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Chief Justice Sundaresh Menon: Inaugural Supreme Court of India Day Lecture

SUPREME COURT OF INDIA DAY LECTURE SERIES
1ST ANNUAL LECTURE

“The role of the judiciary in a changing world”

Key Messages

  1. To discharge their responsibilities, judges must be competent and they must enjoy legitimacy. Today, there are numerous challenges that affect one or both of these essential elements: (a) global geopolitical and economic challenges; (b) the phenomenon of the growing complexity of disputes; (c) challenges arising from greater interconnectedness between jurisdictions; (d) rising barriers against access to justice; (e) the proliferation of disinformation and the devaluation of truth; and (f) a breakdown of trust in public institutions.

  2. These challenges come together to form a “perfect long storm” bearing down on judiciaries across the world. Within the constraints of judicial independence and the separation of powers, judiciaries must urgently mount a robust response to these challenges.

  3. For a start, this response should involve three ways in which the judicial role ought to evolve. First, court systems must become more user-centric, with the courts providing adequate legal information and practical assistance to court users, and engaging in public communications and outreach. Second, judiciaries should work to enhance judicial competencies, by investing in judicial education and training, and pursuing continuous innovation in areas such as increasing the efficiency of the conduct of litigation. Third, judiciaries should promote international judicial engagement, which includes formal and informal collaboration between courts across jurisdictions, as well as the development of a transnational system of justice.

Speech


The Honourable Dr Justice D Y Chandrachud, Chief Justice of India
The Honourable Justices of the Supreme Court of India
The Honourable former Chief Justices of India and former Justices of the Supreme Court of India
The Honourable Attorney-General of India, R Venkataramani
Distinguished guests
Ladies and gentlemen

1. It is truly a great honour for me to be invited to address you as part of the first Supreme Court of India Day Celebrations, commemorating the inauguration of this august institution on 28 January 1950. I thank the Honourable the Chief Justice for the invitation, I thank my friend Justice Sanjay Kishan Kaul for the very generous introduction, and I thank the Supreme Court for the generous hospitality that has been extended to me and to my colleagues in connection with this visit – an especially delightful one, coming as it does following three years of considerable disruption for all of us. The Supreme Court of India is among the busiest courts in the world, and its Justices among the hardest working judges because of the immense case load they carry. I saw this myself when I was honoured to observe proceedings yesterday in the Chief Justice’s court alongside him. It is therefore a tremendous privilege for me to have spent several hours with the Chief Justice and a number of his colleagues and I very deeply appreciate all that they have done to welcome me to India.

2. Over the course of the last 73 years, when the Supreme Court has rendered justice according to the usages, laws and Constitution of India, the world has changed immensely. But in many ways, the fundamental setup of our courts – whether here in India, in Singapore, or for that matter in most other places around the world – has largely remained the same. We are charged with the same constitutional responsibility to do justice, and we take a broadly similar oath of office to resolve controversies of all sorts according to law, without fear or favour, affection or ill-will. The rule of law, which is a fundamental pillar of our systems of government, depends on this. Yet, it is an inescapable reality that changes are taking place in the world around us that are dramatic both in rate and in scope. This raises the question of how we should square our unchanging, unyielding judicial responsibility with the relentlessly dynamic world that we find ourselves in today. How should we envision the role of the judiciary in this changing world?

3. That is the subject that Chief Justice Chandrachud has invited me to address; and this opens an extremely timely conversation, if I may say so. Today I will propose a vision for a future-ready judiciary in four parts: First, I will briefly reiterate what is demanded of us in our judicial role. This will set the context for the subsequent discussion. I will then describe what I will refer to as a “perfect long storm” facing judiciaries around the world. In the third part of my remarks, I will explain why we, judges, must respond urgently to this series of challenges precisely because of the effects of these changes on our ability to discharge our responsibility; and finally, I will sketch out some ways in which the functioning of the judiciary could evolve to meet these challenges. Even though judiciaries may not be equipped or mandated to address some of the issues the world is facing, my suggestion will be that we nonetheless can and must refine and modernise our vision and understanding of the judicial role, if we are to remain able to administer justice effectively and to help maintain order and legitimacy in our societies.

I. The Judicial Role

4. Let me begin by re-iterating some basic notions of the judicial role. In Marbury v Madison,(1) Chief Justice John Marshall famously declared that it was was “emphatically the province and duty of the Judicial Department to say what the law is”. (2) To those of us raised in a constitutional framework based on the separation of powers, this is foundational. Parliament makes the law and the Executive branch carries it out. But the imperfections of human foresight, the limitations of language, the constraints of the Constitution, and the human tendency to try to get what one wants, all come together to give rise to disputes over what the law is and therefore, over whether one is acting lawfully. When this happens, it is the courts that must decide. This, at its core, is our role: to resolve the many disputes that are part and parcel of societal life. Indeed, as Chief Justice Chandrachud recently observed, “it is in the seemingly small and routine matters involving grievances of citizens that issues of moment, both in jurisprudential and consequential terms, emerge.” (3) When the Judiciary functions well, it serves as a stabilising force in society, by easing tensions and giving final and authoritative directions to help all of us get through these numerous daily conflicts. When it functions well, the Judiciary serves as part of the glue that holds the various moving parts together. To discharge this role, there are perhaps two core requirements:

(a) First, those appointed must have the competence and capacity to discharge the responsibility that is cast upon them.

(b) Second, their status as the arbiters and umpires of society has to be accepted by the subjects of their decisions. As Alexander Hamilton famously noted, we hold neither the sword nor the purse, only judgment.(4) Consequently, a judiciary needs legitimacy to function well, and this is secured when it enjoys the confidence of the public. Gaining that confidence is a function of many factors: Does the public generally believe that we are acting honestly, wisely, impartially, independently and with integrity? Does it believe that we are competent to discharge our duties? Are we regarded as being out of touch and existing to serve the needs only of the wealthy and powerful? Or does the public believe that we are here to serve justice and that we are resolute in our commitment to bring down whatever obstacles stand in the way?

5. I ask you to keep these two requirements – competence and legitimacy – in mind as we turn to examine the challenges that judiciaries around the world now face.

II. A perfect long storm

6. I speak to you in what might be described, perhaps with some optimism, as the aftermath of the COVID-19 pandemic. But it is striking that when future historians look back at this time, the pandemic might only be one amongst a number of world-changing events that have taken place over the past few years. This has been a time when we have witnessed dramatic shifts in the global political environment, with the outbreak of what might prove to be a long-drawn war in Europe. Lurking in the background are even graver threats, such as the prediction by the Intergovernmental Panel on Climate Change that we are at the precipice when it comes to climate change.(5) Singapore’s Senior Minister Tharman Shanmugaratnam recently suggested that the world faces a “perfect long storm” of global challenges, with geopolitical instability, global health security and the climate change crisis being joined by the threat of stagflation and the risk of growing economic and social inequality.(6) He called this a “perfect long storm”, because he considers these to be a confluence not of random shocks, but of structural issues and insecurities that will be with us in the long term.

7. These global challenges concern us as judges, because they will have an impact on one or both of those essential elements of our work – competence and legitimacy. They place greater demands on the level of competence and the kinds of competencies that judges will need in order to be able to do their work, and they also add significantly to the pressures threatening to undermine the legitimacy of public institutions, including courts. I have identified six specific types of challenges, most of them arising directly or indirectly from these global challenges, which have particular relevance to courts and legal systems. They come together to form what we might think of as a “perfect long storm” bearing down specifically on justice systems around the world.

A. Challenges affecting our ability to do our work competently

8. The first three sets of challenges have a direct impact on the ability of judges to competently discharge their duty of adjudicating disputes. They revolve around the growing complexity of the disputes that will come before us. Let me elaborate upon them in turn.

i. New legal issues arising from global challenges

9. First, the global challenges I described earlier will give rise to new legal issues. Though these challenges might first and foremost be political problems, almost all of these problems also have a legal dimension, which means that the responses to these challenges, whether in the form of executive action, legislation, or private initiatives, will sooner or later give rise to disputes that will end up before the courts. The climate crisis provides an obvious illustration of this, with environmental regulation, green financing and corporate governance being just some examples of a wide gamut of potential legal issues in this area. And even inaction in the face of these global challenges is liable to give rise to litigation. In the area of climate change, there are prominent examples of private individuals and entities bringing governments to court for omitting to do enough to curb carbon emissions, with notable judgments having been issued in favour of such claimants by the highest courts in the Netherlands and Germany. (7) If these global challenges are here to stay for the foreseeable future, all judiciaries will have to be ready to deal with their fact patterns and legal implications. We can expect such disputes to be complex, demanding and time-consuming, and to be equipped to cope with them, courts will have to be prepared to develop new legal concepts and tools, as well as new ways of deploying existing legal principles and practices.

ii. The complexification of disputes

10. The second type of challenge is what I call the complexification of disputes.(8) This refers to complexity that arises not from a specific subject-matter or factual pattern, but rather to the growing complexity of disputes generally, stemming primarily from the rapid rate of advances in science and technology. There are two facets to this trend: growing technical complexity, and growing evidential complexity.

11. Technical complexity comes from the increasing amount of scientific and technological knowledge that adjudicators will need to grapple with. The world around us is being transformed by technology. Contracts are entered into using algorithms and vehicles are learning to drive themselves, which means that familiar legal concepts premised on the actions of human agents can now give rise to uniquely complex legal issues. Advances in science can similarly transform ordinary questions, such as a person’s state of mind, into potentially complex inquiries into fields such as psychiatry.(9) So too has the evidential complexity of disputes exploded, because our reliance on electronic communications and systems, and the massive amounts of data they now collect, means that even a modest transaction can easily generate volumes of documentary evidence.(10)

12. The complexification of disputes gives rise to the very real possibility of cases that are so complex or voluminous that they strain the ability of any single human adjudicator to process.(11) In one construction arbitration, for instance, the tribunal reportedly received written submissions extending to 10,000 pages of text.(12) Applying an estimate of 6 minutes to read and digest each page, it would take an arbitrator 1,000 hours, or about 6 working months, to read the submissions, to say nothing of the time it would take her to evaluate them in the light of the rest of the material! But even more routine cases may prove significantly more demanding to try using conventional methods, thus increasing the cost of litigation and compromising the expeditious disposal of cases. That is aside from the personal toll that working on such cases takes on lawyers and adjudicators. As science and technology continue their inexorable advance, these challenges will only grow. We cannot rely solely on traditional case management tools to deal with the problem of complexification; instead, judiciaries may have to consider new and potentially radical ways to contain and downsize disputes, or face a real crisis of capacity.

iii. The law’s growing interconnectedness

13.  A third set of challenges come from the fact that legal issues increasingly disregard jurisdictional boundaries. This is because we are becoming more economically interconnected than ever before: despite the well-publicised phenomenon of countries around the world shutting their borders and turning inwards at the start of the pandemic in early 2020, by the end of that year transnational trade had recovered to pre-pandemic levels, and has continued to grow since then.(13) 

14. The volume of international commercial disputes that have connections with multiple jurisdictions will therefore keep rising. But international commercial dispute resolution is by its nature decentralised: there is no single pre-determined “control centre” for each dispute. Instead, each court has the prerogative to rule on jurisdictional disputes in the proceedings brought before it, including questions of whether the dispute is better brought before another court or arbitral tribunal, or has already been decided in another forum. In addition, we are sure to encounter new legal issues in areas ranging from cryptocurrency to environmental, social and governance (or “ESG”) regulation and litigation, all of which rarely heed jurisdictional boundaries.

15. The case for convergence or harmonisation in many of these areas is obvious: if different jurisdictions applied their own idiosyncratic standards in deciding challenges against arbitral awards, or the legal status of new types of assets, for instance, this would greatly increase the cost of compliance and transnational dispute settlement, and therefore stymie cross-border commerce. This is why in areas like arbitration and mediation, the international community of states has come together to ratify treaties or to develop model laws.(14) But even then, different courts do not always apply these instruments in a uniform way.

16. The short point is that judges will increasingly need to be sensitive to developments in the laws of other jurisdictions in order to properly decide disputes. Beyond this, they will also increasingly need to actively cooperate with their foreign counterparts in disputes that need effective concurrent cross-border management, such as the growing field of complex cross-border insolvencies.(15) But courts have traditionally had neither the inclination nor the avenues to communicate and collaborate across jurisdictions. This is something that I suggest we all need to work on, and I will come back to this point a little later.

B. Challenges affecting our legitimacy 

17. I turn to the next three sets of challenges which will directly affect the legitimacy of the courts. These, too, stem ultimately from global challenges such as rising inequality, the risk of stagflation, and political instability, which we can expect to lead to a steady growth in disaffection and polarisation in societies. A recent report by Oxfam noted that the richest 1% captured nearly two-thirds of all the new wealth generated since the start of the pandemic.(16) Some commentators argue that this extreme disparity in wealth is being created not through innovation or production but rather through the exploitation of workers and consumers.(17) Whether or not the charge of capitalist excess is true, what should most immediately concern us as judges is the reality that if the unequal accumulation of wealth continues to sharpen, we can expect grave challenges in securing access to justice for those left behind, who will feel increasingly marginalised and disillusioned with the justice system. Sharp economic polarisation in societies inevitably contributes to the polarisation of public discourse, and this is also accompanied by a phenomenon which might be called “truth decay”. Together, they sow the seeds of a series of challenges that threaten to seriously undermine the legitimacy of justice systems around the world, and it is these that I will now examine.

i. Access to justice 

18. I first turn to the challenges surrounding access to justice, which is being impeded not only by growing inequality, but also by the increasing complexity and cost of dispute settlement, and pressures on the resourcing of justice systems and of legal aid.

19. One manifestation of this trend is the steady increase in the number of self-represented litigants who navigate our justice systems.(18) But this belies a much larger phenomenon of people with legal needs that never see the light of day: a study by the World Justice Project suggests that there are 1.4 billion people globally who are unable to obtain justice for civil legal problems such as property, matrimonial or employment disputes.(19) I have suggested elsewhere that the difficulties faced by potential litigants seeking to access justice consist of three facets: a physical gap, which comes from distance or other physical difficulties in accessing the courts; a resource gap, which comes from the financial and other costs of navigating the justice system; and a literacy gap, which comes from a lack of appreciation that certain problems are legal problems with legal solutions.(20) Together, they constitute a justice gap. Its existence is a pressing concern, because nothing is more corrosive to public trust in our justice systems than the perception that those systems are the preserve of a privileged few, and priced out of the reach of ordinary people.

(ii) Truth decay

20. A large part of the literacy gap comes from not knowing how to access the courts. A significant contributor to this is the “folklore” that often surrounds the law in the popular consciousness and which gives entirely incorrect impressions of how it operates. And it is becoming harder than ever to correct such misconceptions, because of the next set of challenges – truth decay. This refers to the proliferation of disinformation and the devaluation of truth in our societies,(21) which attacks the justice system in at least two specific ways.

21. First, truth is the foundation upon which courts do their work. As Justice Stephen Gageler of the High Court of Australia has observed, the rule of law depends on our courts making factual findings that are reliable, because justice according to law requires applying the law to the true facts.(22) And while there does not appear to have been empirical studies on this, a number of recent examples suggest that truth decay is spreading into court proceedings. In Singapore, our courts have seen a rise in partisan and unreasoned expert opinions, especially, for instance, in psychiatric evidence adduced in criminal cases.(23) Truth decay can also be seen in the conduct of some advocates, who have in some cases attempted to conceal facts from the courts,(24) or to delay proceedings on spurious grounds.(25)

22. Second, it is essential that the findings of the courts are accepted in the public sphere as generally reflecting the truth. If that is not the case, then our rulings become merely another voice in an endless clamour of opinions on the merits of disputes. This is exacerbated when baseless allegations are made against judges suggesting that their rulings merely reflect their personal agendas. Perhaps the most notorious example is the Daily Mail headline in the United Kingdom branding judges in the Miller case as “Enemies of the People”, implying that they had sought to thwart the public’s desire to leave the European Union.(26) More recently, when the draft majority opinion of the US Supreme Court in the Dobbs case(27) was leaked, a New York Times article purported to “fact check” passages in the draft opinion that recounted the policy arguments made by the petitioners.(28) The subtext seemed to be that the author of the draft opinion had distorted the truth in order to find for the petitioners and advance an agenda.

23. As a result of its creep into our courtrooms, truth decay diminishes the standing of judgments and of the courts, and this ultimately undermines the stabilising work of the courts in upholding the rule of law and maintaining order in society.

(iii) The breakdown of trust

24. This brings me to the final set of challenges, which is in many ways the culmination of all of the foregoing challenges: this is the increasingly evident breakdown of trust in public institutions as a whole. The 2022 Edelman Trust Barometer found that distrust was now “society’s default emotion”; in many democratic societies, less than half the people surveyed said they trusted institutions such as the government and the media. (29) This may well be due to causes such as truth decay, but it is also likely to be due to the sense that public institutions are failing to deliver on their missions. We should not think that courts can stand apart from other institutions when it comes to this deficit of trust.

25. The potential breakdown of trust in the courts is arguably the most critical of all the challenges that we face, because the legitimacy of the judiciary rests upon a broad public acceptance that we are reliable truth-finders seeking to do justice according to law. If this trust falls away, then the courts are left to operate solely by the force of state power, and the belief in and respect for the rule of law in our societies will collapse.

III. The role of the judiciary

26. I therefore suggest that judiciaries are facing the onset of a number of discrete challenges which strike at either or both of the core requirements for the discharge of our judicial duties – namely, competence and legitimacy.

27. These challenges come together to form a perfect long storm for the judiciary in the same way that Senior Minister Tharman has described those facing the world at large: they are a confluence of lasting threats, not random blips. And they give rise to a matter of serious public concern, because the judiciary plays a crucial role in underwriting the legitimacy of our social, economic and political institutions, by ensuring that their activities abide by the law and that the law remains relevant under changing circumstances. It is therefore apt to characterise the challenges facing the judiciary as a “perfect storm”, because they threaten the rule of law and ultimately our institutions as a whole.

28. The question might nonetheless be asked whether judiciaries can or should respond: after all, are problems like truth decay and climate change not political problems in need of political solutions? To my mind, the answer is obvious. But the concern is worth addressing, because it stems from a number of long-standing strictures that have traditionally defined and limited the judicial role.

29. It has been said that judges “traditionally held themselves aloof from the public.”(30) Thus, there are principles warning judges against commenting on government policy, defending their judgments publicly, or engaging with the media.(31) Furthermore, the courts only act within the limits of their understanding of their proper constitutional role, in line with the separation of powers.

30. Even though the principles underlying these limitations – those of judicial independence and the separation of powers – are well-justified, they do not mean the judiciary should remain completely aloof. They do not go so far, and the strictest views of these prohibitions have long fallen out of fashion. Thus, while judges today generally continue to let their judgments speak for themselves, most judiciaries no longer see anything wrong with other facets of public engagement that spread awareness of judicial work. For instance, the Chief Justice of Canada holds an annual press conference,(32) while members of the UK Supreme Court have given television interviews discussing their approach to work and their home life.(33)

31. These shifts in judicial attitudes reflect an evolution and refinement of our understanding of the judicial mission. I suggest that there are three aspects of this evolving vision of the judicial role that explain why we, as judges, must respond, as best we can, to the perfect long storm.

32. First, beyond sitting as referees over disputes, our true mission is the fair and efficient administration of justice so as to uphold the rule of law. To look at this mission from a purely adjudicative, or process-based, view, is to miss a much larger picture, which is that the administration of justice takes place within a system, and what an individual judge does when presiding over an individual case is only one part of how this system delivers justice. It is the effectiveness of the system as a whole that determines whether access to justice is available, whether judges are equipped with adequate expertise and tools, and whether public confidence in the judiciary is secured. We should therefore adopt a systemic perspective of the judicial role, in which the judiciary evolves from a body of discrete adjudicators to become an institution that excels in the administration of justice.

33. Second, by unpacking the perfect long storm into its constituent parts, we can see that the challenges looming on the horizon are not merely a morass of political entanglements for the other branches of government to solve. Even though judiciaries cannot address their root causes, these challenges each have legal and operational dimensions that directly or indirectly impact the judiciary. As a result, these matters will enter our domain, and we are duty-bound to mount a response.

34. Third, as the primary operators of the justice system, judges are best placed to act, albeit within the applicable constraints. From our own perspective as judges, we should also recognise the value in being active participants rather than mere passengers in transforming our justice systems. And because change is often resisted when it is imposed from the outside, by far the best way of achieving and maintaining the changes that need to be made to our justice systems is by having judges actively participate in the process.

35. Once we look at our judicial role from these perspectives, I suggest we will see that impartiality in the courtroom, while fundamental, is no longer synonymous with inaction in the face of the perfect long storm. On the contrary, we must act urgently and decisively to mount a sufficiently robust response to these challenges, while drawing up a refined set of boundaries for the judicial role.

IV. Navigating the tempest

36. I therefore turn to the question of how we should go about this herculean task. First, I think it is crucial that we take a systematic approach. Many of these challenges appear so vast and foreboding, with root causes beyond our competence, that we risk losing steam or going off track if we respond in a piecemeal or reactionary way. We must develop a clear vision of the evolving role of the judiciary, so that we refocus our efforts around what we can do to become institutions that excel in the administration of justice. When we look at it in this way, I suggest, for a start, that there are three key themes that should shape our vision of the judicial role: first, building a user-centric court system; second, enhancing judicial competencies; and third, promoting international judicial engagement. Let me elaborate on these in turn.

A. Building a user-centric court system

37. The first theme recognises the importance of putting ourselves in the shoes of the public, who are our users and our constituents. Ultimately, the justice system does not exist to serve the convenience of judges and lawyers. Instead, we should adopt a user-centric approach to its design. Building a user-centric court system is an important way for the judiciary to secure public trust and legitimacy. There are two facets of the judicial role that I suggest should evolve in order to achieve this: first, courts should take seriously their assistive responsibility towards their users; and second, we should regard public communications and outreach as one of our core functions.

i. The assistive responsibility

38. Taking these in turn, first, we should recognise that even as the courts must remain impartial, they also have an assistive responsibility towards court users – and in particular, litigants in person. Such self-represented litigants are a fact of life for judiciaries around the world, and they face significant barriers that impede their ability to access justice because legal systems and court processes have traditionally been designed with lawyers and judges rather than lay users in mind. That is simply not fit for purpose when the system is now accessed by so many litigants in person. To help bring down these barriers, the courts should draw a distinction between impermissible legal advice on the one hand, and the provision of legal information and practical assistance on the other, and not shy away from the latter.

39. One way the courts can achieve this at scale is by publishing guides and information packs for lay court users. This is an approach that the Singapore courts have embraced. For instance, our State Courts have published the Guidebook for Accused in Person,(34) which sets out in considerable detail what accused persons can expect at each stage of criminal proceedings, and how they might prepare themselves. Our Family Justice Courts, meanwhile, have published the Family Orders Guide,(35) which helps self-represented litigants cope with the alien task of drawing up draft orders of court. The Singapore courts also maintain a single website which provides self-help procedural guides for civil, family and criminal proceedings.(36) We can also discharge our assistive responsibility to lay court users by making court processes easier to understand and navigate, by doing away with legal jargon and simplifying our procedures.(37)

40. We should especially pay attention to the vast potential of technology to help discharge our assistive responsibility. Assistance which in the past had to be provided face-to-face by court staff and volunteers can be scaled up without limit and at relatively little cost if we find the right digital tools. Such tools can provide practical assistance to court users: for example, the Divorce eService created by our Family Justice Courts guides self-represented litigants through the entire process of preparing and filing divorce papers.(38) Digital tools can even provide legal information previously available only by consulting a professional: for instance, Motor Accident Claims Online (“MACO”), an online tool launched by the State Courts and the Singapore Academy of Law, enables potential litigants to get a free preliminary assessment of the likely allocation of fault and award of damages. There is immense further potential for such digital tools to radically change the way justice is accessed in the most commonly encountered kinds of disputes.

ii. Public communications and outreach

41. Second, it is important for judiciaries to see public communications and outreach as an essential part of their role. Studies have shown that public knowledge about the courts is closely linked to public trust in judicial institutions.(39) The courts should therefore take up the task of spreading awareness of their work. I have already mentioned the annual press conferences held by the Chief Justice of Canada as a prime example of such proactive outreach. And there are other examples. The Singapore Supreme Court publishes case summaries of significant decisions on our website(40) and on social media, and we compile annual reports setting out the judiciary’s key work.(41) We also collaborate with other stakeholders, such as law schools, to further our outreach efforts.(42) But outreach does not only involve delivering our messages to the public. User centricity requires us to continuously invite feedback from court users. We therefore conduct regular user surveys to understand how court systems and processes can be improved.

42. These are some just of the ways in which we can narrow the justice gap, combat disinformation, and maintain public trust.


B. Enhancing judicial competencies

43. I turn to my second theme, which is enhancing judicial competencies. I suggest we will have to raise the capabilities of our judiciaries if we are to keep up with the underlying drivers of complexification, to reduce barriers to accessing the courts, and to be prepared to face the new legal issues that are upon us. This is key to allowing us to sustain our legitimacy because it will give the public confidence that we can discharge our responsibilities. I suggest that this should translate into a renewed emphasis on two facets of the judicial role: first, we should invest significantly in continuing judicial education and training; and second, we should continuously pursue innovation in the justice system.

i. Judicial education and training

44. Turning to the first point, judiciaries must take responsibility for the education, training and development of those in their ranks. The historical view that judges required no training and somehow emerged fully formed at the moment of their appointment has long been discarded.(43) Instead, we now accept that continual training and upskilling are a necessary part of a judicial career. This is not least because of the new challenges that are emerging in the perfect long storm, which place new demands on judges in terms of legal knowledge, scientific and technical understanding, case management, and even awareness of other legal systems. These programs will increasingly need to incorporate a significant element of interdisciplinarity. In Singapore, we established the Singapore Judicial College (“SJC”) to deliver judge-led judicial education and training, and have been continually upgrading its capabilities in order to equip our judges to meet these demands. And for these initiatives to work, judges themselves must fully embrace the need for lifelong learning. Besides our judges, we also need to develop our court administrators to excel, innovate, and lead, because they do much of the work of running our courts and interfacing with court users.

 ii. Innovation in the justice system

45. But enhancing judicial competencies on an individual level will not be enough: we need to raise the floor for legal practice as a whole and improve the functioning of the litigation process at a systemic level. This requires the judiciary to become innovators within the justice system, so that we can employ best practices and explore new and promising solutions.

46. In the Singapore courts, we have pursued a number of priorities in procedural reform, of which I will touch on just two. The first is to improve access to justice by streamlining procedures and deterring inefficient litigation practices. Following a multi-year study led by one of my colleagues, Justice Tay Yong Kwang, we rewrote our civil procedure rules. The new Rules of Court 2021 are governed by five overarching Ideals stated clearly at their beginning: fair access to justice, expeditious proceedings, cost-effective and proportionate processes, the efficient use of court resources, and fair and practical results suited to the needs of the parties.(44) These Ideals animate the management of cases by judges. To achieve this, a high degree of flexibility is built into the Rules, with active judge-led case management at its core.

47. Our second priority is to develop and promote practices and tools that will help contain and downsize complex disputes. For instance, to help contain disputes, the new Rules of Court empower our courts to order parties to attempt mediation.(45) And to downsize exceptionally complex disputes, we introduced an optional protocol in the Technology, Infrastructure and Construction List of the Singapore International Commercial Court, which can streamline the adjudication of disputes comprising dozens or even hundreds of related claims.(46)

48. To sustain these improvements, we will need to keep them constantly under review, and to keep our minds open to other new and promising practices. And we will have to continually consider what further knowledge or skills we need to enable us to meet emerging challenges. This is just part and parcel of taking charge of our own development and improvement so as to retain our competence to discharge our responsibilities.

C. Promoting international judicial engagement

49. The third and final theme is promoting international judicial engagement. Gone are the days, I suggest, when judiciaries could operate in jurisdictional siloes, unconcerned with legal systems and courts beyond their shores. Instead, it is both necessary and highly beneficial today for judiciaries to engage with their counterparts from other jurisdictions: and let me tell you that in just one day spent at the Supreme Court and at the Delhi High Court I have learnt so much. I suggest that this new aspect of the judicial role again has two facets that cut across the goals of improving competence and securing legitimacy: first, engaging in judicial diplomacy; and second, supporting the development of a transnational system of justice.

i. Judicial diplomacy

50. By judicial diplomacy, I refer to formal and informal communication and collaboration between courts in different jurisdictions. Informal cooperation between judiciaries has become relatively widespread in recent years, with the Conference of Chief Justices of Asia and the Pacific, the Judicial Seminar on Commercial Litigation and the Judicial Roundtable on Commercial Law being just a few examples of such meetings that my colleagues and I actively participate in. These gatherings allow us to pool our collective experience towards addressing legal issues that are prevalent across jurisdictions. That is one of the reasons why I regard the invitation to address you today as so very special.

51. Formal cooperation between judiciaries, once practically unheard of, has also gained traction. The Supreme Court of Singapore, for instance, has entered into Memoranda of Understanding with a number of foreign courts in order to allow each court to refer questions of foreign law to its counterpart in the foreign jurisdiction,(47) greatly simplifying the task of ascertaining a complicated point of foreign law. We also helped develop and have adopted the Judicial Insolvency Network (or “JIN”) guidelines to enable court-to-court communications,(48) which is an extremely important case management tool in complex cross-border insolvencies.

52. Perhaps the highwater mark of international judicial exchange is the modern-day phenomenon of “travelling judges”. These are jurists who travel from their home jurisdictions to serve on a court in a different jurisdiction.(49) Courts that have travelling judges in their ranks, such as the Singapore International Commercial Court, are able in this way to assemble a particularly deep bench of eminent jurists from around the world, and benefit from the exchanges of experiences and expertise that this brings. One of your erstwhile colleagues, Justice Arjan Sikri, now graces our Bench as an International Judge, and he makes an extremely valuable contribution to the Court that goes well beyond the work of hearing cases.

ii. Developing a transnational system of justice

53. But reaching further than an international network of judges and courts, I suggest that we should work towards an even more ambitious goal: the proactive development of the transnational system of justice. On a number of recent occasions,(50) I have argued in favour of recognising and developing such a transnational system in the area of commercial law, by viewing the many discrete players and processes that regulate transnational commerce as though they were part of a system rather than a mere compilation of rules. In practice, we achieve this by promoting the convergence of substantive and procedural laws wherever possible. This will have the undoubted benefit of reducing the uncertainty and costs involved in transnational commercial activity.

54. Within a transnational system of justice, courts around the world can work in dialogue with each other as we develop and promote the legal norms that we will need in order to address the perfect long storm, including norms in areas such as climate change, jurisdictional conflicts, and natural justice. This would also allow us to strengthen the international rule of law, thus helping to facilitate and sustain the open flow of goods and services across borders, and enhancing the ability of institutions around the world to respond to the global challenges that we face.

55. The irreversible effects of globalisation have made us all participants on the transnational plane. Judiciaries therefore should not underestimate the importance of the transnational element of their work. Instead, we should refine our vision of the judicial role to encompass international engagement, and this would make our judiciaries more effective, and at the same time promote public trust.

V. Conclusion 

56. I offer these three themes as a base for developing a blueprint for how judiciaries can shore up their competence and legitimacy in the face of the perfect storm that is looming:

(a) First, redoubling our efforts to build a user-centric court system, by recognising that courts have an assistive responsibility towards court users, and by engaging in public communications and outreach.

(b) Second, working tirelessly to enhance judicial competencies, by investing in judicial education and training, and pursuing continuous innovation in the justice system.

(c) Third, actively promoting international judicial engagement, by engaging in judicial diplomacy with our counterparts across the world, and contributing towards the development of a transnational system of justice.

57. Finally, we should see that cutting across this revitalised vision of the judicial role is a need for strong judicial leadership. To develop the kind of systematic approach that is called for, we need judicial leaders to develop an overarching vision and set the tone. This should not be seen as the exclusive preserve of the heads of judiciaries: judges and indeed court administrators at all levels need to be leaders within their own domains in order to drive and sustain change at this scale.

58. At the start of my address, I painted a rather bleak picture of the perfect long storm approaching judiciaries around the world: we face global challenges, the complexification of disputes, the challenges arising from greater interconnectedness between jurisdictions, rising barriers against access to justice, truth decay inside and outside the courtroom, and an impending breakdown of trust in public institutions. Meeting these challenges will require a multipolar effort, and while the courts cannot lead the charge against their root causes, by refining our understanding of our role as judges, we can tap upon the strength and expertise of judicial institutions and redirect them towards responses to these challenges that accord with the constitutional role of the judiciary. We should aim to become institutions that excel in the administration of justice, by building user-centric court systems, enhancing judicial competencies and promoting international judicial engagement. This is a critical mission: if we fail, the perfect long storm portends a breakdown of the rule of law. But if judiciaries are successful in this endeavour, they will help guide their societies through the tempest.

59. Thank you very much.


 

I am deeply grateful to my colleagues, Assistant Registrars Huang Jiahui and Tan Ee Kuan, for all their assistance in the research for and preparation of this address.

(1) 5 US 137 (1803) (“Marbury v Madison”).

(2) Marbury v Madison at 177.

(3)Iqram v The State of Uttar Pradesh & Ors Crl.A. No. 2319/2022 (16 December 2022) at [2].

(4)  Alexander Hamilton, “The Judiciary Department”, The Federalist Papers: No 78 (1788).

(5)  See Matt McGrath, “Climate change: IPCC scientists say it's ‘now or never’ to limit warming”, BBC News (4 April 2022) at https://www.bbc.com/news/science-environment-60984663.

(6) Tharman Shanmugaratnam, “Confronting a Perfect Long Storm”, Finance & Development (June 2022) at p 4.

(7) These are the judgments of the Supreme Court of the Netherlands in The State of the Netherlands v Urgenda Foundation, ECLI:NL:HR:2019:2007 (20 December 2019), and of the Federal Constitutional Court of Germany in Neubauer, et al v Germany (1 BvR 2656/18), Order of the First Senate of 24 March 2021. An example of an unsuccessful challenge is the first-instance decision of the Federal Court of Australia in Minister for the Environment v Sharma (2022) 400 ALR 203. There is another climate-related action presently pending before the Federal Court of Australia in Pabai Pabai & anor v Commonwealth of Australia VID622/2021.

(8) Sundaresh Menon, “The Complexification of Disputes in the Digital Age”, Goff Lecture 2021 (9 November 2021) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-26th-goff-lecture-2021 (“The Complexification of Disputes”).

(9) See “The Complexification of Disputes” at paras 9–10.

(10) See “The Complexification of Disputes” at paras 17–20.

(11) See “The Complexification of Disputes” at paras 26–34.

(12) See “The Complexification of Disputes” at para 25, referring to an example cited in Jörg Risse, “An inconvenient truth: the complexity problem and limits to justice” (2019) Arbitration International 291 at 292.

(13) See OECD, “International trade during the COVID-19 pandemic: Big shifts and uncertainty”, OECD Policy Responses to Coronavirus (COVID-19) (10 March 2022) at https://www.oecd.org/coronavirus/policy-responses/international-trade-during-the-covid-19-pandemic-big-shifts-and-uncertainty-d1131663.

(14)  See Sundaresh Menon, “The Law of Commerce in the 21st Century: Transnational commercial justice amidst the wax and wane of globalisation”, lecture hosted by the University of Western Australian Law School and the Supreme Court of Western Australia (27 July 2022) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-address-delivered-at-the-lecture-hosted-by-the-university-of-the-western-australia-law-school-and-the-supreme-court-of-western-australia (“The Law of Commerce in the 21st Century”) at paras 23 and 31.

(15) Sundaresh Menon, “SIFoCC playing its part as a cornerstone of a transnational system of commercial justice”, keynote address at the 4th Full Meeting of the Standing International Forum of Commercial Courts (20 October 2022) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-keynote-address-delivered-at-the-standing-international-forum-of-commercial-courts-2022 (“SIFoCC playing its part”) at paras 30–32.

(16) Oxfam, “Survival of the Richest” (January 2023) at p 8.

(17) See, eg, Nesrine Malik, “Look at how the 1% are doing right now, and tell me the system isn’t rigged”, The Guardian (23 January 2023).

(18)  See Jaclyn L Neo and Helena Whalen-Bridge, Litigants in Person: Principles and Practice in Civil and Family Matters in Singapore (Academy Publishing, 2021) at para 1.12 (citing studies in the United States, England and Wales, Australia and New Zealand).

(19) World Justice Project, “Measuring the Justice Gap” (2019) at https://worldjusticeproject.org/our-work/research-and-data/access-justice/measuring-justice-gap, at pp 13–14.

(20)  Sundaresh Menon, “Technology and the Changing Face of Justice”, keynote lecture at the Negotiation and Conflict Management Group ADR Conference 2019 (14 November 2019) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-keynote-lecture-delivered-at-the-negotiation-and-conflict-management-group-(ncmg)-adr-conference-2019-technology-and-the-changing-face-of-justice-on-14-november-2019, at paras 11–27.

(21)  See Sundaresh Menon, “After the Fall of Babel: The Courts in a Post-Truth World”, speech at the Supreme and Federal Court Judges’ Conference 2023 (23 January 2023).

(22) Stephen Gageler, “Truth and justice, and sheep” (2018) 46 Australian Bar Review 205 at 207.

(23) One expert sought to absolve himself of his duty to the Court to state the truth, with a caveat that his report was contingent on the accused person’s account being true: see Wong Tian Jun De Beers v PP [2021] SGHC 273 (“Wong Tian Jun De Beers”) at [24]. In another case, the authors of a report appeared to have attempted to veil the lack of reasoning therein with the phrase “in our professional opinion”: see Kanagaratnam Nicholas Jens v PP [2019] 5 SLR 887 (“Kanagaratnam”) at [31]. No reliance was placed on these expert reports: see Kanagaratnam at [40] and Wong Tian Jun De Beers at [28]. In another case, Ho Mei Xia Hannah v PP and another matter [2019] 5 SLR 978, the Court found the expert to be “a partisan witness who sought to confirm his own bias” and whose “attitude towards the truth was cavalier”: at [52], [55].

(24) Tan Ng Kuang Nicky v Metax Eco Solutions Pte Ltd [2021] 1 SLR 1135, where counsel from two reputed law firms and their clients were involved in an effort to conceal the fact that the dispute had been settled, ostensibly because they wanted to obtain judicial guidance on a point of law.

(25) A good example is in Malaysia, where the lawyers for the former Malaysian prime minister Najib Razak made multiple attempts to postpone his final appeal hearing, by applying to discharge themselves at the eleventh hour, alleging that the Chief Justice of Malaysia was biased, and refusing to make submissions – conduct which was roundly condemned by the Malaysian Bar as abusing the justice system: see Malaysian Bar, “Abuse of Process Brings Disrepute to Our Justice System”, press release (19 August 2022).

(26) This was in response to the ruling of the Divisional Court at first instance in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] 2 WLR 583.

(27) Dobbs v Jackson Women’s Health Organization 142 S.Ct. 2228 (2022).

(28) Linda Qiu, “Assessing the Claims in the Alito Draft Opinion Overturning Roe”, The New York Times (11 May 2022) at https://www.nytimes.com/2022/05/11/us/politics/alito-opinion-roe-fact-check.html. The article stated that the draft opinion presented "claims frequently made by opponents of abortion … as indisputable facts while omitting context and counterarguments”, and “made or quoted assertions about fetal development, abortion procedures and international laws that have been disputed or are open to interpretation”.

(29) See Edelman Trust Barometer 2022: The Trust 10 at  https://www.edelman.com/sites/g/files/aatuss191/files/2022-01/Trust%2022_Top10.pdf.

(30) An observation made by the former Chief Justice of Canada, Beverley McLachlin, in “The Role of Judges in Modern Society”, remarks at the Fourth Worldwide Common Law Judiciary Conference (5 May 2001).

(31) See, eg, Lord Dyson, keynote address at “Beyond the Bench”: Newcastle Law School seminar (15 September 2022) (“Beyond the Bench”).

(32) Richard Wagner, opening statement at the Chief Justice of Canada’s annual press conference (18 June 2020) at https://www.scc-csc.ca/judges-juges/spe-dis/rw-2020-06-18-eng.aspx. In January 2023, the Chief Justice of Malaysia also held a press conference at the Opening of the Legal Year ceremony: see Ida Lim, “Chief justice condemns attempts to intimidate judiciary by criticising unpopular decisions”, Malay Mail (9 January 2023).

(33) See Lord Neuberger, “Where Angels Fear to Tread”, Holdsworth Club 2012 Presidential Address (2 March 2012) at para 8.

(34) Available at https://www.judiciary.gov.sg/docs/default-source/criminal-docs/guidebook_for_accused_in_person_english.pdf.

(35) Available at https://www.judiciary.gov.sg/docs/default-source/news-and-resources-docs/family-orders-guide-2022-edition.pdf.

(36) https://www.judiciary.gov.sg

(37) For instance, when the Singapore courts drafted the Rules of Court 2021, we took care to replace legal jargon with language that is more familiar to ordinary people, and to organise the provisions in a more concise and logical way: see Sundaresh Menon, “Procedure, Practice and the Pursuit of Justice”, keynote address at the Litigation Conference 2022 (5 May 2022) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-keynote-address-delivered-at-the-litigation-conference (“Procedure, Practice and the Pursuit of Justice”) at para 16.

(38) See https://www.judiciary.gov.sg/family/file-divorce-application-simplified-track

(39) See Richard L Fruin, “Judicial Outreach in the Twenty-First Century: The Reasons Why” (2009) 48(2) Judges’ Journal 27 at 27; Stephan Grimmelikhuijsen and Albert Klijn, “The Effects of Judicial Transparency on Public Trust: Evidence from a Field Experiment” (2015) 93(4) Public Administration 995.

(40) Available at https://www.judiciary.gov.sg/judgments/judgments-case-summaries.

(41) Available at https://www.judiciary.gov.sg/news-and-resources/publications/PublicationContentTypes/annual-reports.

(42) For instance, the Supreme Court of Singapore collaborates with the Singapore Management University’s law school to have law students write case briefs on important judgments: see https://www.judiciary.gov.sg/judgments/case-briefs-by-smu

(43) As Lord Dyson describes in “Beyond the Bench”, judges in England received no formal training until 1979, when the Judicial Studies Board (now the Judicial College) was established.

(44) Order 3 rule 1(2) of the Rules of Court 2021.

(45) O 5 r 3(1) of the Rules of Court 2021; see also “Procedure, Practice and the Pursuit of Justice” at para 19.

(46) O 28 r 10(6) and Appendix E of the Singapore International Commercial Court Rules 2021; see also “Procedure, Practice and the Pursuit of Justice” at para 23 and fn 37.

(47) See https://www.judiciary.gov.sg/who-we-are/references-questions-of-law-singapore-foreign-courts. These Memoranda of Understanding allow each court to refer questions concerning the law of the other jurisdiction to its counterpart.

(48) The JIN Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters: see Supreme Court of Singapore, “Paving the way for improved coordination of cross-border insolvency proceedings: Adoption of the guidelines for communication and cooperation between courts in cross-border insolvency matters”, press release (1 February 2017) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/paving-the-way-for-improved-coordination-of-cross-border-insolvency-proceedings-adoption-of-the-guidelines-for-communication-and-cooperation-between-courts-in-cross-border-insolvency-matters.

(49) See generally Alyssa S King and Pamela K Bookman, “Traveling Judges” (2022) 116(3) The American Journal of International Law 477; see also Sundaresh Menon, “Dispute Resolution at the Intersection of Domestic and Transnational Justice Systems: The Case for International Commercial Courts” keynote address at the 7th International Bar Association Asia Pacific Regional Forum Biennial Conference (upcoming, 23 February 2023).

(50) See “SIFoCC playing its part” at paras 7–9; see also “The Law of Commerce in the 21st Century”.

Topic: Speech, Speeches

2023/09/08

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