executive:
Attorney-General - Role and Functions
- Principal legal advisor to Govt.
- May influence drafting of Bills and other written laws.
- Sole discretion to institute, conduct, or discontinue any proceedings for any offence.
The Executive:
Attorney-General - Prosecutorial Discretion -
Conditions?
- Must be exercised on a rational basis.
2. Note that courts will award the AG great deference (i.e. hard for D to argue that AG was unreasonable).
The Executive:
Attorney-General - Prosecutorial Discretion -
Ramalingam Ravinthran v AG [2012] 2 SLR 49
- Art 12(1) required PP to give unbiased consideration to all potential Ds and not to take into account any irrelevant considerations. As like cases should be treated alike, potential Ds who were involved in the same criminal conduct should, all other things being equal, be charged with the same offence.
- However, PP entitled and obliged to take into account many factors in its charging decisions, and where those factors applied differently to different potential Ds, this would justify differential treatment between them.
- Burden on D alleging that his prosecution was unconstitutional to produce prima facie evidence of the alleged unconstitutionality. Only when this had been done would AG be under an evidential burden to justify his prosecutorial decision.
- Once evidence of prima facie unconstitutionality was produced, PP would have to justify its prosecutorial decision or be found to be in breach of the Constitution.
The Executive:
Attorney-General - Prosecutorial Discretion -
Yong Vui Kong v PP [2012] 2 SLR 872
- Per Ramalingam, Court would presume legality or regularity of AG’s exercise of his prosecutorial discretion. This principle applied equally to a decision to discontinue a prosecution, regardless of whether or not the discontinuance amounted to an acquittal.
- No evidence of arbitrary or discriminatory conduct by the AG was produced in the present case. Instead, evidence on record was to the contrary. The mere discontinuance of the 26 charges against Chia was not per se an arbitrary or discriminatory exercise of the prosecutorial discretion, especially when the discontinuance did not amount to an acquittal.
- AG responsible for protecting the integrity of the prosecutorial process, which was vital to public confidence in CJS and the rule of law.
- AG should prosecute an accused person only if there was sufficient evidence to support the charge against him and, conversely, should discontinue a prosecution if he concluded, after reassessing the case against the accused, that there was no or little prospect of securing a conviction.
- Even if AG had mistakenly exercised prosecutorial discretion in applying to discontinue the 26 charges against Chia, it would not have mattered for the purposes of determining the substantive issue before the court. An error of judgment in the exercise of a discretionary power would not constitute evidence of bias or apparent bias.
The Executive:
Attorney-General - Prosecutorial Discretion -
Quek Hock Lye v PP [2012] 2 SLR 1012
- A must specifically produce prima facie evidence of bias or the taking into account of irrelevant considerations by AG in differentiating, pursuant to his prosecutorial discretion, between the charges against A and the charges against Sundar.
- In this regard, the mere differentiation of charges between co-offenders, even between those of equal guilt, is not, per se, sufficient to constitute prima facie evidence of bias or the taking into account of irrelevant considerations that breaches Art 12(1).
- Differentiation between offenders of equal guilt can be legitimately undertaken for many reasons and based on the consideration of many factors by the prosecution.
The Executive:
Attorney-General - Prosecutorial Discretion -
Limits, acc to Prof Chen?
- AG and judiciary are co-equals, so no judicial interference with the exercise of prosecutorial discretion unless exercised unlawfully.
- Given the high office of AG, Courts should proceed with the presumption that when the AG exercises prosecutorial discretion, this is done in accordance with the law.
- Where several offenders are involved in the same/similar offences committed in the same criminal enterprise, AG can take into acc a myriad of factors in determining the appropriate course of action … as long as there is no arbitrary exercise of power or extraneous purpose involved in the decision-making.
- Legal burden is on accused to adduce prima facie evidence of any improper exercise of prosecutorial discretion, and unless this burden is discharged, the AG is not obligated to furnish any reasons for any prosecutorial decisions made.
- Court only at best has power to amend charges but not the power to prefer or initiate them
Even if the AG had acted improperly, the Court has no power to set aside the conviction but can only make a declaration.
The Executive:
Attorney-General - Prosecutorial duty of disclosure
- Muhammad bin Kadar v PP [2011] 3 SLR 1205: AG must give up info that will change the outcome of the case materially (particularly potentially exculpatory evidence).
- Laid down the foundations of a more open justice system.
- BUT PP doesn’t have to disclose things it doesn’t know. Prevents D from arguing and obliging AG to make disclosure of evidence through further investigation. - PP v Goldring Timothy Nicholas [2014] 1 SLR 586: Granting of an additional right of access gives D a non-statutory, non-reciprocal and non-sequential avenue of disclosure of material in the Prosecution’s case. Exclusivity is necessary to preserve the elements of reciprocity and sequential disclosure which Parliament intended to implement to prevent tailoring of evidence.
The Legislature:
President and Parliament
- Art 38 Constitution provides that “legislative power of SG shall be vested in the Legislature which shall consist of the President and Parliament”. Parliament has elected and non-elected members, the latter whose voting rights are restricted.
- PP v Taw Cheng Kong: “it was the political fact of Singapore’s independence and sovereignty that had the consequence of vesting the Legislative Assembly of Singapore with plenary powers on Singapore Day”.
- Vellama d/o Marie Muthu v AG [2013] 4 SLR 1: Obiter - Per Constitution, PM does not have unfettered discretion in deciding when to call for a by-election, but must do so “within a reasonable time” (unless he intended to dissolve Parliament in the near future) to fill casual vacancies of elected Members of Parliament which might arise from time to time.
The Legislature:
Process of Making Laws
- Govt/MPs introduce new or amended laws. Proposed law first introduced in Parliament as a “Bill”.
- First Reading.
- Second Reading.
a. At least 7 clear days after First Reading for ministers to read the Bill and debate it. Minister will explain rationale of Bill.
b. MPs will rise in support of or against the underlying principles. After MPs have spoken, the proposing Minister will respond to them. MPs will vote.
c. Bill is read a second time.
d. Bill is committed either to the Committee of the whole Parliament in entirety or to a select committee for several MPs to be examined clause by clause (a report may then be issued). - Third Reading.
a. This is at the committee of the whole Parliament stage. MPs will again vote on amendments and debate. Only minor amendments will be allowed. - Presidential Council for Minority Rights. To ensure that there is no differentiating measure in the Bill that affects any particular community.
- Presidential Assent and bringing into force.
The Judiciary:
Courts’ Jurisdiction?
- Statutory jurisdiction
- Inherent Jurisdiction: inherent authority of the courts to hear a particular matter.
Not found statutorily but found because of the status of a court as a court.
The Judiciary:
Courts’ Jurisdiction -
Re Nalpon Zero Geraldo Mario
BUT Yong Vui Kong v PP, Cheong Wei Chang v Lee Hsien Loong and anor matter [2018] SGHC 217 at [64]-[74]
RN: If the power is not in statute, the court does not have the power to hear the case. CA has no power to re-open a criminal case despite fresh evidence.
YVK: CA has inherent power to review its own decision where there is newly discovered evidence in criminal cases.
CWC v LHL: 2 primary requirements:
(a) there must be no statutory exclusion of the inherent power; and
(b) there must be exceptional circumstances where there is need for the court to use its inherent powers in order for justice to be done or injustice to be averted.
The Judiciary:
Receives prosecutorial protection
- AG’s discretion to take action against alleged offenders (i.e. where publication is produced that scandalises the judiciary by alleging bias on the part of the judge).
- Purpose of this protection is more objective and is rooted in public interest.
The Judiciary:
Roles and Responsibilities
- Duty to give reasons (per Lai Wee Lian v Singapore Bus Service (1978))
a. To produce sound decisions based on the careful dealing of the submissions and the analysis of the evidence to allow lawyers and members of the public to ascertain the basis upon the decision not only in the instant case but also as a template of precedent for future cases.
b. To provide appellate judge the proper material to understand the judgment and to deal justly with any appeals that might go up to him/her.
c. More profound evidence = Greater need for detailed reasoning.
(Thong Ah Fat v PP: Retrial might be ordered if duty to give reasons is not properly discharged)
- Role in the adversarial process:
a. Counsels to lead proceedings with judge merely an observer before making final decision.
(Mohammed Ali bin Johari v PP: Court cannot be seen to be partial)
b. Min qns can be asked, cannot convey impression that judge is predisposed to certain outcome.
(Sandz Solutions (Singapore) v Strategic Worldwide Assets [2014] 3 SLR 562: TJ should consider totality of evidence in determining veracity, reliability and credibility of a witness’s evidence)
- Judicial independence
a. Must be insulated from external pressures and influence.
b. Chan CJ, 2012: Judiciary has never shirked from its role of monitoring legis and exec acts.
