The term “palm tree justice” is a fairly well-known term in legal contexts, used to describe legal redress meted out at the whim of the adjudicator with little regard for the certainty one expects from a system of rules. The term generally carries a negative connotation. We see it from time to time in local judgments and it appears to be a favourite of Justices of Appeal Andrew Phang and VK Rajah. Out of the 7 local judgments in Supreme Court history which have used the term (at least according to Lawnet), 5 were written by either of these two judges. These include the well-known Court of Appeal cases of Lee Hsien Loong v Singapore Democratic Party, Lau Siew Kim v Yeo Guan Chye Terence and Lock Yeng Fun v Chua Hock Chye, as well as the famous Digilandmall.com High Court case that propelled VK Rajah into worldwide academic fame and local judicial stardom.
Have you ever wondered where the term originated? It is something I have often found quite puzzling. My attempts at researching this matter have generally pointed towards the practice of local Muslim judges in the dusty plains of medieval (or maybe even modern-day) Arabia in dispensing justice to villagers under the shelter of a central oasis of sorts.
Were I a cadi dispensing justice under a palm tree I might have been able to solve the problems which arise in this case. - Lawton LJ in McPhail v Persons Unknown
These are very wide words, but I am quite unable to see how it can appear to the court to be just and convenient to make such an order … Were it otherwise, every judge would need to be issued with a portable palm tree. - Donaldson LJ in Chief Constable of Kent v V
“If there were to be the amplitude of discretion for which [counsel] contends, I find it very difficult to see how one could formulate any sensible principles, for the exercise of discretion, or how one could draw a boundary to delimit the area which should enjoy the shade of the palm tree. - Bridge LJ in Allen v Sir Alfred McAlpine & Sons
I hope the use of the term sounds to you, as it does to me, quite illiberal and reeking of a snooty air of judicial superiority and historicism: “my legal system has rules and precedents and this other palm tree system doesn’t.” My brief study of Islamic law this semester has shown me that this is far from the case, and that qadis are as bound as any common law judge to a complex system of rules and principles. A few very powerful men (the Prophet and then the Rightly-Guided Caliphs) held a lot of judicial power in the early days of Islamic jurisprudence, but since the 9th century AD or so, Islamic jurisprudence has been an enormous field of study that takes years to master.
I therefore hope judges choose a different term when describing unfettered or poorly exercised judicial discretion, rather than denigrate a legal system that is in fact far older and perhaps even richer than the English common law. There is no need for colonialist attitudes in the 21st century, least of all in Singapore, a country which recognizes Islamic law to some extent, that counts as neighbours two majority-Muslim states where Islamic law plays a significant role, and a country which itself was not too long ago victim of attitudes represented by flippant phrases such as “palm tree justice”.
Of course I recognize that this is simply a convenient linguistic turn of phrase and judges probably do not realize its connotations. My research has also thrown up another possible source for “palm tree justice”, but this is merely some guesswork on my part. Deborah, the only female judge in the Bible, is said to have delivered her judgments from under a palm tree in Judges 4:4-5
And Deborah, a prophetess, wife of Lapidoth, she judged Israel at that time.
And she dwelt under the palm tree of Deborah between Ramah and Bethel in Mount Ephraim: and the children of Israel came up to her for judgment.
However, it is not clear how a connection can be made between this and the modern usage of the term, since it does not appear that Deborah was an unprincipled judge. Nonetheless, given the age of the Bible, this may be the true origin of the term, whose meaning somehow morphed along the way.