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Chief Justice Sundaresh Menon: Opening Address at Conversations with the Community on 21st September 2023


Opening Address

“The Role of the Courts in Our Society – Safeguarding Society”

The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore

Distinguished guests
Ladies and gentlemen

        I. Introduction

  1. A very good afternoon, and thank you for joining us today for the first of a series of “Conversations with the Community” organised by the Singapore Courts. Let me also thank the Singapore Management University’s Yong Pung How School of Law for working with us to put this event together. These conversations provide a valuable opportunity for dialogue between the Judiciary and the broader community on topical issues at the intersection of law and society, and I very much hope that each session will give us cause for reflection and thought.
  2. It is appropriate that this series of conversations opens with a fundamental question: what is the role of the courts in our society? In The Federalist Papers, one of the American Founding Fathers, Alexander Hamilton, famously described the Judiciary as “the least dangerous” of the three branches of government in a system based on the separation of powers. The Executive, he said, “holds the sword of the community”, and the Legislature “prescribes the rules by which the duties and rights of every citizen are to be regulated”. In contrast, the Judiciary, “may … be said to have neither force nor will, but merely judgment".(1)
  3. Hamilton wrote those words in 1788, but they still encapsulate fundamental aspects of our understanding of the Judiciary’s role today: it is well known that the courts’ essential function is to “say what the law is”.(2) But, especially in more recent times, our understanding of the role of the Judiciary as an institution has evolved. My principal thesis today is that the courts have two distinct but complementary kinds of roles in safeguarding our society. The first is the one we are all familiar with – the courts’ adjudicative role, to interpret and apply the law in each case in a fair and principled way that ensures respect for the constitutional and institutional space of each branch of government. The second might be labelled the courts’ systemic role, by which I mean its task of developing and operating a system for the administration of justice that is accessible to all and meets the needs of all.(3) It is by discharging both these roles that the courts can secure public trust in our justice system and, more broadly, in the rule of law in our society.

    II. The adjudicative role of the courts

  4. Let me begin with the adjudicative role of the courts. In deciding each case that comes before them, the courts exercise the judicial power that is vested in them by the Constitution,(4) which is the supreme law of the land (5) and which enshrines, among other things, the fundamental liberties of our people.(6) But the Constitution equally vests legislative power in Parliament (7) and executive authority in the Cabinet and the President.(8) This reflects a separation of powers, premised on the notion that the Judiciary, the Executive and the Legislature are co-equal branches of government,(9) each with its own constitutional territory and institutional space.

  5. The separation of powers means that each branch must be allowed to fully and fairly exercise the powers that it has been allocated within our constitutional order.(10) This, in turn, requires the courts to be guided by two core principles in discharging their adjudicative role: judicial courage, and judicial modesty. Let me elaborate on each of these in turn.

    A. Judicial courage

  6. First, the courts must demonstrate judicial courage in exercising the judicial power that has been entrusted to them. Our courts do not shy away from adjudicating on the constitutionality and legality of legislative and executive acts when it is necessary to do so. On the contrary, the courts have maintained that this is a task that “lies exclusively within the ambit and competence of the courts”.(11) This is central to their role in safeguarding society against any unlawful exercises of state power, and protecting individuals from infringements of their rights and liberties. Four decades before Hamilton described the Judiciary as “the least dangerous” branch, Montesquieu – in one of his earliest statements of the separation of powers doctrine – explained its rationale in terms of the protection of liberty. He said there would be “no liberty” if the judicial power was not separated from that of the Legislature and the Executive, because that would allow “tyrannical laws” to be executed in a “tyrannical manner”.(12) This, he suggested, would mean “an end of everything”.

  7. Happily, the kind of tyranny that Montesquieu envisaged is unthinkable for us. But the courts have nevertheless taken a robust approach to applying the law impartially in each case, and to ensuring that all exercises of state power abide by their proper legal limits. Let me illustrate this with two sets of examples.

  8. First, even in matters that are political or policy-laden in nature, the courts apply legal principles and standards to assess the legality and constitutionality of the acts in question. For example, in the case of Tan Seet Eng, the Court of Appeal was clear that even for matters of high policy, the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty and arrived at in a legal manner.(13) A more recent example is the case of Tan Seng Kee, which involved challenges to the constitutionality of section 377A of the Penal Code, and required a consideration of the political compromise under which section 377A was to be retained but not proactively enforced. The Court of Appeal emphasised that the inherently political nature of this compromise did not preclude the existence or application of legal standards against which its legality or constitutionality could be judged.(14) Accordingly, it considered the legal effect of the Attorney-General’s representations regarding the prosecutorial policy for such offences; and, even though that was sufficient to dispose of the case, went on to analyse the constitutionality of several aspects of section 377A with reference to established legal principles.

  9. Second, the courts apply the law as it is, without fear or favour, even if this might lead to outcomes that may be difficult to reconcile with prevailing social norms and policies. An example of this is the case of UKM. (15) where the appellant – a gay man – had applied to adopt his biological son who had been conceived through in vitro fertilisation and delivered by a surrogate mother in the United States. The court held that he should be allowed to adopt the child. While the court was cognisant of the public policy against the formation of same-sex family units, (16) and gave this significant weight, this consideration was ultimately outweighed on the facts of that case by the statutory imperative (17) to promote the welfare of the child as the first and paramount consideration.(18) Although the court noted that it had reached this conclusion with “not insignificant difficulty”, it underscored that it had reached its decision through an application of the law, as the court understood it to be, in the particular circumstances of the case.(19) 

  10. The courts, therefore – guided by judicial courage – play an essential role in upholding and applying the law in our society. It is for this reason that it has been said that “the ultimate responsibility for maintaining a system which abides by the rule of law lies with the Judiciary”.(20) 

    B. Judicial modesty

  11. But there is another no less important aspect of the separation of powers, which is that it requires each branch of government to respect the constitutional prerogatives and the institutional space of the others.(21) This calls for the courts to be guided by judicial modesty, grounded in the recognition that judicial power, too, has its legal and constitutional limits, and that the scope for judicial intervention is not limitless.(22) In a constitutional order where the Judiciary, the Legislature and the Executive are co-equal branches of government, where none is superior to any other and each has separate and distinct responsibilities, (23) it is essential that both the courts and the public appreciate that there are polycentric social, economic and political questions that are sometimes not appropriately or effectively resolved through the judicial process.(24) 

  12. This point bears emphasis. Some might wish to see the courts playing a more proactive role in spearheading change by taking a stand on contentious societal issues, particularly where such change is perceived to advance causes that may be viewed by some as progressive or desirable. But to expect this of the courts would, I suggest, be to fundamentally misunderstand the judicial function under our constitutional system. The courts are not front-runners for social change or architects of social policy, nor are they suitable fora for the continuation of politics by other means.(25) To venture into such territory would not only be inconsistent with the courts’ adjudicative role, but would also imperil the courts’ legitimacy and the trust placed in them to decide each case fairly and impartially, in accordance with the law and in a principled way.

  13. We had occasion to explain these points at some length in the case of Tan Seng Kee. Against the background of the socio-political controversy surrounding section 377A of the Penal Code and all that it was thought to symbolise, the Court of Appeal was careful to begin by clarifying the proper role of the court and the scope of the appeals that were before it. As the court made clear in its judgment, the appeals were not about the policy merits or socio-political desirability of section 377A, or about the moral worth of homosexual individuals, or about the immutability of sexual orientation. These extra-legal questions were beyond the remit of the courts, (26) and indeed could not be resolved appropriately through the judicial process, with its focus on legal principles, rights and liabilities. Instead, the underlying disagreements of moral conscience at play would be better addressed through the political process, which is designed to allow for democratic debate over competing conceptions of the public good, and to devise pluralistic solutions capable of accommodating divergent interests and opinions.(27) 

  14. Let me now elaborate on two categories of cases in which our courts have demonstrated judicial modesty: those involving matters of sentencing policy, and those involving what are referred to as unenumerated substantive rights.

              i. Sentencing policy

  15. It is well established that Parliament prescribes, through legislation, the sentencing scheme for certain offences. This reflects the sentencing policy and the public interest considerations that Parliament seeks to give expression to. The courts then determine the appropriate sentence for each offender based on the facts of each case, in the light of the legislative scheme, and the Executive then carries out the sentence imposed.(28) 

  16.  This separation of powers means that the scope of the courts’ sentencing power is delimited by the legislative scheme laid down by Parliament. One area in which the legislative sentencing scheme has attracted some controversy is the imposition of the mandatory death penalty for trafficking in certain quantities of drugs.(29) While it is unquestionably for the courts to determine whether there is sufficient legal and factual basis for the death penalty to be applied in each case, the questions of sentencing policy underpinning this legislative scheme fall outside the remit of the courts. Thus, in 1980, the Privy Council emphasised that in ruling on the constitutionality of the appellant’s mandatory death sentence, it was not concerned with arguments for or against capital punishment;(30) and more recently, the Court of Appeal rejected the argument that the mandatory death penalty had only a limited deterrent effect on drug couriers, observing that it was not within its purview to determine the efficacy of the mandatory death penalty as a deterrent against drug trafficking. Instead, this is a question of policy for Parliament.(31) More broadly, questions of the suitability of the mandatory death penalty as a form of punishment for serious criminal offences, and whether the existing legislation should be modified or repealed, are policy issues for Parliament to determine.(32) This means that, no matter how passionately one may hold views against the death penalty, the proper recourse is to seek change through the legislative process, and not through the courts.(33)

  17. This does not mean that our courts do not take a robust approach to reviewing whether the substantive conditions for the imposition of the death penalty (as prescribed by law) are met, and whether the proper procedures for carrying out the death penalty have been followed. For example, in 2020, the Court of Appeal allowed a prisoner awaiting capital punishment to commence judicial review proceedings on the ground that the scheduling of his execution, ahead of other prisoners awaiting capital punishment who had been sentenced to death before him, disclosed a prima facie case of reasonable suspicion that his right to equality under Article 12 of the Constitution might have been breached.(34) The court emphasised that it was not dictating the considerations that the State had to take into account when scheduling executions, which was – under the statutory scheme – an executive rather than a judicial function. But its decision sought to ensure that the State applied its own criteria consistently in the scheduling of executions, departing from its stated baseline only when there were legitimate reasons for doing so.(35)

  18. The courts’ approach to matters of sentencing thus shines light on the important lines that must be drawn between the proper territory of the courts and that of the Legislature and the Executive. In exercising their judicial power, the courts are mindful of the limits of their adjudicative role, while remaining firmly committed to their duty to ensure the constitutionality and legality of exercises of legislative and executive power.

              ii. Unenumerated substantive rights

  19. I come to the second category of cases in which our courts have demonstrated judicial modesty: those where they have refused to read unenumerated substantive rights into our Constitution. By this, I mean rights that cannot be found in the text of the Constitution, whether expressly or by necessary implication.(36)

  20. As I mentioned near the start of my address, the Constitution expressly enshrines certain fundamental rights and liberties, such as life and personal liberty, (37) equality before the law,(38) and freedom of speech and expression.(39) There are also rights that, while not expressly stated, can be found in the Constitution either by construing it in its context or entirety, or as a matter of necessary implication in the light of the Constitution’s other express provisions – and one example of this is the right to vote.(40) But where a right cannot be found in the Constitution in these ways, the courts do not have the power effectively to create such rights out of nothing. To do so would entail judges sitting as a “super-legislature” and enacting their personal views and preferences of what may be just and desirable into law. This would not only be undemocratic; it would also be antithetical to the rule of law.(41)

  21. This is aptly illustrated by the approach of our courts to Article 9 of the Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”.(42) In the context of a challenge to the constitutionality of caning, the Court of Appeal held that even assuming for the sake of argument that caning was viewed as a form of inhuman punishment, a Constitutional prohibition against the imposition of caning after conviction pursuant to a fair trial could not be founded simply on a general invocation of “principles of natural law”, which was the argument that was presented.(43) And more recently, in Tan Seng Kee, the Court of Appeal held that the right to express one’s sexual identity could not be read into Article 9 of the Constitution.(44)
  22. This approach may be contrasted with the approaches that have from time to time been adopted elsewhere, sometimes with far-reaching and disruptive consequences. We need look no further than the development of US law on the right to an abortion, from the well-known decision of the US Supreme Court in Roe v Wade in 1973 (45) to its subsequent decision to overrule and reverse that decision in Dobbs v Jackson Women’s Health Organisation last year.(46)

  23. In Roe, a majority of the court held that the “Due Process Clause” in the Fourteenth Amendment to the US Constitution contained a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. While this might have appeared to be a victory for pro-choice advocates, Justice Ruth Bader Ginsburg, writing extra-judicially, observed that there had been a trend in the states towards the liberalisation of abortion statutes at the time of the court’s decision in Roe, such that the political processes had been moving – albeit not swiftly enough for some – towards change. But by venturing as far as it did, Roe appeared to have provoked rather than resolved conflict, by catalysing the mobilisation of the right-to-life movement and a resultant reaction in Congress and state legislatures.(47)

  24. These concerns were borne out in the years that followed. And after half a century of socio-political contestation, the US Supreme Court in Dobbs overruled Roe and held that the Fourteenth Amendment did not protect the right to an abortion. Justice Samuel Alito, delivering the majority’s opinion, warned that judges had to be careful not to confuse what the Fourteenth Amendment protected with their own views about the liberty that Americans should enjoy.(48) The right to an abortion was held to have no basis in the text of the Constitution, nor was it a right that could be said to be so deeply rooted in America’s history and tradition that it could be implied.(49) It followed that the courts could not substitute their beliefs for the judgment of legislative bodies that sought to regulate abortion for legitimate reasons.(50) Roe and the decisions that followed it had, in Justice Alito’s view, arrogated that power from the people and their democratically elected representatives.(51)>

  25. All this bears out the Court of Appeal’s observations in Tan Seng Kee that there are consequences to removing issues of profound public and moral significance from the political realm into the judicial sphere – not least that it short-circuits the process of democratic change, and leads to the polarisation of societal discourse and debate.(52)

  26. Similar concerns were expressed in the opinions of the dissenting Justices of the US Supreme Court in Obergefell v Hodges.(53) The majority of the court in Obergefell held that the Fourteenth Amendment required states to license and recognise same-sex marriages that had been lawfully performed in another state, reasoning that the fundamental liberties protected by the Fourteenth Amendment extended to certain personal choices that were thought to be central to individual dignity and autonomy, and that the fundamental right to marry could be exercised by same-sex couples no less than by opposite-sex couples.(54) The dissenting Justices, however, expressed serious reservations about this reasoning. Justice Alito observed that the question was not what the states should do about same-sex marriage, but whether the Constitution answered that question for them. In his view, the Constitution left that question to be decided by the people of each state.(55)

  27. These cases illuminate not just the value of judicial modesty, but indeed its constitutional and institutional necessity. It is the Legislature that has been entrusted with the democratic mandate and legitimacy, as the people’s elected representatives, to forge a consensus on the difficult moral and social issues that will inevitably arise in a mature polity. It is also the Legislature that institutionally is equipped to consider the different views that may be held on socio-political issues attracting legitimate disagreement. Judicial modesty and self-restraint in the face of these considerations should therefore not be mistaken for judicial apathy. On the contrary, they reflect the courts’ understanding of their proper place in a democratic constitutional order, and a commitment to exercising neither “force” nor “will” in these delicate matters – only impartial judgment, grounded in legal principles.

  28. This brings me back to the adjudicative role of the courts. The courts’ role is to say what the law is, and to apply that law to the facts of each case that comes before them – not according to what particular stakeholders or interest groups in society might want the law to be, or in accordance with the judges’ personal inclinations. It is critical to the integrity and legitimacy of the Judiciary that the judicial power to interpret and apply the law be wielded responsibly, impartially and in a principled way in each case. Indeed, it is precisely because the courts do not wade into areas of social and political controversy that they can continue to serve as a key stabilising force in society, by maintaining widespread public acceptance of their status as the legal arbiters and umpires of society,(56) and public confidence in the rule of law rather than the rule of the courts is what we should be striving for. After all, judges and courts are equally servient to the law, as any other entity. This also recognises that courts do not work alone in safeguarding our society – instead, the different branches of the government are partners in the shared endeavour to advance society’s best interests.(57)

    III. The systemic role of the courts

  29. At the same time, the changing world that we find ourselves in today has prompted an evolution in our understanding of the Judiciary’s role. This is the second kind of role that the courts play in safeguarding society, beyond their traditional adjudicative role, and that is their increasingly important systemic role as institutions charged with the responsibility of administering our system of justice. This broader conception of the courts’ role flows from the recognition that their true mission as a court is to ensure the fair and efficient administration of justice. The adjudication of discrete disputes is thus a part, albeit a very important part, of the much larger picture of how our legal system delivers justice to its users.(58)

  30. This evolution is, I suggest, a critical component of our efforts to safeguard public trust in our justice system and in the rule of law.(59) These efforts take on particular importance and urgency in the light of the global challenges that societies and justice systems around the world face today, which come together to form what can be characterised as a “perfect long storm”, to borrow the words of our President in a slightly different context.(60) I highlight three of these challenges: socio-economic inequality, “truth decay”, and the decline in trust in public institutions.

         A.      A perfect long storm

                    i. Socio-economic inequality

  31. Let me begin with socio-economic inequality. Rising inequality has been an area of global concern for some years now,(61) and this troubling trend has been exacerbated by the COVID-19 pandemic: a report published by Oxfam earlier this year noted that the richest 1% had captured nearly two-thirds of all the new wealth generated since the start of the pandemic.(62) If socio-economic inequality continues to worsen, it will exacerbate the polarisation of public discourse and the marginalisation and disaffection of those left behind.(63)

  32. For the reasons I outlined earlier, the courts do not have the mandate to tackle complex social issues like inequality head-on. Nonetheless, as the institution responsible for the administration of justice, the Judiciary has a legitimate – and, I suggest, essential – role to play in helping to stabilise society by promoting the goal of access to justice in whatever way it can. The courts must therefore take steps to ensure that, as far as possible, would-be litigants are not shut out of the justice system on account of the cost and other obstacles faced in navigating the justice system. This policy imperative to ensure access to justice does not detract from the courts’ adjudicative role that I have spoken about, but instead complements that role. Even the best justice system, with the most skilled and principled adjudicators, will be worthless if it is inaccessible to those who wish to have recourse to the courts to resolve their legal problems.(64)

                    ii. Truth decay

  33. Turning to the second of the challenges, this is the phenomenon that has been labelled “truth decay”. This refers to the proliferation of disinformation and the devaluation of truth in public discourse, and this is something that the world has witnessed to a growing extent in recent years.(65) Truth decay has been characterised by a set of four related trends: first, an increasing tendency to disagree over facts; second, a blurring of the line between opinion and fact; third, an increase in the relative volume and influence of opinion and personal experience over fact; and finally, lowered trust in formerly respected sources of factual information.(66)

  34. To be sure, this phenomenon affects virtually all aspects of societal life. But it is a particularly pernicious threat to the rule of law, which – at its most basic level – must be rooted in the pursuit of truth in order to achieve justice.(67) Truth is the foundation upon which the courts do their work, and it is essential that the findings of the courts are accepted in the public sphere as generally reflecting the truth. It would be deeply damaging to the legitimacy of the courts for baseless and unfair allegations to be made against judges in the discharge of their duties, such as accusations that their rulings merely reflect their personal preferences.(68) This problem is exacerbated by the sheer speed at which falsehoods can gain widespread traction: as the saying goes, “a lie can travel halfway around the world while the truth is still putting on its shoes”.(69) In these circumstances, it is especially important for the courts not only to emphasise the sanctity of truth within the courtroom, but also to enlarge their efforts to educate the public at large about court processes and judicial decisions.(70)

                    iii. Decline in trust in public institutions
  35. The third challenge, related to the previous two, is the broader and more fundamental decline in trust in public institutions. The 2022 Edelman Trust Barometer found that distrust had become “society’s default emotion”,(71) and the 2023 Edelman Trust Barometer reported that, globally, government was less trusted than business.(72) This underscores the point that societies today are experiencing a serious deficit of trust.
  36. This is a corrosive reality to which the courts are not immune, and it strikes at the heart of the discharge of our judicial responsibilities because the legitimacy of the courts rests upon the broad acceptance that courts are reliable truth-seekers and truth-finders who can be trusted to dispense justice according to law and to ensure the legality of the actions of other public institutions. If this trust falls away, so too will trust in our justice system as a whole and then in the rule of law in our society.(73) It is therefore imperative for the Judiciary to secure and maintain public trust in the courts.

         B.      A paradigm shift
  37. Amidst these serious challenges, I suggest that our paradigms of justice will need to shift. It will be increasingly important for the courts to look beyond a narrow conception of their role that is focused largely or exclusively on adjudication, and instead devote attention to developing systems and institutions that can deliver and excel in the administration of justice. Our Judiciary is working to discharge this systemic role by building a user-centric court system that meets the needs of the public (74) and strives to advance access to justice.

  38. Part of this endeavour must involve assisting court users in understanding and navigating the justice system. I refer to this as the courts’ “assistive responsibility” towards our users. But another important element will be public communications and outreach, to spread awareness of the work that our courts do, how we do it, why we do it, and what the limits are of what we do. More fundamentally, this endeavour will also require the courts to reimagine how traditional adversarial processes might be adapted to better suit the needs of court users in particular contexts.

                    i. The courts’ assistive responsibility towards their users
  39. Let me deal first with the courts’ assistive responsibility towards their users, and in particular I am speaking about lay users or self-represented persons. Such court users are an increasingly important reality for judiciaries around the world, yet they face significant barriers to accessing justice because legal and judicial systems have traditionally been designed with lawyers and judges in mind.(75)

  40. One way in which our courts have sought to discharge this assistive responsibility is by implementing simplified court processes, to try to reduce the friction encountered by laypersons in commencing claims or defending proceedings in court. Since 2014, a simplified process has applied to proceedings in the Magistrate’s Courts and the District Courts. This has been driven by the recognition of the disincentive that the disproportionate cost of litigation may pose for claimants pursuing smaller claims.(76) And, in 2022, the Rules of Court 2021 introduced a far-reaching set of civil procedure reforms, with the express aim of achieving ideals like fair access to justice and fair and practical results suited to the needs of the parties.(77)The new Rules are intended to make court processes easier to understand and navigate, such as by replacing legal jargon with language that is more familiar to ordinary people, and reorganising key provisions of the Rules in more intuitive way.(78)

  41. In addition, our courts have made significant efforts to address the asymmetries in information that laypersons may face, by providing legal information through guides such as the State Courts’ Guidebook for Accused in Person (79) and the self-help procedural guides for civil, family and criminal proceedings that are published on the Singapore Courts’ website.(80)

  42. Our courts have also harnessed technology to provide practical assistance to lay court users. For example, the Community Justice Centre’s Automated Court Documents Assembly tool can help users prepare documents for bankruptcy applications and criminal mitigation pleas,(81) while the Family Justice Courts’ Divorce and Probate eServices can be used to generate court papers that are needed to apply for a divorce or for a Grant of Probate in certain cases.(82) The Judiciary is also exploring the use of generative artificial intelligence to advance our mission of access to justice. Meanwhile, those who are less comfortable with technology can still avail themselves of service centres such as our Supreme Court’s one-stop Service Hub, which consolidates the touchpoints for commonly used services in a single location.(83)

  43. We also established the Access to Justice (or “A2J”) Programme Office earlier this year to drive our transformation into a more outward-facing and user-centric institution, with a committed focus on securing access to justice. Among other projects, the A2J Programme Office has conducted user testing and will be launching a beta version of a step-by-step Digital Guided Questionnaire that can help users locate relevant information on the Singapore Courts’ website based on the key features of the situation they find themselves in. And there will undoubtedly be more developments on the horizon as we undertake the significant – and critically important – endeavour of furthering access to justice.

                    ii. Public communications and outreach
  44. Second, our courts are working on improving public communications and outreach to promote awareness of what we do. For example, our Supreme Court publishes case summaries of significant decisions on its website (84) and social media channels, and works with other stakeholders to organise events that enable us to engage with a wider audience. This series of “Conversations with the Community” is an important part of that effort. It is hoped that these efforts will help to dispel myths and foster a better understanding of the work of our courts.

                    iii. Reimagining traditional adversarial processes
  45. Third, and more fundamentally, the courts will need to reconsider the appropriateness of traditional adversarial processes and reimagine what justice might look like in certain contexts. To this end, we have developed procedural norms that have shifted the culture of litigation,(85) such as in our family justice system where therapeutic justice has been adopted as the overarching philosophy.(86) Therapeutic justice is a conception of the law as a method of resolving family disputes that recognises that justice in this context must seek to help the parties to repair their broken relationships and look towards the future, rather than facilitating an adversarial mindset that is focused on winning and losing and settling old scores in a way that may engender further acrimony. This has required the ordinary tools and processes of litigation to be modified to meet the particular needs of family litigants.(87) More generally, we have encouraged the use of alternative dispute resolution mechanisms such as mediation, which help to focus the parties’ attention on their shared interests and on the way forward, instead of on a zero-sum allocation of fault for past hurts and wrongs. Mediation is also more accessible to laypersons because it does not require them to frame their issues in terms of legal arguments, but instead encourages them to articulate their interests and their concerns.(88)

  46. It will be apparent from what I have said that embracing and discharging the courts’ systemic role, as the institution responsible for administering our system of justice, will be a massive undertaking. But this dimension of our role is one that we must be firmly committed to.

    IV. Conclusion

  47. Let me conclude by returning to Hamilton’s words, with which I began this address. The role of the courts has long been, and will continue to be, to exercise “judgment” – as opposed to “force” or “will” – by interpreting and applying the law in a fair and principled way in each case that comes before them. This adjudicative role enables the courts to uphold the rule of law and serve as an important stabilising force in our society. But our role cannot be limited to a purely adjudicative setting. To effectively navigate the challenges that confront our societies, the courts – as the custodians and principal operators of our justice systems (89)– have a special responsibility for protecting the core values of those systems and ensuring that robust mechanisms are in place for the delivery of justice to all. It is in doing this effectively that we will be able to secure and maintain public trust in the systems that have been established for the orderly resolution of disputes and, more generally, to uphold public confidence in the rule of law. And this, I suggest, is the most important way in which our courts can safeguard our society.

  48. Thank you very much.

(1) Alexander Hamilton, “The Judiciary Department”, The Federalist Papers: No 78 (1788) (
(2) Marbury v Madison 5 US 137 (1803) at 177.
(3) See Sundaresh Menon, “The Role of the Judiciary in a Changing World”, address at the Supreme Court of India Day Lecture Series 1st Annual Lecture (4 February 2023) (“Role of the Judiciary”) at para 32.
(4) Art 93 of the Constitution of the Republic of Singapore (2020 Rev Ed) (“the Constitution”).
(5) Art 4 of the Constitution.
(6) Arts 9–16 of the Constitution.
(7) Art 58(1) of the Constitution.
(8) Art 23(1) of the Constitution.
(9) See Tan Seng Kee v Attorney-General and other appeals [2022] 1 SLR 1347 (“Tan Seng Kee”) at [12].
(10) See Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control”, Annual Bernstein Lecture in Comparative Law at Duke University School of Law (1 November 2018) (“Bernstein Lecture”) at para 63 and Tan Seng Kee at [15].
(11) Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 at [154].
(12) Montesquieu, Charles de Secondat, baron de, “The Spirit of Laws”, Book XI (1748).
(13) Tan Seet Eng v Attorney-General and another matter [2016] 1 SLR 779 (“Tan Seet Eng”) at [106].
(14) Tan Seng Kee at [13].
(15) UKM v Attorney-General [2019] 3 SLR 874 (“UKM”).
(16) See UKM at [187]–[192] and [202]–[208].
(17) Under s 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed).
(18) See UKM at [248].
(19) See UKM at [249].
(20) Tan Seet Eng at [1].
(21) See Tan Seng Kee at [15] and the Bernstein Lecture at paras 63 and 65.
(22) See the Bernstein Lecture at para 41; see also Sundaresh Menon, opening address at the Singapore Academy of Law Annual Lecture 2022 at para 8.
(23) See Tan Seet Eng at [90].
(24) See the Bernstein Lecture at paras 53–54 and Tan Seet Eng at [93]–[94].
(25) See Tan Seng Kee at [14].
(26) See Tan Seng Kee at [2] and [15].
(27) See Tan Seng Kee at [4]–[5], [7] and [12].
(28) See Sundaresh Menon, “Sentencing Discretion: The Past, Present and Future”, keynote address at the Sentencing Conference 2022 (31 October 2022) at paras 11 and 13.
(29) See s 33 (read with the Second Schedule) of the Misuse of Drugs Act 1973 (2020 Rev Ed).
(30) See Ong Ah Chuan v Public Prosecutor [1981] AC 648 at 672–673.
(31) See Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong (2010)”) at [117]–[118].
(32) See Yong Vui Kong (2010) at [122].
(33) See Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] 2 SLR 211 at [69].
(34) Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 (“Syed Suhail”).
(35) See Syed Suhail at [72] and [73].
(36) See Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129 (“Yong Vui Kong (2015)”) at [73].
(37) Art 9(1) of the Constitution.
(38) Art 12(1) of the Constitution.
(39) Art 14(1)(a) of the Constitution.
(40) See Arts 66 and 39(1) of the Constitution and Daniel De Costa Augustin v Attorney-General [2020] 2 SLR 621 at [7]–[9].
(41) See Yong Vui Kong (2015) at [73] and [75].
(42) Art 9(1) of the Constitution.
(43) See Yong Vui Kong (2015) at [68]–[75].
(44) See Tan Seng Kee at [246].
(45) See Roe v Wade 410 US 113 (1973).
(46) See Dobbs v Jackson Women’s Health Organisation 597 US 142 (2022) (“Dobbs”).
(47) See Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade” (1985) 63 N C L Rev 375 at 379–381 and 385–386.
(48) See Dobbs at 14.
(49) See Dobbs at 5.
(50) See Dobbs at 77.
(51) See Dobbs at 79.
(52) See Tan Seng Kee at [6] and [9].
(53) See Obergefell v Hodges, Director, Ohio Department of Health 576 US 644 (2015) (“Obergefell”).
(54) See Obergefell at 10 and 22–23.
(55) See Obergefell (dissenting opinion of Alito J) at 1–2.
(56) See Role of the Judiciary at para 4.
(57) See the Bernstein Lecture at para 65.
(58) See Sundaresh Menon, “Securing Trust: The Project of Judicial Leadership”, welcome address at the opening of the Court Week of the inaugural Judicial Executive Programme (21 November 2022) (“JEP Welcome Address”) at paras 2 and 5; see also Role of the Judiciary at para 32.
(59) See the JEP Welcome Address at para 2 and Role of the Judiciary at paras 24–25.
(60) See Role of the Judiciary at paras 3, 7 and 27, citing Tharman Shanmugaratnam, “Confronting a Perfect Long Storm”, Finance & Development (June 2022) at p 4.
(61) See the World Inequality Report 2022, which noted that the richest 1% had captured 38% of all additional global wealth accumulated since the mid-1990s, while the bottom 50% captured just 2% of this: see World Inequality Lab, World Inequality Report 2022 at p 15.
(62) Oxfam, “Survival of the Richest” (January 2023) at p 8.
(63) See Role of the Judiciary at para 17.
(64) See Sundaresh Menon, Response at the Opening of Legal Year 2023 (9 January 2023) at para 33.
(65) See Role of the Judiciary at para 20 and Sundaresh Menon, “After the Fall of Babel: The Courts in a Post-Truth World”, Supreme and Federal Courts’ Judges Conference 2023 (23 January 2023) (“The Courts in a Post-Truth World”).
(66) See Jennifer Kavanagh & Michael D Rich, RAND Corporation, “Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life”: (
(67) See Sundaresh Menon, opening remarks at the World Justice Project’s Asian Launch of the Rule of Law Index 2021 (28 October 2021) at para 13.
(68) See Role of the Judiciary at paras 21–23.
(69) Perhaps fittingly, while this saying is commonly attributed to Mark Twain, it has been suggested that Mark Twain did not in fact coin it: see Niraj Chokshi, “That Wasn’t Mark Twain: How a Misquotation Is Born”, The New York Times (26 April 2017).
(70) See The Courts in a Post-Truth World at paras 27–34.
(71) See 2022 Edelman Trust Barometer: The Trust 10  (
(72) Globally, there was a 12-point gap between trust in business and trust in government, with 62% indicating trust in business and only 50% indicating trust in government: see the 2023 Edelman Trust Barometer, Top 10 (
(73) See Role of the Judiciary at paras 24–27 and Sundaresh Menon, opening remarks at the Second Meeting of the International Judicial Dispute Resolution Network (22 May 2023) (“JDRN Opening Remarks”) at para 2.
(74) See Role of the Judiciary at para 37 and JEP Welcome Address at para 12.
(75) See Role of the Judiciary at para 38.
(76) See Sundaresh Menon, “Procedure, Practice and the Pursuit of Justice”, keynote address at the Litigation Conference 2022 (5 May 2022) (“Litigation Conference Address”) at paras 11–12.
(77) See O 3 r 1(2) of the Rules of Court 2021.
(78) See Litigation Conference Address at paras 2 and 15–16.
(79) Available at
(80) Available at
(81) Available at
(82) Available at and
(83) See JEP Welcome Address at para 22.
(84) Available at
(85) See Litigation Conference Address at para 32.
(86) See Sundaresh Menon, “From Family Law to Family Justice”, keynote address at the Law Society’s Family Conference 2020 (14 September 2020) (“Family Conference Address”) at para 33; and Sundaresh Menon, “Through the Eyes of a Child”, keynote address at the 8th Family Law & Children’s Rights Conference: World Congress 2021 (12 July 2021) at para 5.
(87) See Family Conference Address at para 19.
(88) See JDRN Opening Remarks at paras 3 and 5.
(89) See JEP Welcome Address at para 7.


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