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Chief Justice Sundaresh Menon: Speech Delivered at the Valedictory Reference 2022

VALEDICTORY REFERENCE IN HONOUR OF JUSTICE ANDREW PHANG 

ADDRESS BY THE HONOURABLE THE CHIEF JUSTICE SUNDARESH MENON

My fellow Judges,
Minister Indranee Rajah,
Mr Attorney,
Mr Adrian Tan,
Mr Singh,
Mr Scott Tan,
Ladies and Gentlemen,

1. Welcome to this Valedictory Reference for Justice Andrew Phang, Vice-President of the Court of Appeal.

2. I come to this Reference with a mix of emotions. On the one hand, I rejoice in honouring Justice Phang together with all of us who have gathered here for that purpose. I very much believe that the real measure of the contribution that a person makes in public office is gathered from what is said at the end of his tenure. There is no doubt at all that at the end of Justice Phang’s tenure as a Justice of the Court of Appeal, the applause will be rapturous and the acclaim, virtually universal. That, certainly, is cause for celebration.

3. On the other hand, Justice Phang has worked by my side in the Court of Appeal for nearly ten and a half years. He has been the constant presence in the Court of Appeal for the last 17 years and in the time that I have been there, we have sat together on many of the most important and significant decisions of the Court. Having worked so very closely with him in that time, I have benefitted personally from his wise counsel, his immaculate judgment, his genuine kindness, and his utter devotion to this cherished institution that is the Supreme Court. I shall miss him immensely.

4. I will cover three broad areas in my address this evening:

(a) First, I will outline how and why we got to this point;
(b) Second, I will provide a quick sketch of Justice Phang’s contribution to the legal and judicial history of Singapore;
(c) And finally, I will close with some brief remarks on Andrew, the person.

5. The Bench is a unique organisation. Judges typically hold quite long tenures and the complexion of the Bench changes gradually. Over the last decade or so, we have seen that happen with several retirements, and an influx of new Judges to replace those who have retired and also to fill new slots as the Bench expanded to cope with the growing demands. One of my tasks is to plan for this and so, around the middle of last year, I spoke to Justice Phang to confirm that he would accept the extension that is now ordinarily offered to Judges to continue in office to the age of 68.

6. I was a little surprised when he replied to thank me and told me he would think and pray about it and get back to me by the end of the year. I should have anticipated what was coming. But I did not; and then in January this year, he told me that he had made up his mind to retire at the age of 65. I tried for some weeks to persuade him to change his mind and continue for at least a few more years, but he was resolute. I realised then that we were on the cusp of a very significant transitional phase in the development of our apex court, and beyond that of our judiciary. I paused to take stock of the enormity of the footprint that Justice Phang has left on our jurisprudence; and this led me, among other things, to inform him that I wished to convene this Reference in his honour. You will not be surprised to learn that he immediately and very firmly declined, but fortunately, with a little help from a very special person, of whom I shall say more shortly, I was able to get him to change his mind on this.

7. In our jurisdiction, the Valedictory Reference, which is a formal sitting of the full Bench, has not often been held, at least in modern times. The Reference is a way to honour a retiring Judge, but beyond acknowledging the individual, it serves as an important way in which we, as a community, celebrate and signal the very best qualities of being a member of this wonderful profession, by reflecting on how these are present in the life and career of the Judge concerned. It is convened at the prerogative of the Chief Justice, and I wanted to convene this Reference for Justice Phang not only to honour him, but also to remind all of us, especially the younger members of our profession, why ours is a noble profession. I should also have held one immediately upon taking office for my immediate predecessor, Chief Justice Chan Sek Keong, who remains one of our most illustrious jurists. To my lasting regret, it did not occur to me to do so at the time, perhaps because it had been such a long time since the only other one had been held. As a result, this is only the third time we are doing this; the previous ones having been held for Chief Justice Wee Chong Jin, and for Justice Chao Hick Tin. Justice Phang is a most worthy addition to that pantheon of Singapore’s legal legends.

8. While it is Justice Phang’s work as a Judge that we celebrate today, it is impossible to separate one’s impressions of his judicial work from one’s impressions of his many dimensions as a scholar, academic and professor. In this respect, he stands alongside such legal giants as Lord Goff of Chieveley, Baroness Hale of Richmond and Justice Felix Frankfurter, all of them outstanding academic lawyers who went on to become outstanding judges. In the end, it is this unique combination that we celebrate today.

9. Over the course of the last four decades, beginning in 1982 when he graduated from the National University of Singapore at the top of perhaps the most illustrious graduating class in the history of the law school, Justice Phang has taught, researched, thought and written about the law. He did this for almost 23 years as an academic lawyer and then for the last 18 or so years, as a judge. Numbers do not always tell a story, but in Justice Phang’s case they help shed some light: he has more than 260 academic publications and around 400 judgments to his name. That is a prodigious output, made even more remarkable when one takes account of its sheer quality. Simply put, there can be no real doubt that Justice Phang is one of the most influential legal thinkers in our history.

10. I will not say very much here about Justice Phang’s jurisprudence. That is best saved for another occasion. There are, in any case, far too many very important judgments that have been authored by him during his time on the Bench for any of them to be singled out on an occasion like this. I will instead mention what I regard to be the three most notable features of his jurisprudence, beyond, of course, its sheer brilliance. First, his judgments invariably reflect a seemingly effortless ability to unpack and organise extremely complex areas or points of law, typically having examined just about every significant academic writing on the subject, and just about every significant relevant judgment from major courts around the world. Second, his jurisprudence is rooted in a well-founded devotion to principle, as a result of which he and, to some degree because of his influence, our Court of Appeal have not shied from occasionally parting company with our counterparts in other leading jurisdictions, when we did not think that the course they were charting was grounded in principle. Both these features have been foundational to our development of a truly autochthonous jurisprudence. It will not be surprising that this is a cause that Justice Phang has sought to pursue from his early days in academia; and the extent to which this has materialised reflects something of his profound impact on the modern development of Singapore law. And finally, Justice Phang found much inspiration in the work of the late Lord Denning, who he admired as a judge who had the courage to strive always to do right by the parties and achieve a fair outcome in their dispute. I think in his jurisprudence we find that same determination to do right and arrive at the fair outcome. I have no doubt at all that Lord Denning would have been delighted to know he had such an outstandingly talented and principled admirer.

11. Let me finally say something about Andrew, the person. I come to this from three perspectives. First, Andrew taught me, and indeed Minister Indranee Rajah, when we were freshies at the NUS Law School in 1982. Andrew had just graduated, and he taught us the Legal Method, a difficult subject to teach those new to the law. And yet he did this masterfully and left a deep impression on me as a student, of his talent as a teacher. Importantly, what made him such a fine teacher was not just his knowledge of and obvious love for the law; it was the fact that he cared so much about his students, appreciated how lost we likely were in trying to make sense of the material we were being exposed to, and so went out of his way to ensure that he had done everything he possibly could to enable us to grasp what he was trying to convey to us.

12. Second, over the years, I have seen him interact with people from every walk of life - junior lawyers, law clerks, staff and peers – but always with the same consideration, kindness and humility. He invariably inquires after the health and well-being of our young colleagues, dispenses advice about life and making good choices, and strives to acknowledge and convey his appreciation for the effort that others have put into whatever work they turned in. He also takes the trouble to reply without fail to every email, even with just an expression of thanks, regardless of who the sender is. In the course of hearing hundreds of cases together, we have almost always been on the same side. But on the very rare occasions when we might have differed, he would speak to me privately to see if there might be something either of us had missed. And when he had suggestions on improving my drafts, he would take the trouble to convey these privately. Such is his humility and his sensitivity. These are precious qualities, and rarely are they found in one so profoundly gifted.

13. Lastly, Andrew is a man whose strength is rooted in his faith and in his family. I am delighted that his immediate and extended family are here today. He often speaks of his late parents, of the lessons and values they imparted to him, and of the importance of passing these on to the next generation. His parents were the biggest influence in his early life. And his wife, Sock Yong and his daughters Rachel and Christine have been the anchor in his adult years. Sock Yong has been his best friend, counselor and confidante, and it was she who persuaded him to agree to have this Reference, at my request.

14. It will be evident from what I have said that Andrew commands not just my tremendous respect as a jurist, but he also holds my deep affection as a friend and a wonderful colleague. He has been warm, loyal and kind to me throughout the years I have been privileged to work with him and he has sought to support me in every way possible. As I reflect on my impressions of Andrew, I realise that the most remarkable thing about him is the fact that he has never allowed himself to be imprisoned by his brilliance and the abundance of his many talents. Instead, he has set about using these talents to serve this nation with consummate humanity, and that has been to our great benefit and advantage.

15. A few weeks ago, I spoke to a friend who just turned 90, and who had retired early at the age of 53. He told me he did that because, in his words, “it was important to leave the party before it ended”. I think there is wisdom in that, though I think Andrew is leaving his party much too soon. But I take comfort in the fact that he isn’t quite leaving it altogether. He will continue to serve as a Senior Judge, and I know that he will continue to find ways to make invaluable contributions to our profession.

16. On behalf of all of us on the Bench and indeed of the entire profession, I thank you Andrew for all you have done for us; we all wish you a very happy, healthy and meaningful retirement; and we wish you all the joy of the time you will have with Sock Yong and your family in the years ahead, with the pleasure of doing only the things that you want to do.

2022/11/30

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