SINGAPORE – Some might wish to see a more proactive judiciary spearheading change by taking a stand on contentious societal issues, but the courts are not front runners for social change or architects of social policy, Chief Justice Sundaresh Menon said on Thursday.
He was speaking at the Singapore Management University (SMU) in the first of seven conversations between the judiciary and the community, which will also be hosted by the law faculties of the National University of Singapore and the Singapore University of Social Sciences.
In his keynote speech on the role of the courts, Chief Justice Menon referred to the constitutional challenge against Section 377A of the Penal Code, the colonial-era law criminalising sex between men that was repealed by Parliament in November 2022 after intense debate.
He cited the case as an instance when the courts in Singapore have refused to create rights out of nothing when they cannot be found in the text of the Constitution, whether expressly or implied in the light of other provisions.
In February 2022, the Court of Appeal held that the right to express one’s sexual identity is not a right that is protected under Article 9 of the Constitution. Article 9 enshrines the right to life and personal liberty.
“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,” he said.
The Chief Justice said it was 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,” he said.
He added: “Public confidence in the rule of law – rather than the rule of the courts – is what we should be striving for.”
Chief Justice Menon contrasted Singapore’s approach with the development of United States law regarding abortion rights.
In the well-known case of Roe v Wade in 1973, the US Supreme Court held that the Fourteenth Amendment of the US Constitution contained a “right to privacy” that protected a pregnant woman’s right to choose to have an abortion.
He cited the writings of US jurist Ruth Bader Ginsburg, who said the ruling ventured too far and appeared to have provoked conflict by catalysing the right-to-life movement and a reaction in Congress and state legislatures to curtail the decision.
After half a century of socio-political contestation, the US Supreme Court in 2022 overruled Roe and held that the Fourteenth Amendment did not protect the right to abortion.
Chief Justice Menon said removing issues of public and moral significance from the political realm and placing them into the judicial sphere short-circuits the process of democratic change, and leads to the polarisation of societal discourse and debate.
The judiciary, the legislature and the executive each have separate responsibilities as co-equal branches of government, he said. This calls for the courts to be guided by judicial modesty, and recognise that judicial power has legal and constitutional limits.
He added that judicial modesty and self-restraint should 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.”
