The common law does not protect adequately

low thia khiang

The Workers Party issued a media statement to note their opposition to the Bill as the grounds that common law already provides for the protection of the administration of Justice.

Perhaps the Opposition puts too much faith into the common law: it is law made by judges rather than Parliament. In considering cases that has not been deliberated by the legislature, judges use previous cases to help justify a fair decision.

We need to be mindful though that the common law has its own set of weaknesses. The most controversial being that it is undemocratic. Parliament is elected, judges are not. Sometimes judges can make decisions that are inconsistent with social values.

It is not easy for the layman to find answers in the common law. Before the contempt of court Bill was passed, it would have been very difficult for a small time publisher, or an individual to know for certain if he is breaching the law or not and what his punishment is.

Take for example, murder.

We take it for granted that our Penal Code provides a definition of what constitutes a culpable homicide or a murder and provides the minimum and maximum limits to punishment.

Ask a British lawyer what would constitute a manslaughter or a murder and you won’t get a simple answer. Their problem is because there is no statutory law on murder and they have to rely on the common law – judicial law that is made up of individual cases over hundreds of years. You get one case, that overturns another case, that in turn gets overturned…and then the courts decide to revert back to the decision made several judgements ago.

“The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have been unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform”, quotes a British Law Commission consultation paper in 2005.

Do we want our legal system to become like this? Where an unelected judiciary makes up the punishments and laws for us?

Sure, one might say that the Bill was “unclear”. But that’s a problem that is inherent and proliferate in statutory law. Ask a lawyer something as simple as: “Who is protected by the Employment Act” and I’m sure you’ll get a lively discussion.

It is the nature of the law to have “grey areas” because the humans are infinitely complex. However, statutory law sets out instructions for all to follow and in so doing, takes the matter another step towards legal clarity.

The merits of the law has had much discussion and I believe most people are concerned about this two questions and their relevant answers:

Q: Does this mean judges and judgements can never be criticised?
A: No, one can criticise and disagree with the reasoning or merits of a court judgment.

Q: Does contempt of court stop discussions on anything to do with the legal system?

A: No, contempt of court laws seek to stop improper influence on court proceedings and the outcomes. Comments on the legal system itself, such as whether certain laws should be changed or whether penalties are too harsh or not stiff enough, do not run afoul of contempt of court laws.

The rule of thumb is: when a case is before the courts, let the system of justice run its course before you publish any opinions. The new rules are there to preserve fairness to every defendant – everyone has a right to fair trial.

  1. The English Legal System is unique with their branches leading and fused into the main trunk. It has evolved and tested through time in their
    history. Statute law is man made and presided over Common Law as it is to breach the gap found lacking in Common Law. Besides the different branches, some covering social norms and practizes, it has the Jury System, Privy Council as the highest Court Of Appeal and the House Of Lords which are vital veins and arteries of the English Legal System which are shred away by some or most independent Commonwealth Countries for the better or worst still remains to be seen. For shredding them is like rejecting Wisdom acquired by maturity and old age, in order to be ignorant and therefore blissed.

    1. We don’t have a jury system, the Privy Council does not apply to Singapore anymore and the HoL (which by the way, has been reformed into the Supreme Court) has little to do with us. Which brings to question – why would we want to allow too much common law, decided by a foreign court, with foreign social system and foreign interests to influence Singaporean judicial decisions?

      All law is man made. But at least Parliament made law is democratic.

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