TR EMERITUS

By Richard Lu  The Judiciary   “The judiciary (also known as the judicial system or judicature) is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "supreme court" or "constitutional court"), together with lower courts. The term "judiciary" is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (referred to as a "bench"), as well as the staff who keeps the system running smoothly.” ...... Wikipedia   Why is an Independent Judiciary an importance part of a liberal democracy?   In 1985, the UN General Assembly adopted the “Basic Principles on the independence of the Judiciary” at its 7th Congress.  With this, each member state is expected to guarantee the independence of the judiciary in the constitution and by law.  What does this mean?  Simply put:   ·         Judicial independence is the ability of a judge to decide a case free from pressures or inducements; ·         Institutions of the judiciary must be independent i.e. separated from the legislature and executive arms or any concentration of power; and ·         The principal role of the judiciary is to uphold the rule of law and ensure its supremacy.    If the judiciary is to be truly impartial and independent it must have special powers to keep its distance from:   ·        Political parties, ·        Government bodies, ·        Pressure and interest groups, and  ·        Be free from repercussions from all outside interferences and influences.   Basis of Judicial Independence   It is the duty of all governments and other institutions to respect and observe the independence of the judiciary on the following basis:   ·         Equality of all before the law; ·         Presumption of innocence; ·         Right to a fair and open or public hearing by a competent and impartial tribunal established by law; ·         Judiciary to decide matter before them impartially base on facts and in accordance with the law; ·         No interference whatsoever - internally or externally, with the judicial process; ·         No improper influences, inducements, pressures or threats; ·         Judicial decisions shall not be subject to revision(s); ·         Doctrine of Separation of Powers; ·         The principle is not compromised by judicial reviews, mitigation or commutation by competent authorities; and ·         Public bodies such as state departments, the military, government corporations as well as the state itself are subject to the same laws.   The executive branch often acts as the litigator and enforcer of criminal law.  It is inevitable that there are dealings between the courts and the executive branch.  The executive branch has a legitimate interest in the proper co-ordination of the justice system as a whole, but the co-operation is an administrative one only.  The government branches do not instruct the courts how to arrive at their decisions and the courts do not tell the police how to investigate or perform their duties.     Other requirements for Judicial Independence   a.       Remuneration and tenure   The term of office of judges, their independence, security, adequate remuneration, conditions of service, retirement age, pensions, etc. shall be adequately secured by law including:   ·         Removal from office; ·         Judges appointed or elected shall be guaranteed tenure until retirement age or expiry of their term; ·         A charge or complaints against a judge in his/her personal capacity shall be expeditiously heard under appropriate rules and procedures and provisions.  The judge in question shall have the right to a fair hearing; and ·         Judges shall be subject to suspension or removal if found unfit to discharge their duties.   b.      Open court requirement   Perhaps the most important safeguard for an independent judiciary is the ‘open court’ principle where justice is dispensed ‘in open court’’. With the ‘open court principle’, justice will not only be done, but will also “be seen to be done.”  ‘Seeing’ in this context enables the public to have access to trials and to reports of those trials and the actual reasons for the judicial decisions.   ·         Every member of the public has a right to enter any court at any time as a trial is in progress;  ·         The public has the right to be present to witness how justice is being dispensed in their courts; ·         The public can access if their judges are acting independently and in accordance with the law; ·         The press has the right to attend hearing and communicate to the public court proceedings; ·         The courts may restrict dissemination of information to ensure a ‘fair trial’; and ·         The courts give full recorded reasons for its decisions for the benefit of all and for public record.   c.      Requirement to communicating the Law to the People   It is difficult sometimes to explain the law and the legal system to the public. Those who are involved in the system, judges, lawyers, prosecutors, police and correctional institutuion personnel, must all reach out to make such explanations  d.      Judicial Appointment Process   To have a superior judiciary, greatest care must be taken at the initial stage and in the selection or appointment process:   ·         Persons selected for judicial appointment shall be of integrity and ability with appropriate training or qualifications; ·         In the selection of judges, there shall be no discrimination on the grounds of race, colour, sex, religion, political orientation, national or social origin, property or birth or status; ·         That a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory; ·         There shall be safeguard against judicial appointments for improper motives; ·         The judicial function is often a creative one and it is necessary to recruit highly trained, competent, ethical and intelligent men and women,   reflective of the society they serve; ·         The need to remunerate them appropriately and with substantial salaries reflective of the society they serve; ·         This element of creativity, the special adjudicative function that judges play and their role in society makes their job of particular importance to a balanced society; ·         This is even more so if their reasons and decisions become precedents because of the effect these decisions will have on subsequent cases and the development of the law; and ·         Because of the significance of the initial selection process, it may be useful to review various judicial selection processes in place in a number of jurisdictions.   e.      Common Law Systems   ·         The body of law based on precedents i.e. on the prior decisions of judges; ·         Statute law legislated by the state plays a significant role and so does the law made by judges (called the common law); ·         Common law is made as judges decide cases and state the rationale for their decisions; ·         The accumulation of principles goes into a body of law that evolves to meet social changes and expectations; and ·         In a common law system, statute law (including constitutional law) predominates over common law.   f.        Civil Law Justice Systems (not applicable to Singapore) ·         Most of the judicial systems of major industrialized nations do not operate on the common law system, but rather in a legal system sometimes referred to as the civil law; ·         In this system the legally trained individual follows a career path into the judiciary, frequently directly from law school; ·         Typically the judicial personnel participates initially in some level of service in the judicial administrative branch, progresses to lower levels of judicial service, and then is promoted to higher levels; ·         Judicial structure is more hierarchical and specialization is possible; and ·         A judge’s progress depends on the performance assessments of his or her superiors.   ·         Elective Judicial Appointment (not applicable to Singapore) In the United States, many state judges are elected.   g.      Judicial Associations   Judges are free to form and join associations of judges or other organizations to represent their interests, promote professionalism and to protect their judicial independence.  Quoting the late Justice Thurgood Marshall of the US Supreme Court:   “We must never forget that the only real source of power that we as judges can tap is the respect of the people.”   DISCLAIMER: The writer is not a legally trained person but one who may be considered as “better read”.  The sources of the information are from text found in books, articles and in the Internet.  It is the writer’s aim to promote discussions.  The writer recognizes the subject is a difficult one and certain portions of the article may require further detailed explanations.  The article is deliberately kept short in the hope that it would informative and stimulate interest.  He apologizes if parts of the article are found wanting.  Read More →

By Lawrence Pek Even though Singapore is a Democratic Country, I am concerned that there little if not, no concept of Separation of Powers, which is a very critical but common trait of any democratic country. Please allow me to quickly introduce the concept to you and the basis of my concerns with application to my homeland, Singapore. In Political Science 101, you will be introduced to the concept of Separation of Powers – simply under this model, the state can be divided into branches or estates, each with separate and independent powers and areas of responsibility. The normal division of such estates is into an Executive, a Legislature, and a Judiciary. The Separation of Powers is designed to distribute authority away from the Executive Branch - an attempt to preserve Individual Liberty in response to tyrannical leadership throughout history. The Executive Officer is not supposed to make laws (the role of the Legislature), or interpret them (the role of the judiciary). The role of the executive is to enforce the law as written by the legislature and interpreted by the judicial system. The intentions for any state to adopt such separation are to ensure Personal Liberty, Check and Balances and critically, the Distribution of Authority (away from the Executive Branch). Personal Liberty Even though there are several intense discussion and study of Liberty and Liberalism, in the simplest form, the individualist theory of government holds that the state should protect the liberty of individuals to act as they wish as long as they do not infringe upon the liberties of others. The right to assembly, free speech and expression is covered under each and every citizen’s Personal Liberty. Checks and Balances Any 1 of the 3 branches of government (Judiciary, Legislative or Executive) should never be given supreme powers. Further to induce cooperation between these branches, they are effectively given the same quantum of powers, despite their roles and governance being different. As an example – the Executive Branch will not have any role, authority to decide on the Structure, Operations or Decisions from the Judiciary. Upon the passing of a Bill (Laws) by the Legislative, they will not have a say on how the Executive Branch implement and enforce these Laws. Below is a quick example of how the United States of America which the Executive and Legislative Branches of Government clearly demarcates their Roles and Responsibilities. You will be clear about WHAT is separated and hence you can formulate yourself, WHY it is separated. Above and beyond the Separation of Powers, the United States has in place several other contingencies which ensure the sustainability and continuity of their way of life. Legislative Branch Executive Branch Makes All the Laws Executes All the Laws Controls all the Monies – Makes the Budget, Taxes, Borrows or Lend Execute the spending authorized by the Legislature Sets, Oversees, Investigate all the Rules for the Executive and its Officers Preserve and Protect the Constitution, Faithfully executes all the laws of the United States. Only the Legislature can Declare War and Martial Law Controls the Military (Commander-In-Chief) Confirms the Head of the Executive Branch and Judiciary Officers (Judges) Creates Treaties, Appoints (Recommends) Judges and Other Executive Heads Even though we often see conflicts between the Executive and Legislative Branches, (The Presidency and Its Cabinet vs. Congress), we have to admit that the strength, the core and the spirit of the American culture exists in part due to The Way its Politics is Structured. In the Singapore Context One of the critical issues which Modern Singapore faces now is the assumption that all the Organs of Government are under the directions of the Ruling Party, the PAP. The key basis of my assumption is that the Head of each and every Ministry is helmed by a Key PAP leader. The People Association (PA) which runs all the Town Councils, Grassroots Organization, which directly impacts the daily lives of its citizens is also very much under the preview of the PAP. The average Singapore citizen will be hard pressed to make this differentiation in Singapore, simply not because such demarcation do not exists but rather, the lines are blurred b/w Government Organs and the Ruling Party. Further it is always those Few Good Men from the PAP, which helms the Key Positions both in Government as well as the Legislature. The Electorate and the Election Process Singapore maybe a 1st World Economy with World Class Process and Brands, but its People is Uneducated, Under Exposed and has been more often than not, accused of being Apathetic. The common man is often described as being uncaring, disinterested and aloof on all matters political. Even though these assumptions may be true, but let’s ask ourselves, Why is it so? Can it change? The Singapore Electorate needs to clearly understand what options exists, that it is the government’s role to take care of its people, move the economy forward and protect the very constitution which is swore to preserve and protect. The Government Powers are given to it by its people, in order for it to organize structure, plan and execute its roles and responsibility back to its citizenry. The gap which has never been filled (many do not even understand it exists) is due to the fact that the only news paper (government backed Main Stream Media) – The Straits Time (with circulation of over 500,000 daily) is constantly performing the role of the government’s mouthpiece. Its justification (maybe to itself) is to ensure social cohesiveness and stability. It does not independently assess the merits of any government policies, does not relentless pursue the truth of alternative stories, options or opinions, nor does it sees itself as having this burden. The burden of Education of what is possible; of what are the options to its readership. The Election Process As a simple compare and contrast to the US Election Process (every 4 years) – the key differences with the Singapore process are as follows. Primarily a 2 Party State – You can either vote for Blue (Democrats) or the Red (Republicans), based on what their party platforms are (they will spend a lot of money to gain your awareness), for the person that you trust. This is for each and every of the 52 states in the U.S. You can vote for any Independent (neither Blue nor Red) Candidate, but those are few and far between. Every 4 years, the America gets to vote for their President, however, the prelude is such that both Democrats and Republicans will field their own candidates and allow the electorate to choose which candidate can eventually win the Party Nomination (in the last election, Hillary Clinton and Barack Obama fought to the bitter end, while John McCain had a smooth endorsement since his rival back down early in the Republican Nomination). After each Party’s nomination is finalized, then there is the fight for the eventual office of the Oval Office. You effectively decide who will head up the Legislative Branch, the President of the United States. The Process was designed so that the electorate has a choice, by his / her own vote to decide on either the candidate or the party (platforms). The issues are clear, the candidate campaigns hard for votes and almost everything is fairly transparent and accountable. Virtually, everything that I have described above do not exists in Singapore. At this point, I will choose not to elaborate further on our current election process in that I disagree with the terms and condition which is exists and implemented. If it is my hypothetical assumption that the rules of elections is designed to keep the ruling party in power, it is therefore designed to reduce the chances of the opposition from gaining a majority in parliament. It is therefore reasonable to finally interpolate that the ruling party is reducing or robbing the electorate from its most important crucial rights which is the right to choose who should organize and govern them. In Conclusion The Objective of my article is 2 folds – to highlight, to educate, what a basic Democracy should entail, in its lowest common denominator, what is missing and hence what we could, or rather, we should be expecting. Secondly, if we understand and we want to achieve a state of true democracy, then we need to understand that with Separation of Powers, we need not fear the change of any Ruling Party that merely organizes the Executive Branch, leaving very much the Legislature and the Judiciary intact. The Singapore Miracle created and boasted by the ruling PAP Party has created a country with a unique DNA, one which the Founding Father, with a Few Good Men, deemed to lead the country, creating policies which they think is best for the country. The PAP (or often called the nanny) seems to justify its paternal instincts on the basis that “daddy knows best”, the electorate is still uneducated and immature, that we will never know what we want or what is best for ourselves. I would like to make an assumption as part of my conclusion, that who and how we went about in our years of Nation Building, Cannot and Should not be how we proceed henceforth. The new world order plays by very different rules. We cannot, should not continue with the same culture of paternal supervision and implementations. The initial 44 years of nation building is very much over, the next stages of Singapore should be one of Political Awakening, of Self Preservation and Robust Deliberations. The livelihood and future of Singaporeans are in the very hands of its electorate and not that of its Ruling Party. The Winds of Change are blowing…. Other articles by Lawrence Pek: >> Exposure: The element of change for Singapore and Singaporeans >> A deeper understanding of the “Foreign Talent” issue >> Where is my country going >> Strategies for the next election 2010/11  Read More →

Perfect spin is so elusive Andrew Bolt From: Herald Sun March 05, 2010 12:00AM  POOR Peta Duke. If she hadn't somehow typed the ABC's address on the email she'd actually meant for her boss, she'd be a hero. "You've done it again, girl!" Planning Minister Justin Madden would probably have chortled. "Your plan will do the trick." With emphasis on the word "trick" - as in one more deceit by those pea-and-thimble shysters you now elect in these spin-spin days. You know the kind of thing - stacking committees to produce the "right result", fudging surveys to prompt the longed-for answer, and launching sham inquiries to give your crusading politicians exactly the dodgy conclusion they always wanted. But, alas. Duke, eyes no doubt whirling from another frantic day of spinning in the Brumby Government's media unit, last week accidentally emailed her plans for the Government's latest "trick" to the ABC, and now must pay the price for being caught doing precisely what she's paid to do. Denounced by the suddenly moral Premier, John Brumby, and the suddenly outraged Madden, she was "demoted" to doing, er, what she always does. Paid to spin, and now "punished" as spin, by a minister whose other new title - "Minister for Respect" - is pure spin, too, to trick Indians into thinking this Government is cracking down on racist thugs. It's a circus, folks. You've no doubt heard about Duke's precise "crime" - drawing up a document titled "Minister for Planning Justin Madden's Media Plan" to help her man rig the blocking of a proposed redevelopment of the heritage-listed Windsor Hotel. The problem, she wrote, was that the "Windsor Advisory Committee report is expected to recommend that development go ahead". The solution: "Strategy at this stage is to release it for public comment, as this affects the entire community, and then use those responses as reason to halt it, as we have listened to community views." Well, listened to only the "community views" they were sure they could incite. The Government has since tut-tutted that Duke's email was something it neither wanted or endorsed, being "not professional" and filled with "speculative language". Heavens, they would never do anything so cynical. But they do, and many of you - I'm afraid to say - keep falling for it. Want some examples? Right from the very start of this Labor Government, we got exactly the kind of rigged public consultation Duke proposed a decade later. Remember the Government's plans then to give us five "safe" injecting rooms for the addicts it falsely claimed would otherwise die by the hundreds? It appointed a committee of experts under Prof David Penington who - surprise! - already agreed with the Government's mad scheme, and who commissioned a survey that claimed that two-thirds of residents in the five lucky druggie-packed municipalities agreed, too. Except, of course, the Government never released the survey questions that prompted this highly unlikely support, and it soon dropped the whole idea when it became only too obvious that the public was in fact furiously against it. Later came the Government's even more reckless spinning over our water supplies. Maniacally opposed to building the dam that fast-growing Melbourne clearly needed, it appointed just the kind of committee that would say it was damn right, too. This 2003 committee on Melbourne's water resources was stacked with "experts" sure to share the Government's green ideology - dam-buster Tim Fischer of the Australian Conservation Foundation, Mary Crooks of the Victorian Women's Trust (yes! really!) and a spokesman for the Victorian Council of Social Service. And the Government got the echo it wanted - a committee that called dams "unacceptable", suggested "exploring the drought response strategies adopted by indigenous people", and pooh-poohed even a desalination plant (which Labor then opposed), saying we'd be right until 2050 if we just used a lot less water. Wrong, insane and wrong. Three strikes, but is the Government out for fiddling such a trick? But here I am criticising the apprentice for the sins of the master. If you want a real lesson in salt-the-mine spin, look no further than your Prime Minister. YOU'D think Kevin Rudd actually set the bar with the trick he pulled with the bill of human rights that is Labor policy - a bill that lets Leftist judges bring in the laws that Leftist politicians can't get through parliament. He stacked a committee, led by Jesuit Frank Brennan, and had it do "public consultations" of the kind that were sure to be dominated by the very activists who'd back Labor. And, indeed, Brennan's committee found that 87.4 per cent of the 35,014 submissions it got agreed - goodness, yes - we did need the human rights act the Rudd Government wanted. Which would make you think every sane person backed this idea, right? Ahem: consult now the survey Brennan unguardedly commissioned, that found that whatever Rudd, his committee and their consulted experts thought, two-thirds of Australians were sure their rights were already protected just fine, thanks. Not that this mere detail stopped the committee from telling Rudd his plan was just peachy. Yet Rudd trumped even that effort, and anything John Brumby could dream up, with his 2020 Ideas Summit. Remember that farce of two years ago? Rudd invited 1000 of our "best and brightest" - actually almost all tame Leftists, including 118 members of the GetUp group alone - to give the Government a plan for our future. This was meant to show you that all Australians, or at least the smart ones, agreed with Rudd. Indeed, delegate Sam Mostyn even boasted: "We do represent the whole community." And - like magic - these 1000 "best and brightest" almost unanimously agreed that so many of Labor's policies were fabulous, whether it was fighting "global warming", giving us that bill of rights, creating one-stop childcare centres, reviewing the tax system or assembling fresh armies of bureaucrats. Not one person at Rudd's summit was a declared climate sceptic. Most tellingly, only one even objected to the summit's call for a republic, even though the latest Galaxy poll shows fewer than half of the rest of us want such a thing. BRILLIANT spinning. Fabulous, and better than anything Peta Duke could suggest to our Minister for Respect - yet I'd still have expected voters to have learned by now to see through such flagrant fakery. But, no. There you lot go again, falling for the latest trick of these watch-my-hand slyboots - of appearing sorry for having stuffed up what they'd once pretended to fix. There was Rudd last week, in strife and suddenly admitting his Government deserved a "whacking" because "we haven't been up to the mark so far". And there, almost within hours, were Brumby and South Australian Premier Mike Rann playing the very same trick to turn scorn into sympathy by putting the con in contrition. "We've been not delivering as well as I would have hoped," sighed Brumby.   "We haven't communicated our message well enough," cried Rann. What a great trick, but to have three leaders play it at once forces me to ask young Duke a hard question. Peta, you didn't muck up your emails again, did you - sending to Rudd and Rann advice meant only for Brumby.   Source: http://www.heraldsun.com.au/opinion/perfect-spin-is-so-elusive/story-e6frfhqf-1225837126876  Read More →