Yet comparatively little is publicly known about Mr Menon or his jurisprudential views, given his largely private sector background before he became Attorney-General in 2010. Even his time as a Judge of Appeal (he left the Attorney-General’s Chambers for the bench only recently in May 2012) has been unusually short, so there is not much of a track record to examine there. (Mr Menon also served as judicial commissioner – a part-time position meant to test a nominee’s suitability for appointment to a permanent position – of the Supreme Court between April 2006 and March 2007.)
Arguably, the same was true of perhaps the most famous of his predecessors, Chief Justice Yong Pung How, who spent much of his career away from the practice of law before he took office. But a case should be made for a different approach, given that nowadays the public expects to be able to scrutinise officials more closely than they did previously.
In this context, Mr Menon’s appointment is significant in several aspects. First, it seems to mark a reversion to tapping talent from outside the public sphere. The outgoing Chief Justice, Mr Chan Sek Keong, spent more than half of his lengthy career in public service, first as a judge followed by Attorney-General, prior to being appointed in 2006. In this, Mr Menon’s elevation appears to more closely resemble that of Mr Yong’s, who had been plucked from the banking sector in 1989 by his former classmate and then Prime Minister Lee Kuan Yew to head the judiciary. This may suggest a return to a more overtly political rationale for choosing nominees.
Second and perhaps more importantly, the change of guard at the top of the judiciary comes at a time when glimmers of a more liberal jurisprudence are beginning to be discerned in the normally conservative establishment. The government’s hardnosed stance on issues like the death penalty and gay rights are starting to face some pushback, a development that has stemmed in good measure from some surprising rulings by the courts.
For example, a Court of Appeal judgment delivered by Chief Justice Chan in 2009 unexpectedly opened a path to challenging the constitutionality of the mandatory death penalty, though the latter was affirmed in 2010 in a subsequent trial. Still, the encouragement that it gave to anti-death penalty campaigners might have been a factor in the government’s decision earlier this year to relax the rules regarding the application of the mandatory death penalty.
Another significant development came in August 2012 when the Court of Appeal ruled against the government in a case over the section 377A of the penal code (which criminalises homosexual acts). Embarrassingly for the government, the judges explicitly contradicted its longstanding positions on the issue, such as its promise not to enforce the law, in addition to criticising the prosecution’s handling of the case.
Whether such a trend would be reversed under the incoming Chief Justice would be a question of interest to many civil society activists. It is for reasons such as these that appointments such as the Chief Justice should be more thoroughly scrutinised. One way would be for the MPs on the Government Parliamentary Committee on home affairs and the law to be allotted time and a public venue to question the nominee about his views on jurisprudence and legal cases. Though Parliament has no legal authority to veto the appointment, what matters is that the public gets to hear from the nominee and learn more about his views – which are likely to have a significant impact on their lives – before he takes office. This would in any case also be in line with the government’s own pledge of being more accountable and open.