The Role of Judges
Yesterday, we had a most distinguished guest, the Hon. Justice Kirby, a well-known judge from the High Court of Australia[the nation’s highest appelate and constitutional court] visiting the campus to give a talk. The subject matter was the Human Rights Norms and Constitutional Interpretation.
Of course, it is always an honour to meet such a distinguished personality, but the subject matter was even more interesting. In Australia the issue arises because their Constitution, written in 1890, says almost nothing about human rights, and is rather more fixated on tax issues, according to Kirby J [how odd for a constitution… shouldn’t that be a statute or a subsidiary legislation?] Hence when such issues come up to the court, the judges are given the difficult task of interpreting, or not interpreting, the Constitution to mete out justice. Kirby J belongs to the group who gives weightage to the International Convention of Human Rights, and is prepared to take a functional, rather than originalist view of the Constitution.
In respect of human rights, the Constitution of Australia is similar to Singapore’s, in that respect. Our Constitution, for the uninformed, is a conglomeration of three documents, which does not incorporate a proper Bill of Rights, but rather a part named Fundamental Liberties, which is not wide enough to cover a lot of things. There is no anti-discrimination bill here. The judges then, play an important role in the development of law (in this context, about human rights), both due to our common law system and the Montesquian model we follow in the separation of powers. Judges are indeed technically given the judicial independence under the Constitution – whether they have been exercising it or whether they have been pandering to the executive/legislature is another issue.
One of my teachers commented that in any other legislature in the world, the judges automatically considered it part of their role to check the legislature, to balance the interests of the community and that of the individual, to protect the individual from the might of the legislature. Apparently the judges in Singapore do not think that – do they truly abdicate their power, or is that they do not dare use it? Who knows? I am not, by any means saying all the cases have been decided wrongly. If the learned judges can come up with a new duty of care test through Spandeck Engineering v DSTA, the same judicial freedom and intelligent thought should extend to covering politically charged cases and human rights cases.
There are some who say judges should be just interpreters of law, people who read the letter of law, and let the legislature decide what the letters actually are. After all, the legislature is elected, and the judiciary is not – they are handpicked. This, as explained by Kirby J, ignores the reality of the democracy, which is that when the vote is cast, the voter is NOT agreeing to every future policy decision the candidate makes. Not only that, the legislature is not all-wise, nor completely benevolent – in every country around the world, they often do things to stay in power, things that would be extremely unfair to the common man. The judiciary, then play an important role in checking this – knowing the law and its spirit, they should be able to decide whether to uphold it.
Here’s to hoping the likes of Justice Kirby spring up in Singapore.
P.S. Kirby J, during the talk, also came out as a gay man. How cool is that?