A judge’s role in a legal system would be more of playing a role in interpreting law as compared to making a law which would not be a main role of the judge itself. As laws will fall under many different parts, the written law and unwritten law will be the basic ones that separate the two.
Written laws will be such as firstly, the constitution which is the basic framework of the country and basically, the supreme law of Singapore. It can be amended, but by members of the parliament. Next will be acts of parliament whereby the legislation process happens which starts as a bill to a law. Point to note that the constructing of laws is not in any field of inclusion for a judge to be in as they are all decided by the people that are chosen by the citizens and is technically trusted to maintain the country when a judge is not.
But in unwritten laws, a role that a judge plays in will be in terms of case laws in which it is not locked into any statute but instead judgements that the courts have delivered. And once a case has been decided, future cases with similar fact scenarios will be bound by the earlier decision if the earlier decision is made by a higher court in the same hierarchy or a decision made from the court’s previous decision which will be the doctrine of stare decisis. Thus, a “judge-made law” on a case by case basis.
My personal opinion that as judges know the law by hard from experience and studies, they will not follow their own private judgement but to follow the law which is already at hand when a “new question” is presented to them. Thus, a judge is to merely solve it from the existing principles at hand. I believe that this is what differ when answering the question on a judge making a law. Does a judge plays a part in the development of the laws? No, they are merely an audience which must adhere to it. But, they ‘adapt’ as the time past by and more cases appear due to changes in technology and moral rights which is most vital to me as a personal opinion on the legal system.
b) What is your understanding of the doctrine of ‘stare decisis’? Using suitable case laws, explain the advantages and disadvantages (if any) of the doctrine when applied by the judges. (15m)
The doctrine of stare decisis would take two forms one in which that a higher court’s decision binds a lower court which would mean that a lower court must follow a higher court’s decision on a similar matter. And to put it in the context of Singapore’s court hierarchy, the High Court must follow Court of Appeal decisions. Similarly, Subordinate Courts must follow High Court and Court of Appeal decisions and so on.
The second form would be the courts following a previous decision that they themselves have made. Thus meaning, the Court of Appeal usually following previous decisions of the Court of Appeal and the High Court will be following previous decisions of the High Court and so on. The aim of the doctrine will be to ensure that similar cases being treated similarly.
Thus, the judges are only required to apply the radio decidendi which is the reason for the decision of the higher court with the same hierarchy such as the ratio decidendi found in the decisions of the Singapore Court of Appeal are strictly binding on the Singapore High Court, the District Court and the Magistrate’s Court. Judges also sometimes give their views of law which are not related to the dispute at hand called obiter dicta and these are not strictly binding.