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Clash of Powers: Judicial, Legislative and Executive Powers

Judicial power is vested in the judiciary, including the Supreme Courts and Subordinate Courts, pursuant to Article 93 of the Constitution. This power is exclusively vested in the Judiciary and cannot be exercised by other constitutional organs. Any attempts by the Legislature or the Executive to usurp the judiciary’s power would be a violation of the principle of separation of power. The enforcement of this principle ensures that the Judiciary is able exert its power without having to defer to the other constitutional organs and this affords the judiciary, “a degree of independence from the other two branches of government”. However, there are instances in which the Legislature and Executive encroach into the powers of the Judiciary.

Legislature and Judicial Power

The legislature intrudes upon judicial power in two instances:

• When a piece of legislation purports to create a new court with Supreme Court powers; and
• When the legislature seeks to truncate the jurisdiction of the Supreme court below the threshold of its original and appellate jurisdiction.

Creation of New Courts with Supreme Court Powers

In the case of Hinds v The Queen, the Jamaican government enacted the Gun Court Act 1974 which purported to create a new “court” to try firearm offences. The court subsequently found that the Gun Court Act was unconstitutional as it attempted to transfer the power to determine the severity of the punishment to be inflicted to a specific class of offenders from the Jamaican judiciary to a review board. Since a majority of the members of this review board were not qualified to exercise judicial power, the Privy Council held that the review board was not a court and hence could not exercise judicial power.

However, the validity of legislation to establish a new court with Supreme Court powers is not pre-emptively precluded. In order for a piece of legislation to establish a court with Supreme Court jurisdiction, there needs to be a substantive examination of the composition and powers of the new court. The members of this court must enjoy the same level of constitutional protection as the higher judiciary. This is based on the principle that Supreme Court level powers and jurisdiction cannot be transferred to a body, which does not enjoy the same protection as Supreme Court judges. Such protection is essential to ensure that bodies wielding judicial powers would not be subject to executive control.

Truncation of Supreme Court Jurisdiction

A key distinctive feature of the Supreme Court is its original and appellate jurisdiction. Such jurisdiction is vested only in the Supreme Courts and not the Subordinate Courts. As a result, the legislature is not empowered to truncate the jurisdiction of a Supreme Court below its established threshold as this would result in a “false description” of the “Supreme Court”. Similarly a court consisting of members of the lower judiciary should not be empowered with all jurisdictions exercisable by the Supreme Court. This is because, it would deprive citizens of the safeguard that their cases would be tried by a court which consist of judges which enjoyed judicial independence from the influence of the other branches of the government by way of Supreme Court judges protection which includes, security of tenure.

The Executive

The Executive of Singapore comprises the President, Prime Minister and the Cabinet. Similar to the Legislature, the Executive has, in certain circumstances, encroached into the judicial power of the Judiciary.

Clemency Powers Under Article 22P

Pursuant to Article 22P of the Constitution of Singapore, the President is vested with clemency powers, which he, on occasion can exercise on the advice of the Cabinet. Therefore, the President can pardon an accused individual who has been administered a sentence by the courts. It is important to note however that such powers can only be exercised on advice of the Cabinet.

On the onset, this would seem like an unlawful usurpation of judicial power, as the President is in fact interfering with the sentencing powers of the judiciary. However, it has been argued that such pardoning powers are not an exercise of judicial powers and therefore does not infringe the principle of separation of powers. Clemency power is an “act of grace” belonging to the Executive, as mercy begins where legal rights end. Therefore, although prima facie, the President’s clemency powers may interfere with judicial powers, both should be considered as disparate entities.

Legislature Affecting Sentencing Function of Judiciary

Legislation that purports to give the Executive powers, which interfere with the sentencing function of the Judiciary, has been held to be unconstitutional due to wrongful exercise of judicial power.

Generally, such cases can be divided in 3 classes:

• Legislation which enabled the Executive to actually select the sentence to be imposed in a particular case after the accused person was convicted by a court of law;
• Legislation which enabled the Executive to make administrative decisions directly related to the charges brought against a particular accused person, and which had impact on the actual sentence; and
• Legislation which enabled the Executive to make administrative decisions which were not directly related to any charges brought against a particular accused person, but which had an impact on the actual sentence eventually imposed by a court of law pursuant to legislative directions that the Executive’s administrative decisions were a condition which eliminated the court’s sentencing discretion.

Legislation that Enables the Executive to Select Sentence

An invalid trespass by the Executive into the sentencing function of the Judiciary is apparent in cases where legislation empowers the Executive to select the sentence that is to be meted out. In the case of Deaton, the impugned legislation enabled the Revenue Commissioners of Ireland to choose between two punishments that were to be imposed by the courts. The Irish Supreme Court held that this was in conflict with the principle of separation of powers as it left the determination of penalties to the Executive instead of the courts. Therefore this was an unjustifiable infringement of judicial power.

Legislation that Enables the Executive to Make Administrative Decisions Affecting the Eventual Sentence

In the case of Muktar Ali, the impugned legislation gave the Director of Prosecutions of Mauritius (“DPP”) the discretion to prosecute an accused charged for drug trafficking in either one of two courts of which conviction in the latter would lead to the imposition of the death penalty. The Privy Council affirmed that prosecutorial discretion was wide enough to allow the DPP to decide whether a person was to be charged under one offence or another. However, this discretion did not extend to allow the DPP to select the court of trial as it would be tantamount to allowing the DPP to select the sentence that would be imposed on the accused if he was convicted.

Legislation that Enables the Executive to Make Administrative Decisions Not Directly Relating to the Charge

A case which falls under this category is that of Totani, where the impugned legislation which served to compel the court to impose a control order against individuals who were members of organisations which the Executive declared to be a risk to public safety and order. Thee orders were to be administered despite the fact that these individuals were not convicted of any offence by a court of law. The High Court of Australia declared the piece of legislation unconstitutional. It was found that in Totani, the Australian legislature disguised what was in substance an executive decision as a judicial decision.

Other Instances Where Exercise of Executive Powers Clash with Judicial Powers

In the case of Salwant Singh s/o Amer Singh, the Singapore government had entered into an agreement with India where it promised that if Singh was extradited and tried in Singapore for his credit fraud offence, he would only receive a maximum sentence of 7 years imprisonment. The judge in the case held that this interfered with the judicial discretion in sentencing, which is part of judicial power. Therefore, the agreement was invalid and declared unconstitutional.