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In the Gettysburg Address, Abraham Lincoln said that "democracy is a government of the people, by the people, and for the people". The application of democracy in Malaysia is seen through the process of elections,^[1] as prescribed under Part VII of the Federal Constitution (FC),^[2] and read alongside the Thirteenth Schedule. This process translates votes cast by the electorate into seats in the legislative assembly, whose existence and composition are governed by Articles 44 to 48^[3] and Articles 52 to 56^[4] of the FC.^[5] The FC also recognises rules for eligibility of candidates in Articles 47 and 48 and a system of universal adult franchise as per Article 119.^[6] Rousseau's theory, that "the sovereign may put the government in the hands of the whole people or of a majority of them, so that among the citizens the magistrates outnumber the merely private individuals",^[7]recognises the electorate as the political sovereign and the monarch as the legal sovereign, with elected officials being accountable. Furthermore, an independent, competent and non-partisan Election Commission (EC), as constituted and represented in Articles 113 to 115^[8] of the FC, is integral in ensuring that election outcomes represent the will of the people. Aristotle contended that "if liberty and equality, as is thought by some are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost". It is evident that democracy returns the power of government to the people, and this can only manifest through an effective electoral system. However, the integrity of the Malaysian elections has not fared well in Harvard University's Electoral Integrity Report, and was ranked 114th out of 127.^[9] The prescribed voting age of 21^[10] also creates a scenario where the winning coalition derives its votes from only 15% of the population.^[11] Therefore, the extent of representative outcome provided by Malaysian elections will be analysed, with reference to the general elections in 2008 (GE12), 2013 (GE13) and 2018 (GE14).

Introduction

Introduction

1. At risk of over-simplification, the debate in the law of illegality broadly comes down to a choice between a discretionary approach and a rule-based approach. The majority in the UK Supreme Court case of Patel v. Mirza selected the former approach. In contrast, the Singapore approach following the Court of Appeal decision of Ochroid Trading Ltd v. Chua Siok Lui is a more limited discretionary one.

Structure of presentation

2. My paper traces the recent developments in the illegality defence within Singapore law before setting out some outstanding issues for consideration. In the next 23 mins or so, I will make four main points: (1) recent developments of the illegality defence in Singapore, (2) the differences between the Singapore approach and that of the majority in Patel, (3) the potential application of the illegality defence as developed in Ochroid to different areas of private law, and (4) some further observations.

Globally, there is an unfettered right of access to court proceedings by the public, which is consilient with the principle of open justice as it is regarded as an essential tenet of any justice system to guarantee public confidence, independence, and accountability in the administration of justice. In Malaysia, Section 15 of the Courts of Judicature Act 1964 states that all civil and criminal matters shall be deemed to be open and accessible to the public. Journalists are often keen to report on cases that are newsworthy and those that garners public interest wherein they act as an intermediary between the public and the courts.

To generations who have passed their lives in the law his is truly clarum et venerabile nomen. Lord Denning was a colossus who strode the judicial landscape in the second half of the last century shedding lambent light on ticklish legal corners and illuminating the legal and judicial landscape with his effulgence. He was unique. His tenure as a judge expanded the universe of judicial discourse. This year 2024 marks his 125th birth anniversary (January 23) and today, March 5 is his 25th death anniversary. It is appropriate that we remember him, draw inspiration from his life and work and salute his memory.