Justice Judith Prakash’s magnificent legal career winds down

At the funeral ceremony for Mr Joseph Grimberg in August 2017, Justice Judith Prakash sat recalling the words the former judicial commissioner and long-serving helmsman of law firm Drew & Napier told her in 1992, when she informed him she had been offered elevation to the Bench.

Mr Grimberg had responded that it was indeed a great honour and that she should accept. But being a judge was also a very seductive job and one must not be seduced by the power that comes with it, he had advised. Judges ought not to get carried away; after all, it was not their power, but the state’s, that they were administering.

Besides, one day it will go away and you need to learn how to live after that day, he said.

“You know, Jaya,” she said, turning to her husband, Mr Jaya Prakash. “Throughout my judicial career, I have tried to remember and live by what Joe told me that day.”

The day that Mr Grimberg spoke about has dawned.

Singapore’s first woman judge to be appointed to the Court of Appeal ends her tenure there on Dec 18, after having been reappointed three times since her initial superannuation in 2016 at age 65. She turns 72 on Dec 19.

From January 2024, she takes on the role of Senior Judge hearing complex cases in the Court of Appeal – which comes with a significantly lighter workload.

Her 31-year-long stint on the Bench – Judicial Commissioner, High Court Judge and Justice of Appeal – has seen her writing some 645 judgments. More than half of these have been “reported” – which means they were chosen by a selection panel for inclusion in law reports, which is a signal to the legal fraternity that the judgment carries a useful legal proposition. 

“Justice Prakash has had a long and stellar career both at the Bar and on the Bench,” said Mr Patrick Ang, managing partner at Rajah and Tann, the biggest local law firm here. 

“She has contributed greatly to our legal jurisprudence through her many written judgments and her work in law reform. She played a key role in Singapore’s rise and growth as a global arbitration hub.”

Those who have appeared before her in court will all attest to her extremely sharp and quick mind, he added.

“She not only expected precision in analysis and use of legal terms, those who lapsed into the ungrammatical would be promptly corrected.” 

The last judgment she wrote – on a dispute involving Australian winegrowers and an Italian consortium over the use of the “Prosecco” label that allowed the appeal brought by the Italians – speaks to her trademark brevity.

Only 36 pages, or 77 paragraphs long, it begins with a crisp statement about geographical indications – “many would say that the limestone-permeated water of Ipoh lends a special quality to the kway teow produced there” – and ends with a pat on the backs of counsel for both parties “for their well-written and researched submissions”.

No surprise there. In a July 2023 speech at the Singapore Management University, she told graduating students that in all areas of her working life, she had learnt that communication was the key skill.

The soft-spoken judge known for her formidable court presence – some lawyers reputedly keep sober “Judith Prakash ties” in their office cupboard to wear to her court, lest they be rebuked for dressing too loudly – had an uncertain start to her academic career.

Daughter of the late Gerald de Cruz, a restless, sometime-communist, journalist and trade union activist, Judith Evelyn de Cruz went through five schools, starting with Siglap Primary, then Opera Estate Girls Primary. Just as she entered her teens, she lost her mother Coral to a rheumatoid heart condition, unsettling the lives of the future judge and her brother, the retired Singaporean diplomat Simon Tensing de Cruz.

Mrs de Cruz had been private secretary to the late David Marshall, and Mr Marshall’s wife Jean Marshall would thereafter be a sort of mother figure to the young Judith. When Mrs Marshall died in 2021, Justice Prakash delivered the funeral oration.

It was at Marymount Secondary School that her grades picked up and those scores were good enough for her to get accepted into Raffles Girls’ Secondary School for the A-level course.

Fulfilling a dream that her mother had once sought for herself, she would go on to emerge in 1974 with a first-class honours in law from the then University of Singapore, with the graduation ceremony taking place in a venue that no longer exists, the National Theatre. 

The legal fraternity she entered was a world apart from what it is today. Snail mail, noisy typewriters clacking away, and the biggest law firm of the time had only 18 lawyers.

Today, the working environment tends to be much quieter even as law firms have become significantly bigger – Rajah and Tann, for instance, has 400 lawyers.

Unsurprisingly, her pupil master was Mr Marshall himself, a leading criminal lawyer of his time. Since most of the work done by Mr Marshall and then senior partner Amarjeet Singh was in criminal law, there was not much civil work.

So, Mrs Prakash moved to up-and-coming commercial law firm Chor Pee & Hin Hiong, where a third partner was Dr Thio Su Mien, who had been in the first law class at the University of Singapore. 

The following year, in 1976, she moved to Drew & Napier’s shipping department, filling an opening caused by her husband Mr Prakash going off to fulfil his deferred national service.

She would soon become a salaried partner, and eventually full partner, staying in the position until she got the call from then Chief Justice Yong Pung How that would elevate her to the Bench – and lead to the conversation with her polished mentor and boss Mr Grimberg, whom she considered a North Star “and better looking than (the singer) Tom Jones”.

Joining the judiciary meant a severe pay cut, but the upside was the fixed hours, useful when you have children in school. Mr Grimberg recognised that she was more interested in dealing with the law than engaging in the increasingly demanding need to network with clients. He knew that this was a major upside for her decision.

When she started on the Bench, the job was challenging as, having been a transactional lawyer for the preceding decade, she was out of touch with court procedure – even if the first cases sent her way tended to be accident cases. 

Among those was one in which she had to assess damages for the death of a victim of the collision in January 1983 of the oil rig Eniwetok with the cable cars over Sentosa. Because there were no family courts then, she also heard family disputes.

“When you’re a judge, you have a chance to influence to an extent,” Justice Prakash told The Straits Times. “We take an incremental approach. If you are too bold and go a bit too far, you tend to get overturned on appeal. But you do have a chance to express your ideas about the law.”

That said, Chief Justice Sundaresh Menon has stressed that the judge’s job is not to make policy but to apply the law, she added. This, so far as Justice Prakash is concerned, means: ascertain the facts, apply the law, and if necessary, do an exercise of interpretation.

Some issues can be emotionally vexing for even the most dispassionate judge. In April 2022, Justice Prakash was on the Appeals bench that dismissed a last-minute plea by convicted Malaysian drug trafficker Nagaenthran K. Dharmalingam, who had been on death row for more than a decade. Surely, that could not have been pleasant?

“I do not make the law,” she responded. “And I have made an affirmation that I will carry out the law to the best of my ability, and without fear or favour. It just comes back to the basics: What does the evidence show you? And if you have to convict, the consequences are decreed by Parliament. 

“It sometimes makes you miserable. You try to distract yourself by doing something else.”

Sometimes other issues arise. Singapore, after all, is not a large city and people do tend to know one another. 

For instance, when she heard the Jumabhoy family dispute in the mid-1990s – her father had known the family well – she summoned the lawyers involved for the various parties.

They included her old boss, Mr Lim Chor Pee, representing founding patriarch Rajabali Jumabhoy, and her former junior colleagues at Drew & Napier, Mr K. Shanmugam and Mr Davinder Singh, representing various other family members. She asked them if they objected to her hearing the case.

“They thought about it, and said no,” she recalled. “If they’d said yes, I would have recused myself.”

I asked Justice Prakash about another case that caught much attention – one involving the polarising Section 377A, which criminalised gay sex.

Was the Government’s repeal of the Act timely, and did it come as a sort of relief to the Court, which might otherwise have to rule it as unconstitutional?

“We didn’t actually say that it was an unconstitutional law,” she said. “But what we said in the judgment led to the Executive taking opinion from the Attorney-General – which resulted in the repeal of S377A.

“I think they thought society had moved on. That’s why they repealed it.” 

As only the second woman to be elevated to the High Court, and the first to be appointed to the Court of Appeal, she is something of a national icon for women.

I asked her whether the gender mix in courts had improved since her early days on the Bench.

“It is much better now,” she said. “About a fourth of our High Court judges now are women. I am sure we will do better because there are a lot of good women lawyers out there.”

Through it all, she has somehow found time to raise and tutor four children, care for an ailing mother-in-law who would eventually die, travel, read voraciously in non-legal areas, and serve as chair of the Raffles Girls’ School (RGS) board for a quarter-century, aside from being a trustee at the Singapore Indian Development Association (Sinda) and the Eurasian Association.

“Judith brought to RGS her razor-sharp mind and inclusive mindset which very clearly contributed to a collective voice in our decisions for the school,” said Ms Wang Look Fung, former director of corporate affairs at Keppel Corp, who served as her deputy on the RGS board.

“This was reflected in a major milestone and huge exercise in the history of RGS – the big move from Anderson Road to Braddell Rise. She was relentless in the pursuit and negotiations for the bigger site the school is on today.”

That said, some Raffles girls continue to complain that the new premises are still smaller than what Raffles boys have across the road.

The judge also maintains an active social life. 

People who have dined at her table speak of a generous and observant hostess.

“I once told Judith that I showed up for dinner hoping she’d serve her superb roti jala and chicken curry,” said one. “She told me ‘I didn’t put it out because that’s what I served you the last time you were here’.”

In such situations, said people who know her, the formidable, no-nonsense jurist comes alive as a relaxed, unaffected person capable of puckish humour.

When a young woman nervously inquired whether the appropriate form of addressing her was “Your Supremeness”, Justice Prakash, shaking with silent mirth, apparently responded: “Call me whatever you like!”

What lies ahead? For starters, the new role should help her plan her travels around her photography-loving husband’s work schedules, after years of him planning his holidays around his wife’s court vacations.

The Prakashes are consummate travellers, having been to every continent except Antarctica. Last week, they were in Laos, taking things slow and catching up with their reading.

“Judith goes to bed with her conscience clear,” said Mr Prakash, who has his own successful mediation and arbitration practice that operates from Maxwell Chambers.

“I am an early riser. When I glance across the bed, I always find her sleeping soundly.”

Some significant cases in Justice Judith Prakash’s judicial career

High Court cases

ABW v ABV (2014): A family law case involving care and control of children in a situation where one parent was apparently trying to spoil the children’s relationship with the other. Here, Justice Prakash observed that with respect to familial relationships, such alienating behaviour might not be deliberate and could have many causes. If it is found that the parent having care and control of the child had deliberately or consciously interfered with the bond between the child and the other parent, switching the care and control of the child is a possible solution.

Loh Luan Choo Betsy, administratrix of the estate of Lim Him Long and others v Foo Wah Jek (2005): A tort law case centred around whether an individual could claim damages when injured by another’s breach of statutory duty. Justice Prakash held that breach of a statutory duty does not in itself give rise to a private law cause of action for damages. It is only when the language of the written law indicates that Parliament created the statutory duty to protect the rights of a class of members of the public and also intended to give them a private right of action for breach of duty that such a cause of action will arise.

This was later endorsed by the Court of Appeal in 2022.

Appeals Court cases

Anupam Mittal v Westbridge Ventures II Investment Holdings (2023): A case centred around the scope of arbitration. The Court of Appeal provided guidance on what law determines whether a particular dispute can be settled by arbitration instead of by court action. The principles provided by the Court have been widely discussed in many places where arbitration is a popular mode of dispute resolution. This decision has wide-ranging impact on how cross-border disputes are to be decided.

Wham Kwok Han Jolovan v Public Prosecutor (2020): A case about constitutional law and fundamental liberties. The Court held that in deciding whether a law conflicts with the Constitution, it will consider the matter neutrally and will not start on the assumption that the law is valid. The Court said a three-step framework had to be applied to determine whether a law deviated from the Constitution in a way that could not be permitted. First, whether the legislation restricted the constitutional right in the first place. Secondly, if the restriction was one which Parliament considered “necessary or expedient” in the interests of one of the purposes listed under the Constitution. Third, the court had to analyse whether, objectively, the derogation from or restriction of the constitutional right fell within the permitted purpose from which, under the Constitution, Parliament could deviate from that right. It was imperative to appreciate that a balance had to be found between the competing interests. Ultimately, the court found that section 16(1)(a) of the Public Order Act was a valid deviation from Article 14(1) of the Constitution.

Reed, Michael v Bellingham, Alex (2022) with A-G as intervener: A case involving interpreting the meaning of “loss or damage” in the Personal Data Protection Act. The Court held that loss or damage suffered by a person whose data was misused included emotional distress. It said nothing justified narrowing the meaning of “loss or damage”. Furthermore, Parliament intended to provide robust protection for individuals’ personal data. The ever-increasing volume of personal data being collected and processed increased the risk of misuse of the data.

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

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