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Prospective Judicial Pronouncements And Limits To Judicial Law-Making

Zhuang WenXiong

(2016) 28 SAcLJ 611

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 law-making 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