Gary Kok Yew Chan

The Right of Access to Justice: Judicial Discourse in Singapore and Malaysia

This is an essay on judicial discourse in Singapore and Malaysia pertaining to the nature and scope of the right of access to justice, including access to justice for the poor. We will examine the statements and pronouncements by the Singapore and Malaysia judiciary in case precedents and extra-judicial statements. Some of the issues explored include the legal status of this right of access to justice (namely, whether it is a right enshrined in the constitution or merely a right derived from the common law and whether it is qualified by economic and other interests) and the associated rights of legal representation, legal aid and contingency fees.

Prospective Overruling in Singapore: A Judicial Framework for the Future?

The doctrine of prospective overruling has been applied in Singapore since the 1990s with a focus on the applicability of nullen crimen nulla poena sine lege embodied in the Singapore Constitution. The underlying objectives are to maintain fairness to the accused persons and to protect their legitimate expectations in criminal cases. The recent landmark decision in Public Prosecutor v Hue An Li has extended the applicability of the doctrine beyond criminal cases to also include civil matters. Though the general default position is that judicial pronouncements apply retrospectively and prospectively, the High Court has indicated that judges may exercise their discretion to limit the retroactive effect of such judicial pronouncements. It has developed a framework comprising a few factors for determining if prospective overruling should be invoked in a given case. The factors include the extent of the entrenchment of the existing rule or principle, the extent of change of the law, the reliance on the existing law and the level of foreseeability of the legal change. This judicial framework points the way forward for prospective overruling in Singapore and, at the same time, allows some flexibility for judicial identification and weighing of the specific factors according to the facts of the case.