Citation(2016) 28 SAcLJ 611
Date01 December 2016
Published date01 December 2016

Public Prosecutor v Hue An Li [2014] 4 SLR 661 held that the appellate courts have the discretion, in exceptional circumstances, to make prospective pronouncements of law. This article is split into two parts. It first examines several objections that have been made to prospective pronouncements and argues that prospective pronouncements are as arbitrary as ordinary retrospective rulings and do not violate the separation of powers. Prospective pronouncements are also entirely within the ambit of judicial law-making: prospective pronouncements are as prone to error and as undemocratic as retrospective rulings and can be wielded as a tool to reduce the propensity for polycentric effects; and because the Legislature is not necessarily better equipped or better positioned to deal with unfairness flowing from changes in the law. The second part examines how prospective lawmaking will potentially be applied in the future, with particular emphasis on the differences between civil and criminal cases, the power to precisely tailor civil remedies and criminal punishment, and the interaction between prospectivity and statute.

I. Introduction

1 The proposition that a court may make prospective pronouncements of law is not new. The acceptability of the proposition has, however, waxed and waned. The Singapore courts recently considered the issue, and firmly came down on the side of permissibility. In Public Prosecutor v Hue An Li1 (“Hue An Li”), a specially convened three-judge High Court held that the appellate courts had the discretion, in exceptional circumstances, to make prospective pronouncements of law. Sundaresh Menon CJ, speaking for a unanimous court, considered the issue of prospectivity to be

underpinned by competing policy considerations: on the one hand, retroactivity would incentivise participation in the system of justice and prevent arbitrary outcomes; on the other, prospectivity would accord with the rule of law and give due regard to legitimate expectations.3 The High Court did not consider objections to prospectivity based on arbitrariness, the separation of powers and the limits of judicial lawmaking because these were not live issues before it. This article is split into two parts. The first part4 argues that prospective pronouncements are no more and no less arbitrary than ordinarily retrospective rulings, do not violate the separation of powers and are entirely within the ambit of judicial law-making. The second part5 analyses how prospectivity may be applied in future cases.
II. Prospective pronouncements are as arbitrary as retrospective rulings

2 As a preliminary point it would be apposite to point out what prospectivity actually entails:

(a) There is some sort of change to the law, or there is a first-time judicial pronouncement that is contrary to what the law was expected to be.

(b) Previously applicable law, or the law as it was expected to be, is applied to the case at hand.

(c) The new propounded law takes effect prospectively from a specified date, normally the date of the release of the judgment.

3 The argument that prospective pronouncements of law are arbitrary is not new. Mishkin, for instance, pointed out that any selection of a definite point in time as the effective date of a new prospective rule seems to involve arbitrariness, in part because it is hard to provide reasoned grounds for selecting one moment rather than another.6 Judge Traynor wrote that it would be fortuitous for some to be given the benefit of new rules while others are denied the benefit because of arbitrary cut-off dates.7

4 In reality, prospective pronouncements are no less and no more arbitrary than ordinary retrospective decisions. A retrospective decision is simply one that is unbounded by time, and the principles and rules of law propounded within the decision apply to all cases before the courts regardless of when the liability-causing events occurred. However, all decisions are subject to the defences of limitation and res judicata. Limitation (and the equitable doctrine of laches) is meant to obviate the dangers of trying a case for which relevant evidence has been lost, either physically or due to failures of memory, and to protect against the uncertainty of potential defendants being left in the limbo of not knowing whether or not they will be sued.8Res judicata is concerned with finality in litigation and making sure that a party is not vexed twice in the same matter.9

5 Both the defences of limitation and res judicata implicate weighty policy considerations, but the net result is that a failing litigant or litigant who is out of time is left worse off through no fault of hers if it transpires that she would have been successful had she been able to take advantage of a favourable change in the law. A favourable change in the law is not recognised as one of the exceptions to res judicata.10 A litigant who failed to litigate within the prescribed limitation period, perhaps because she was advised that her claim would fail, would similarly not be able to sue outside the prescribed period by invoking a favourable change in the law. The only litigants who would be able to take advantage of a subsequent favourable change in the law are those who have chosen not to litigate11 and have a legal cause of action that is not out of time, or an equitable cause of action that is not subject to laches.

6 In this respect retroactive and prospective judicial decisions are, arguably, equally arbitrary; there is no real difference between a prospective pronouncement of law by a court slated to apply from the date of the release of the judgment, and a retrospective decision, whose real reach is only backwards in time by the duration of the applicable limitation period to those who have not litigated.

III. Illusory separation of powers objection to prospective pronouncements

7 Prospective pronouncements run up against the objection that the courts are trespassing on hallowed legislative ground. In the context of the US, Black J has said that “prospective lawmaking is the function of Congress rather than of the courts”.12 Similarly, the Saskatchewan Court of Appeal has said that “giving prospective effect to law is endemic to legislatures”.13

8 It is trite to state that the Legislature has the role of enacting law. It was once thought that the Legislature was the only branch of government that could make law14 but this no longer holds true. Rubin has convincingly pointed out that many of the laws promulgated by legislatures are directed at administrative agencies,15 which are in turn delegated the power to make minute and detailed administrative regulations.16

9 The Judiciary also has the power to make law. This was not always recognised to be the case. Blackstone was the foremost proponent of the declaratory theory of law. Under this conception, the law was a Platonic ideal that was immanent and unchanging: “decifions [sic] of courts of juftice [sic] are the evidence of what is the common law”.17 Judges were therefore not making any law and were oracles entrusted with the task of discovering and expounding on what the law was.18 Declaratory theory, which has been regarded as a fairy tale19 and has been definitively discarded by apex court decisions, is no longer adhered to.20

10 It is true that, descriptively speaking, legislative acts tend to be prospective in nature. However an “ought” cannot be derived from an “is”, and with respect to the Saskatchewan Court of Appeal, the fact that prospectivity is “endemic to legislatures” does not lead to the proposition that a court ought not to make prospective law. There are in fact two “oughts” at play here: first, legislatures ought to legislate prospectively; and second, courts ought not to make prospective law.

11 The arguments in favour of legislatures legislating prospectively are well rehearsed and centre on the rule of law. Raz was of the view that laws should be prospective, open and clear in order to be able to guide conduct, and that one cannot be guided by a retroactive law.21 Fuller opined that a retroactive law is a monstrosity, and to speak of governing or directing conduct today by rules that will be enacted tomorrow is to talk in blank prose.22

12 However, these rule of law arguments are not and cannot be peculiar to legislature-made law. The repugnance of a rule lies not in its source, but in its retroactivity and the consequent failure to guide conduct. By this metric it makes no difference whether the rule is made by the Legislature or the Judiciary. Nonetheless, it could be argued that common law rules are (at least by default) retroactive, and by that measure the common law would be more repugnant than statutory law. Indeed this is not a new refrain. Bentham was extremely scathing of the common law precisely because of its retroactivity, and famously compared judge-made law to a man making a law for his dog: “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it.”23 At this point the second “ought”– that courts ought not to make prospective law – breaks down. The reluctance to depart from retroactivity followed ineluctably from the declaratory theory of law; the abandonment of declaratory theory and the naked admission that judges are indeed making law mean that courts must face afresh the issue of retroactivity in the light of the rule of law.

13 It is illusory to equate the separation of powers with a blanket prohibition on judges making prospective law. The separation of powers deals with the allocation of powers between governmental organs; under the classical view the Legislature makes law, the Executive executes the law and the Judiciary interprets the law. It has already been pointed

out that the classical view is too simplistic and cannot countenance the modern state, where the Executive and the Judiciary are also involved in the making of law. That being the case...

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