Supreme Court of Judicature (Amendment) Bill

Order for Second Reading read.

12.30 pm

The Senior Minister of State for Law (Mr Edwin Tong Chun Fai) (for the Minister for Law): Mr Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time".

Sir, this Bill is linked to the next two Bills on the Order Paper, the Constitution of the Republic of Singapore (Amendment) Bill and the Judges' Remuneration (Amendment) Bill.

Sir, may I therefore propose, with your permission, that the substantive debate on all three Bills takes place now. Members will be welcome to raise questions or express their views on the three Bills during the debate. And we will still have the formal Second Readings of the Constitution of the Republic of Singapore (Amendment) Bill and also the Judges' Remuneration (Amendment) Bill to ensure that the procedural requirements are dealt with.

Mr Speaker: Please proceed.

Mr Edwin Tong Chun Fai: Thank you, Sir. Mr Speaker, our judicial system is well-known not only for its commitment to upholding the rule of law, but also for its efficiency, competence and integrity.

In a survey conducted by my Ministry in late 2015 on how Singaporeans view the Courts, 92% said they trust and had confidence in our legal system. In the Worldwide Governance Indicators by World Bank in 2018, Singapore ranked in the 97^th percentile for Rule of Law. In the Global Competitiveness Index published by the World Economic Forum in 2019, Singapore maintained the top position for the efficiency of its legal framework in dispute resolution. In fact, Singapore has been ranked first, out of more than 140 countries, in this component of the index, every year for the past 10 years. Singapore has also scored highly for judicial effectiveness in the Heritage Foundation Index of Economic Freedom in 2019.

MinLaw has been working with the Courts to ensure that Court proceedings are efficient and that the quality of justice remains high. To this end, for instance, we established the new Family Justice Courts in 2014, with the aim of taking a more multi-disciplinary and collaborative approach to family disputes. We established the Singapore International Commercial Court (SICC) in 2015, as part of our drive to bolster our status as a hub for resolving commercial disputes.

The Office of Transformation and Innovation was also set up under the auspices of the Supreme Court in 2018. As part of the overarching Courts of the Future blueprint, it has commenced work on various projects and technological enhancements, with a view to enhancing access to justice, improving processes and also embracing innovative ideas for change. One upcoming initiative is the use of video-conferencing for a variety of non-trial hearings.

The current Bills continue in this spirit by facilitating a better use of judicial resources and also introducing procedural amendments to enhance the flexibility and also the efficiency of Court processes. This will also translate to real and practical benefits for Court users both in terms of time and also costs.

A key change is the restructuring of the Supreme Court to establish a new Appellate Division of the High Court. The Court of Appeal is the highest Court of the land. It hears both civil and criminal matters arising from decisions of the lower Courts and tribunals. The decisions of the Court of Appeal form a body of authoritative law that has shaped our local jurisprudence. The Court of Appeal has experienced a growing caseload for both criminal and civil matters. In 2013, there were 314 civil and criminal matters filed to the Court of Appeal. In 2018, the number of matters filed to the Court of Appeal increased to 490. Overall, the Court of Appeal heard 56% more matters in 2018 as compared to 2013.

In addition to the growing caseload, the Court of Appeal has also observed that the cases it is hearing are becoming increasingly complex. The Court of Appeal generally sits with no more than three judges to hear each case. In some of the complex appeals, the Chief Justice may convene an enlarged panel of appeal judges to hear the appeal. This is to allow difficult or novel issues to be considered with the benefit of the collective wisdom and insight of a larger pool of judges. There has been a growing number of written decisions issued by a five-judge bench of the Court of Appeal, which is itself indicative of the jurisprudential significance and difficulty of such cases. In 2015, by contrast, 4.3% of all reported decisions were issued by a five-judge quorum. By 2018, this number had increased to about 11.5%.

The increased caseload and complexity of matters have stretched the resources of the Court of Appeal. Thus far, the Supreme Court has taken interim measures to manage the increasing caseload and also the complexity in the Court of Appeal's docket. Some of these measures, Members would know, include having more High Court judges sit on Court of Appeal hearings and also increasing the sitting days for the Court of Appeal. However, we feel that these are just stop gap measures and a more long-lasting sustainable change would be useful.

This Bill, together with the Constitution Amendment Bill and the Judges' Remuneration (Amendment) Bill, will establish an Appellate Division of the High Court. This will allow civil appeals arising from decisions of the existing High Court to be distributed between two appellate courts, namely, the Appellate Division of the High Court – the new Court that is being set up – and the existing Court of Appeal, which will remain. These targeted structural reforms to the Supreme Court create a more permanent solution to the issues facing the Court of Appeal. The reforms will help to address the growing caseload and also allow the Court of Appeal to focus its resources as appropriate.

Let me now highlight the key features of this Bill for Members. First, in terms of the restructuring of the Supreme Court. Under the structural reforms introduced by the Bills, the Supreme Court will continue to comprise the Court of Appeal, which will remain as the apex court in Singapore and the High Court. The High Court will in turn be restructured to consist of the General Division of the High Court as well as the Appellate Division of the High Court.

I shall first touch on the General Division, before elaborating on the interaction between the Appellate Division and the existing Court of Appeal. In essence, the General Division will be the present-day High Court. As is the case today, it will include the SICC and also the Family Division of the High Court. The General Division will have all the jurisdiction and powers of the existing High Court and will hear all cases that fall within the original and appellate jurisdiction of the existing High Court.

Any originating case, appeal, stated case, or other recourse which presently lies to the existing High Court will continue to lie to the General Division. There will generally be no change to the current position on whether there is further recourse to an Appellate Court. Hence, if certain decisions of the existing High Court are currently final, then in most of these cases, those decisions of the General Division will likewise be final. Similarly, if decisions of the existing High Court are appealable with leave, or appealable as of right, then those decisions of the General Division will likewise be appealable as of right or with leave as appropriate. The original intention overall is to preserve the status quo with regard to the finality of decisions of the General Division.

Appeals arising from a decision of the General Division will be allocated between the Appellate Division and the existing Court of Appeal. Let me explain that. In general, the Court of Appeal will hear all criminal matters. It will also hear appeals or processes that are to be heard by the Court of Appeal under written law and prescribed categories of civil appeals. So, under written law, that is set out in legislation and in prescribed categories of civil appeals.

These prescribed categories will be set out in a new Sixth Schedule to the amended Supreme Court of Judicature Act (SCJA). Where the appeal falls within the categories of appeals prescribed in the Sixth Schedule, then a party should file the appeal or leave application pertaining to that appeal to the Court of Appeal. Where the appeal is not prescribed in the Sixth Schedule, a party should file the appeal or leave application to the Appellate Division, or otherwise in accordance with written law.

The appeals that have been prescribed are generally those that:

(a) are likely to have substantial consequences for individuals or society;

(b) may involve questions of law of public interest which would benefit from guidance of the apex court in Singapore;

(c) concern the general administration of justice;

(d) may involve novel questions of law, or new areas of law which would benefit from guidance from the Court of Appeal;

(e) may involve issues that are likely to be important and require earlier clarification from the Court of Appeal; or

(f) relate to strategic areas that would benefit from the stature of the apex court, such as the areas of laws which seek to bolster Singapore's status as a dispute resolution hub or debt restructuring hub.

Based on these principles, appeals arising from cases relating to constitutional or administrative law, appeals arising from decisions of the SICC and appeals arising from cases relating to the law of arbitration will ordinarily be allocated to the Court of Appeal. Those are examples; the list is not exhaustive.

Where a single appeal contains multiple issues, which I think Members would have their own experience with, some issues may fall within the prescribed categories, others may fall outside. In those situations, the appeal should be filed to the Court of Appeal. For example, if an appeal arises from a case relating to constitutional law, but also, as part of the case, raises issues touching issues on contract or tort law, that appeal should be filed to the Court of Appeal.

All criminal appeals currently heard by the Court of Appeal, will continue to be heard by the Court of Appeal. The Appellate Division will hear all other civil appeals that are not allocated to the Court of Appeal.

The prescribed categories may be amended by the Minister, after consultation with the Chief Justice, by order published in the Gazette. This will allow for the allocation of appeals between the Appellate Division and the Court of Appeal to be refined and also evolved, taking into account operational experience as well as evolving policy considerations. And obviously, as I explained earlier, on novel areas, which are currently prescribed, they may over time, not become novel anymore or it may well become settled with the passage of time. In those cases, there would be flexibility in moving cases or types of cases in and out of the Sixth Schedule.

The Appellate Division will ordinarily sit as a panel of three Judges. This reflects its stature and significance as an Appellate Court.

Let me now touch on some of the transfer provisions and explain that to Members. To provide for flexibility in the arrangements, the Court of Appeal will have the power to transfer to itself any appeal that has been made to the Appellate Division and vice versa. The Court of Appeal has that power, not the Appellate Division, to transfer cases from the Appellate Division to itself or cases from the Court of Appeal to the Appellate Division. This can happen, notwithstanding the Sixth Schedule allocation of appeals.

To give an example, the Court of Appeal may transfer to itself, an appeal which is ordinarily allocated to the Appellate Division, if the appeal concerns a dispute involving complex and novel points of law, and the Court of Appeal is satisfied that it will be more appropriate for the matter to be resolved by an earlier decision of the apex court, in other words, giving guidance at an earlier stage so that the law becomes settled on a key and important issue. The Court of Appeal may also consider factors such as whether there are conflicting judicial decisions on the point of law in question which merits clarification.

Conversely, the Court of Appeal may also decide to transfer to the Appellate Division, an appeal which is ordinarily allocated to the Court of Appeal. For instance, an appeal arising from a case relating to constitutional law is ordinarily allocated to the Court of Appeal. However, if the General Division has already rendered its decision on the case and the only issue on the appeal is one of costs, for example, then the Court of Appeal may well decide to transfer the appeal to the Appellate Division. So, the overall subject matter may fall within, but the issue at stake between the parties, might well relate to something straightforward. In that scenario, the Court of Appeal can exercise its discretion to transfer it to the Appellate Division.

As another example, an appeal arising from a case relating to contempt of court is ordinarily allocated to the Court of Appeal. However, if all issues on appeal relate to uncontroversial points of law, then the Court of Appeal may transfer the appeal to the Appellate Division. The same principles as I have explained will apply. Parties themselves may also apply to the Court of Appeal for the appeal to be transferred to the Appellate Division, if the appeal has not been filed to the correct Appellate Court. To be clear, after the Appellate Division has issued its decision on an appeal that has been transferred for its determination, it remains possible – although not the usual course – but possible for a party to bring a further appeal to the Court of Appeal. This will however be subject to the fulfilment of stringent criteria that I will come to in a while.

The transfer powers help to ensure that the Court of Appeal's resources are focused on the matters that necessitate a decision from the apex court. The matters that the Court of Appeal will have regard to, when deciding whether to exercise its powers of transfer, will be set out in the Rules of Court.

Where an appeal has been heard and decided by the Appellate Division, any further appeal against the decision of the Appellate Division may only be brought with the leave of the Court of Appeal. This is consistent with the practice in other jurisdictions such as the United States, United Kingdom and Australia, where there is no automatic right of appeal to the apex court.

All such applications for leave will be assessed based on criteria that is more stringent than the usual common law principles that govern applications for leave to appeal against a decision of the General Division. To be clear, if you need to seek leave to appeal from the first instance, High Court currently, or the General Division, those principles are fairly settled, I think Members know. But, the principles on which leave will be accessed to be granted for appeals from the Appellate Division up to the apex court, those would be applied in a far more stringent manner. Because in those situations, the parties would already have had one round of appeal.

The Court of Appeal will consider granting leave only if the appeal raises a point of law of public importance. The Court of Appeal may also take into consideration other factors, such as whether a decision of the Court of Appeal, as the apex Ccourt, is required to resolve the point of law and whether the interests of the administration of justice require the Court of Appeal's consideration of that point of law.

To be clear, so that I do not come across as suggesting that there are automatically three stages, three tiers of Courts, the Appellate Division should not be seen as a further tier of appeal that must be crossed before a matter can reach the Court of Appeal. Where an appeal lies from a decision of the General Division, then the appeal will lie either to the Appellate Division or to the Court of Appeal. It will not be commonplace for appeals to be brought to the Appellate Division first and then further brought on to the Court of Appeal. I hope I have explained that clearly enough.

The Bills also make a number of other amendments to help ensure the timely disposal of appeals, ensure better use of limited judicial resources and bring the overall cost of litigation down. Let me touch on four such initiatives.

First, under existing Court processes, the Court of Appeal will ordinarily sit in a panel of three Judges to hear an appeal or application. However, certain applications can be dealt with by one Judge or, in some cases, two Judges. Certain appeals can also be heard by a panel of two Judges. We will apply a similar approach to the Appellate Division. So, what I have outlined is the current position. We will apply that similar approach to the Appellate Division.

For the Appellate Division, parties will also have an option of consenting to a two-Judge coram to hear the appeal but that is subject to the approval of the Appellate Division. So, if both parties or all parties to an appeal consent, it can be heard by a two-Judge coram.

Second, the Bills expand the situations under which a civil appeal or application can be decided without hearing oral arguments. This is known as a paper hearing. To be clear, the language that I have used – appeals refer to the substantive appeals itself, the applications are applications within the appeals that will arise but are not dispositive of the substantive merits of the appeal.

Presently, a civil appeal or application may be decided on paper in a number of limited situations. These situations are, first, an appeal against the decision of the SICC where all parties to the appeal consent; and second, any application to the Court of Appeal.

The Bills expand the categories of cases that can be decided on paper in three ways.

First, the Appellate Division and the Court of Appeal will have the powers to decide specified categories of appeals without hearing oral arguments, if all parties to the appeal consent. So, again, party autonomy based on whether parties consent, then the Appellate Division and the Court of Appeal will have the ability to hear that on paper. These include appeals against interlocutory judgments, and appeals against judgments relating to the assessment of damages.

Second, the Appellate Division will be able to decide any appeal without hearing oral arguments if all parties to the appeal consent to a two-Judge coram and to a paper hearing. So, if all the parties agree, consent, it will be a two-Judge coram and to a paper hearing, then subject to the Appellate Division themselves considering that it is appropriate, then that can be a way in which that appeal can be resolved.

Third, the Appellate Division would also be able to decide any application brought before it without hearing oral arguments. This will not require the consent of parties and is in line with the current practice of the Court of Appeal.

The possibility of paper hearings provides parties with an option, subject to the Court's approval, of having their matters resolved faster and at a lower cost.

Next, let me touch on leave applications. This Bill simplifies the process for leave applications. Currently, when leave is required to appeal against a decision, the leave application is usually heard by the Court that has made the decision being appealed against. If that Court declines to grant leave, a further application for leave can be made to the Appellate Court. We will simplify this process such as where leave is required to appeal against a decision of the General Division, the relevant Appellate Court will hear the application for leave. The decision of the Appellate Court on the leave application will be final.

Fourth, the Bill makes five interlocutory orders at paragraphs 1(c) to (g) of the existing Fourth Schedule of the SCJA appealable with the leave of the Appellate Court. These five orders are currently non-appealable. So, what this amendment does is seek to increase the prospects of those types of cases being appealed, but with leave. This amendment seeks to refine the balance between procedural efficiency and also fairness to the parties.

There is also one amendment that we are considering in relation to the timing of when an application for further arguments will be taken. Members will know that if you look at the proposed provision 29B(2a), the word that is being used here is "date". The old provision uses the word "time". So, the date by which one has to make the further arguments, versus the time by which one has to make the further arguments. And we propose, at Committee stage, with Mr Speaker and Chairman's leave, to seek to make that amendment. It is a change that was not intended, an error carried through from the drafting. So, we propose to make that to reflect the position better. And I think the lawyers in this House will appreciate that the use of the word "time" will give a greater degree of flexibility in terms of when one starts the computation of time for filing the further arguments. So, I will seek to make that amendment at the Committee stage.

Sir, in summary, these Bills establish the new Appellate Division of the High Court and set out its jurisdiction and powers; and also introduce procedural amendments to enhance the flexibility and efficiency of court processes. Together, these amendments further enhance our judicial system, one that is already robust, flexible but now also allow for greater and more effective administration of justice. Mr Speaker, Sir, I beg to move.

Question proposed.

12.54 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, the three Bills propose amendments to restructure the Supreme Court by introducing a new Appellate Division of the High Court. My speech addresses the restructuring collectively proposed by all three Bills.

I support these amendments which will allow the Supreme Court to better manage its caseload in light of the increase in the number and complexity of cases. I have just three clarifications on how the Court of Appeal will exercise its jurisdiction and how the restructuring will affect the application of existing case precedents.

First, the new section 29E(1) proposed by the SCJA Bill allows the Court of Appeal to transfer to the Appellate Division any civil appeal made to the Court of Appeal. The proposed section 29E(5) clarifies that the transfer may be made even if it is a case that is ordinarily allocated to the Court of Appeal. Can the Minister clarify under what situations might the Court of Appeal make such a transfer?

Appendix B of the Ministry's press release on the restructuring of the Supreme Court suggests that the Court of Appeal may do so if the issues on appeal relate to settled law. However, what is settled law may not always be so clear cut.

For instance, the High Court in Public Prosecutor v Lam Leng Hung and others and the Court of Appeal in Public Prosecutor v Lam Leng Hung, more commonly known as the City Harvest cases, held that the directors did not fall within the definition of "agents" under section 409 of the Penal Code on criminal breach of trust by an agent. In doing so, the Court of Appeal and the High Court overturned what had then seemed to be settled law for four decades that directors will be liable for the offence of criminal breach of trust by way of their businesses as agents in respect of property entrusted to them in the course of their duties as directors.

Admittedly, the City Harvest cases were criminal proceedings. Nonetheless, the point stands that what appears to be settled law in civil proceedings may subsequently be contested.

The prescribed categories of civil appeals to be heard by the Court of Appeal are to be set out in a schedule, as the Minister mentioned, to the amended SCJA and may be amended by the Minister after consulting the Chief Justice.

While some flexibility is required, it would undermine the purpose of this categorisation and certainty for litigants if the Court of Appeal has unfettered discretion in determining which Court should hear the appeal. Can the Minister provide some guidance on how the Court of Appeal should exercise its discretion under section 29E(1) in transferring a case ordinarily allocated to its jurisdiction to the Appellate Division?

Next, under the new section 47(2) in the SCJA Bill, the Court of Appeal may grant leave for an appeal against a decision of the Appellate Division in a civil case if the appeal will raise a point of law of public importance. However, section 47(4) clarifies that the Court of Appeal is not required to grant leave even if the appeal will raise a point of law of public importance. Can the Minister share what policy considerations override the benefit of having the Court of Appeal rule on a point of law of public importance? In what categories of cases that raise a point of law of public importance should the Court of Appeal nonetheless decline to grant leave to appeal?

Next, can the Minister also clarify how the existing case precedents will apply in the restructured Supreme Court under the principle of stare decisis? The doctrine of judicial precedent means that the finding of a higher Court which forms the basis of its decision is binding on a Court lower in the hierarchy. Currently, the Court of Appeal is at the top of the hierarchy followed by the Singapore High Court, the District Court and the Magistrate's Court.

The Appellate Division will effectively be the final appeal Court for many categories of civil matters and litigants may not have recourse to the Court of Appeal. How persuasive will the findings of the Appellate Division of the High Court be compared against the findings of the current Court of Appeal before the restructuring takes place?

Sir, in conclusion, I hope the Minister can provide guidance on how the Court of Appeal is to exercise its powers and how existing case law is to be interpreted in light of the restructured Supreme Court. These clarifications notwithstanding, I stand in support of all three Bills.

12.58 pm

Ms Sylvia Lim (Aljunied): Mr Speaker, the Constitution Amendment Bill and the two related Bills are aimed at restructuring the Supreme Court for better efficiency in the light of caseload demands. In summary, I understand the key proposed changes to be as follows.

First, there will be a new Appellate Division of the High Court, which will hear most appeals from judgments in civil cases originally heard by the High Court.

Second, the channelling of cases to the new Appellate Division will free up the Court of Appeal to concentrate on appeals which are generally of wider public interest. Under the proposed changes, all appeals from criminal cases originally heard by the High Court, will continue to go on appeal to the apex Court. This is rightly so, as criminal cases heard by the High Court may involve sentences of life imprisonment or the death penalty, and thus deserve scrutiny by the highest appellate Court. As for civil cases, there is also a list of certain types of civil cases that may still be appealed to the Court of Appeal from the High Court.

While we have some queries on the details of the proposed changes, the Workers' Party is supportive of the rationale for the restructure of the Supreme Court. If the caseload is efficiently distributed, parties will have less waiting time for appeals, which must be a good thing. Nevertheless, I wonder whether the Government has considered how the change might impact legal costs payable by parties? In other words, will the introduction of a middle tier Appellate Division lead to cost escalation for appeals to the Court of Appeal, up from present levels? If so, this would be an unwelcome side-effect of the changes.

Sir, I would also like to take this opportunity to revisit one important issue on the staffing of the Supreme Court judiciary. The Constitution (Amendment) Bill provides at clause 2 that there are various categories of persons holding "high judicial office", which is the position today. Such persons are the Chief Justice, a Justice of the Court of Appeal, a Judge of the Appellate Division, a Judge of the High Court, a Judicial Commissioner, a Senior Judge or an International Judge. For some of these categories of judicial office holders, they are protected under Article 98(1) of the Constitution with security of tenure until age 65. Other categories, however, like Judicial Commissioners and Senior Judges, are appointed for short terms of one to three years. As we have said in the past, in our view, having short-term judicial office holders is not ideal.

Since we have debated this matter in the past, I shall keep my remarks on the principle short. The judicial branch of the Government plays a vital role in the country's system of checks and balances between the Executive Government, the Legislature or Parliament, and the Judiciary. The courts are called upon to adjudicate disputes and must decide without fear or favour, regardless of who the parties are. To give assurance that the judicial branch is robust, security of tenure for judges is fundamental. Just as Members of Parliament are accorded with Parliamentary Privilege to ensure free debate in this House, Judges are accorded the security of tenure till retirement age; it is further provided by the Constitution that the office of a Supreme Court Judge must not be abolished during the continuance in office of the Judge.

Sir, in 1979 when the post of Judicial Commissioners was created, one of the reasons given in this House was that they would help clear case backlogs. In 2014, when the post of senior judges was created, it was mentioned that retaining judges past their retirement age would enable tapping on their expertise. To serve these purposes, we would like to repeat our call for the Government to review the retirement age of Supreme Court Judges, to retire later, say at 70 years old instead. In past debates, I do not recall the Government rejecting outright such a move and today, I would like to give further grounds for this from a manpower utilisation perspective.

This suggestion for the retirement age of a Supreme Court Judge to be later than 65 is not radical. At US Supreme Court, judges are appointed for life. The current composition of the US Supreme Court includes two judges in their 80s, and the average age of the bench is about 67 years.

In Singapore, what is age 65 in today's context? Singaporeans today have better health and longer lives. Just looking around this House, there are several Members over 65, whom I need not name. Nobody thinks they are incapable of rational thought or are losing their marbles. At the national level, data from MOM shows that for 2018, the labour force participation rate of those aged between 65 and 69 is 45.3% – close to one in two persons. We see over 70s being cleaners and company directors. Being a Judge requires brain work but is not physically demanding. We believe extending the retirement age of Judges to 70 is entirely feasible, to let our Judges work longer with security of tenure, which will be superior to having short-term Judges.

Sir, we hope the Government will continue its reviews to improve justice, including reviewing the security and retirement age of Judges. In making this suggestion, it is not my intention to cast doubt on the integrity of those appointed as Judicial Commissioners or Senior Judges. Neither are my observations directed at international judges, who may hold concurrent appointments in other jurisdictions and whose caseload revolves around international commercial disputes. Thank you, Sir.

Mr Speaker: Assoc Prof Walter Theseira.

1.02 pm

Assoc Prof Walter Theseira (Nominated Member): Mr Speaker, thank you for allowing me to join the debate.

Sir, this Bill will strengthen the capability and flexibility of our high judicial system. I wish to speak on the tenure of Supreme Court Judges. Sir, the Constitution provides special protection for the tenure and terms of employment for Supreme Court Judges. Article 98 provides that they may not be removed from office except with cause, and even then, the recommendation of a tribunal of their peers is required. Their terms of office including remuneration must not be altered to their disadvantage after appointment.

Such protections are vital to safeguard the separation of powers and the independence of the Judiciary. Our Supreme Court Judges must decide cases that may adversely affect a sitting Government or the Legislature. Their judgments may have great public and political impact. In essence, they must be protected from political pressures from the hon Members of this House so that the quality and integrity of their judgments is unimpeachable. However, unlike all other appointments in Singapore, save the Attorney-General, a Supreme Court Judge has a mandatory retirement age of 65, or at most six months after then, specified in the Constitution itself.

I wondered whether the retirement age of Supreme Court Judges in Singapore had been designed with an express parliamentary intent. It seems that the retirement age Article originates in the Constitution (Amendment) Bill No 5 of 1969. The Bill inserted after Article 52 of the Constitution, 52F on the tenure of office of Supreme Court Judges. The original Article, and I quote, is: "Subject to the provisions of this Article, a judge of the Supreme Court shall hold office until he attains the age of sixty-five years or such later time not being later than six months after he attains that age, as the President may approve." The text has remained substantively the same since then.

The Explanatory Notes to the 1969 Bill state that this Article largely re-enacted the constitution of Malaysia's provisions on the Supreme Court, which were not present in the Constitution of Singapore. Our Constitution, of course, was originally designed for Singapore as part of the Federation. This was Minister for Law, Mr EW Barker's explanation to Parliament in the second reading debate on 12 June 1969. It seems that we have not then explicitly considered why the retirement age of Supreme Court judges is specified to be so. I note that the hon Member, Ms Sylvia Lim, has brought up this issue previously. I note also that the Malaysian constitution was amended in 2005 to raise the maximum age for a Supreme Court judge to 66 years.

Today's Constitution (Amendment) Bill deletes and substitutes the retirement age provision in essentially the same terms.

The necessity to provide Supreme Court Judges with tenure and guaranteed terms of employment is not disputed. What is an issue is the basis for why the retirement age should be specified in the Constitution and is different from that applying to the rest of society. This may be viewed as inequitable anytime the age applying to the rest of society is lower or higher than that applying to Supreme Court Judges. For many decades the retirement age of 65 for Supreme Court Judges was considerably older than the norm in Singapore and is still higher than the general retirement age of 62 today. Of course, one key difference is that Supreme Court Judges are required to retire at that age, whereas workers outside are not.

I think more generally, there are at least two main purposes of having such an age limit.

One is simply biological. While our wisdom might increase in years, unfortunately, our cognitive functions do not. The demands of high judicial office are exacting. It is obviously more graceful for a Supreme Court Judge to step down at the due time, than to be asked to retire on grounds of their loss of ability, or worse still, removed by a tribunal of their peers. It also assures us that no party has any reason to complain on the basis of age affecting the quality of jurisprudence, which is specifically prohibited by Article 98 of the Constitution. In this regard, Supreme Court judges are not too different from citizens in other jobs, except for the lack of discretion in when to retire.

The other factor which may be qualitatively important or different is the risk of ossification of ideas or principles in jurisprudence that fail to reflect contemporary values. We are all creatures of our time. Our formative years, our personal and professional experiences, contribute to the decisions that we make. It is no different for Judges. The central difficulty with those judicial systems that grant lifetime tenure, such as the Supreme Court of the United States, is that the composition of the court becomes determined by the longevity of the individual Judges. This is not logical unless longevity itself is a judicial virtue.

It is an issue even in a system with a set retirement age such as ours because the age of first appointment can vary both across individual Judges and across time. This means that the average tenure of a Supreme Court Judge can change even if the retirement age does not. If Judges are appointed early in their career, the end result can be a more ossified judicial system without any intent that this be so.

Therefore, it seems useful to consider: what are the aims of tenure of Supreme Court Judges? Why should the retirement age treat Supreme Court Judges different from the rest of society? What is a desirable length of tenure that protects Judges against political or public interference and yet mitigates the risk of ossification in jurisprudence? If there is such a thing as an ideal tenure length, would it be better to appoint Supreme Court Judges for suitably long, fixed terms, rather than until a set retirement age?

I do not of course expect that these issues can be addressed directly in today's debate. They are much more complex matters. Perhaps a commission of suitable experts could consider these, amongst other issues, for the future. But by drawing attention to this, I hope that future legislatures will consider the issue. Historically, we have not considered it so much.

We are not the only country to have to deal with this issue. In the United Kingdom today, there is an on-going debate about whether to raise the mandatory retirement age for Supreme Court judges above 70. That debate is an urgent one, created by the difficulty of finding suitable candidates for office who are both distinguished in the law and yet not too long in years. We do not want to leave it too late to have that discussion.

Mr Speaker, I support the Bill, but of course I shall not vote on this constitutional matter.

1.10 pm

Mr Dennis Tan Lip Fong (Non-Constituency Member): Thank you, Mr Speaker. Mr Speaker, Sir, I would like to seek a few clarifications from the Senior Minister of State on the Supreme Court of Judicature (Amendment) Bill. Section 29C(2) provides for an appeal from the General Division of the High Court to the Court of Appeal if the Sixth Schedule or any other written law so provides. Section 1 of the Sixth Schedule provides that for the purposes of section 29C(2), an appeal against the decision of the General Division in the exercise of its original or appellate civil jurisdiction is to be made to the Court of Appeal in the list of cases provided under A to J.

I would like to know how does the Government decide in such cases under the Sixth Schedule should be allowed a direct path to the Court of Appeal and it would not be appropriate for the Appellate Division to be the final arbiter body. I am saying this bearing in mind that for any existing legislation hitherto requiring the Court of Appeal as the final court hearing any appeal, it may still be possible to amend the relevant law, making the new Appellate Division as the final arbiter.

Yes, I am aware that the Senior Minister of State has provided some explanation in his opening speech and I thank him for that. I do wonder whether the Senior Minister of State can elaborate a little further on this. I would like to know what were the considerations behind the decision leading to the list of cases under the Sixth Schedule. For example, how does the Government arrive at the conclusion that it would suitable to have the Court of Appeal to hear cases under section 18(5) of the Maintenance of Parents Act and that it is not appropriate for such appeals to be now changed to, say, the Appellate Division instead.

Next, on section 29D, the Bill provides that under section 29D, the Court of Appeal may transfer two specific types of appeal to itself: (a) an appeal against any decision of the General Division that has been made to the Appellate Division and (b) when an order under section 39A of the Land Acquisition Act is in force, any appeal made to the Appellate Division under section 29(2) or 38(2) of the Land Acquisition Act.

The power to do so can be exercised inter alia on the Court of Appeal's own motion or on a reference by the Appellate Division. Section 29(3) states that making a decision under section 29D(1) to so transfer the case to itself, the Court of Appeal must have regards to matters prescribed by the rules of the Court. In addition to what the Senior Minister of State has shared with us earlier, I would like to ask him whether he is able to share a little bit more as to what would be these matters of considerations which the Ministry has in mind.

Finally, Mr Speaker, Sir, it appears that with the new Appellate Division, an increased in the number of Judges in the High Court is inevitable. I would like to ask the Senior Minister of State: one, what is the projected number of judges that would sit at the Appellate Division of the High Court at the inception of the division after the passing of this Bill and two, whether the Senior Minister of State has any estimation or projection as to the number of additional judges which the High Court is expected to have in the next five years after setting up the Appellate Division.

Mr Speaker, Sir, I support the Bill and the proposed legislative changes for the restructuring of the Supreme Court.

1.13 pm

Ms Anthea Ong (Nominated Member): Mr Speaker, I stand in support of this Bill which introduces an Appellate Division of the High Court with the intent of refining our judicial system to enhance the efficiency and flexibility of court processes.

Sir, since we are examining changes to the judicial system with this Bill, I would like to take this opportunity to ask the Minister and this House to consider security of tenure to ensure full independence of our Judges. Currently, our Judicial Commissioners and older High Court Judges are contractually renewed and do not have tenure under Articles 95 clauses (2) and (5) of the Constitution, meaning that they do not have the certainty of staying on in the judiciary. They are instead appointed by the President with the concurring advice of the Prime Minister.

A 2015 study by the Bingham Centre for the Rule of Law on the appointment, tenure and removal of judges in the Commonwealth found that such renewable appointments "place the career interest of a judge in conflict with the judicial responsibility for upholding the rule of law in cases involving the government or other powerful persons who may have influence over the renewal decision. Such conflicts of interest may pose a risk to both the actual and perceived independence of the judiciary."

Moreover, the reasons for offering contractual renewal to Judges no longer exist. I believe in the late 1960s, there was a serious shortage of High Court Judges, resulting in a backlog of court cases. Parliament allowed Judges beyond the retirement age of 65 to stay on as "contract Judges", enabling the judiciary to hold on to experienced and able Judges. This Senior Judge scheme is still in place today.

The Judicial Commissioner scheme was introduced in 1979 to attract top practitioners to be judges for a period between six months and three years, then go back to their practice. The income disparity earned by judges and top practitioners was at that time very significant, so practitioners had to be financially attracted to become Judges. However, this changed in the mid-1990s when the salaries of Judges were raised by pegging them to top earners in Singapore.

In addition to security of tenure for Judicial Commissioners and Senior Judges to safeguard their judicial independence, I urge the Minister to consider extending the retirement age of Judges to 70, with optional retirement at 65 years old, instead of having renewal of appointments so that we can still retain the services of older yet experienced and able Judges. As a comparison to other jurisdictions – the tenure for judges in the US is for life, while the retirement age of judges in England and Australia is 70 years old.

These changes will enable the Judiciary to exercise the judicial power vested in them under Article 93 of our Constitution, free from encumbrances and worries that they may not be contractually renewed and therefore provide effective check and balance on the powers of the Executive and the Legislature.

Mr Speaker, it was only with this Bill and studying the underlying Constitution that I fully recognise and appreciate the significance of our Constitution as the supreme law of the land as stated in Article 4, and our duty as Parliamentarians to uphold the constitutionality of the laws that we make in this House for the Judiciary and other branches to fulfill their respective roles independently for an effective democracy.

Yet, the Parliamentary debates in this House rarely make reference to this supreme law. Our Constitution delineates functions and powers of key public institutions including the Legislature, the Executive, the Judiciary, and our Civil Service. Amendments to the Constitution have also enabled significant tweaks to our political system, including the introduction of the Group Representation Constituency (GRC) system, Nominated Members of Parliament (NMPs) system and the Elected Presidency, to operationalise.

Article 38 of our Constitution vests legislative power in the Legislature, which consists of the President and Parliament. This power enables us to shape our country's progress and our people's behaviours. How should we then exercise this power properly? What are the constitutional ideals that we must uphold? Please allow me to outline three key roles.

First, our Constitution provides for the existence of different branches of Government that serve as a check and balance on one another. While Parliament has legislative power, the Judiciary has judicial power and the Cabinet has executive functions. The Parliament vests powers of the Executive on persons other than the Cabinet, such as civil servants of high authority. The Judiciary can make judgments on the constitutionality of legislation passed by Parliament. The Judiciary can also make judgments on the failure of the Cabinet to properly exercise executive functions. The Cabinet implements regulations and policies based on the legislation enacted by Parliament. It is therefore important for us to ensure that each branch has autonomy, so that they can fulfill these functions in the best possible way. This is the basis for my recommendation for security with tenure to ensure full judicial independence.

Second, we should strive to ensure the constitutionality of legislation for future judicial references. As the supreme law, all other laws passed must not contravene the Constitution. This is called constitutional supremacy. Therefore, Article 4 provides that any law enacted by the Legislature which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. That would mean that in debating Bills, we should consider their consistency with our Constitution. Such constitutionally-informed debates can protect the electorate's rights and allow public institutions like the judiciary to fulfill their roles, in full view of the electorate. I think we will all agree that this will help us build a more informed and engaged citizenry.

Finally, Part IV of our Constitution protects fundamental liberties, including the life and liberty of a person, freedom of speech, assembly and association, freedom of religion, and equal protection, among others. Termed fundamental liberties, they are meant to be zealously safeguarded, with Parliament only being able to restrict these liberties in very limited circumstances. Hence, the legislation we enact must serve to protect these constitutionally-enshrined fundamental liberties, the courts must also be enabled to protect these liberties by being duly kept independent.

As we discuss the changes and significance of our judiciary system with this Bill and the importance of judicial independence with my earlier recommendation of tenure, I would like to seek your indulgence, Mr Speaker, to discuss a couple of policy examples where we could argue that judicial independence could guard against breaches on the constitutionality of legislation made, for example, to the equality provision.

With other Members of this House, I had raised in the debate on the CareShield Life Bill that the differentiated premiums for men and women goes against the right to equality.

Mr Speaker: Order. I think what is at stake is really discussing the amendments of the Bill, amendments that are relevant to the Bill.

Ms Anthea Ong: That is right. I am demonstrating with the policy examples why the judicial independence is important, with my recommendation —

Mr Speaker: We recognise that but I do not think we need to drag in other issues —

Ms Anthea Ong: The other example I wanted to share is the debate on section 377A also —

Mr Speaker: If I can repeat myself, that we should keep to the amendments that are being discussed today.

Ms Anthea Ong: Okay. The main point here is that I would like to say that legislative policies must also be aligned to the right to equality in our Constitution.

Let me end, Mr Speaker. Our Constitution represented the dreams of a young democracy when it was first created with our sudden Independence and now bears the marks of the growth of a determined and thriving nation. We have come this far and won much praise for our world class model of governance because of the strength of our Constitution in the separation of powers between the Judiciary, the Parliament and the Executive as well as the protection of the fundamental liberties of all Singaporeans including the right to equality.

The security of tenure for our Judges enables full judicial independence, and therefore further upholds our Constitution ideal by providing effective check and balance on the powers of the Executive and the Legislature.

We are in a stronger position than ever to keep fighting for these ideals so as to become the kind of society we want to be. Someone once said, "The strength of the Constitution lies in the determination of each citizen to defend it." And therefore, together with our colleagues in the Judiciary, our duty as Parliamentarians must be to defend the constitutionality of the laws that we make in this House for Singaporeans. For I do believe that the greatest threat to our Constitution would be our ignorance of it. Thank you, Mr Speaker.

Mr Speaker: Mr Murali Pillai.

1.22 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, before I start my speech, I would like to wish the hon Senior Minister of State Mr Edwin Tong – who persevered with his duty to deliver his speeches despite being clearly under the weather – a speedy recovery.

In my speech, I will focus on two areas: first, how the policy objective behind the creation of the new Appellate Division of the High Court is sought to be achieved; and second, the practical workings of some of the proposed new procedures set out in the Supreme Court of Judicature Act (SCJA).

Turning to the first point, I note that the reason for the proposal to create the new Court is to share the burgeoning appeals caseload between the existing Court of Appeal and the new Appellate Division of the High Court. This is expected to ensure that the Court processes remain efficient.

The hon Senior Minister of State had shared some statistics in relation to the heavy workload of the Court of Appeal in dealing with the appeals. I do not wish to dwell at length about the reasons contributing to the increase – save as to point out that we all can agree that, as lawmakers, we have been passing quite a number of Bills both in the First and Second Sessions of the 13th Parliament and it does appear that our Ministers and their respective Ministries are not letting up and this rate of law-making may be likely to be maintained, if not go higher. So, eventually, all this would have an impact on the workload of the Judiciary which applies the law in accordance with the manifested intent of Parliament.

This phenomenon is not unique to Singapore. A retired UK law lord, Lord Sumption, referred to this as "Law’s Expanding Empire".

The proposed restructuring of the Judiciary to deal with the increase in the Appellate Court’s workload comes a right time. We need to ensure that the Judiciary, in its appellate jurisdiction, is provided with adequate resources so that the clearance rate is kept high, there is no significant backlog and litigants get to receive their results of the cases within reasonable time. At the same time, the quality of the judgments must be kept consistently high and in keeping with the hard-earned reputation for Singapore as a world class, independent court with exceptionally competent and committed Judges of the highest integrity; and in that regard I noted Senior Minister of State highlighting how well our Courts are rated in published rankings across the world.

My learned friend Ms Sylvia Lim had highlighted a possibility of increased costs arising from the establishment of the Appellate Division of the High Court. But as I understand the workings of the system, for at least the overwhelming majority of the cases, it is not to have a two-tier appeal. For the overwhelming majority of cases, you only have a one-tier appeal. Only in cases where there are novel points of law of public importance will there be a second set of appeal to the Court of Appeal. And that is rightly so because the Court of Appeal is the apex Court. So, in that regard, I think the impact of cost should not be very significant.

My query is in relation to how and how many Appellate Division Judges are to be chosen. If we were to just draw just from existing cohort of High Court Judges, I am concerned that there could be a "cannibalisation" effect. The High Court workload is not insignificant. It is also expected to become heavier for the reasons I just mentioned. How can we ensure that the workload of the High Court is dealt with by an adequate number of Judges?

I acknowledge that it is also not easy to appoint Judges given that Singapore is small country with a limited pool of legal talent. It is not easy to find top talent with the right aptitude for public service to agree to be appointed as Supreme Court Judges.

I would welcome the Senior Minister of State's response on my query.

Several Members, including Ms Anthea Ong and Assoc Prof Walter Theseira, talked about increasing the retirement age of Judges. I am not sure whether that is an appropriate suggestion because there is a linkage between increasing retirement age and independence of the Judiciary. But I see this as two separate things. Based on how the Judges have been appointed, the appointment of Senior Judges as well as Judicial Commissioners are done on an ad hoc basis to clear workload as and when workload increases. And I think that flexibility must still be retained. But I think we should be careful about drawing an analogy between these Judges who are there for specific reasons to clear workload and then an inference that somehow the independence of the Judiciary is affected by their appointments.

I now turn to the other proposed amendments in the Bills. I beg the indulgence of hon Members because these are rather technical areas.

First, the configuration of the High Court hearing a civil case in the proposed General Division. The proposed section 10(1) of the SCJA stipulates that proceedings in the General Division of the High Court dealing with civil cases should be before a single Judge. This is the same requirement that exists now. I note, however, section 18G of the SCJA allows the SICC, which is another division of the High Court dealing with international commercial cases, allowing for proceedings to be heard before a single or three Judges. The reason for having three Judges, amongst others, is a recognition of the complexity of the cases that SICC would have to deal with.

With the increasing complexity of cases and voluminous documents involved in local civil cases, I would respectfully suggest that, as a matter of policy, there should be no distinction drawn between the General Division and the SICC. It may be good to give the Court the discretion to decide which number is more appropriate having regard to all the facts and circumstances. I would be grateful for the Senior Minister of State’s views on this matter.

Second, I note that there is a list of situations set out in the proposed Sixth Schedule where appeals are brought directly to the Court of Appeal, instead of the Appellate Division. I reviewed the list and I note that under paragraph 1(i) of the Sixth Schedule, there is a raft of legislation, from the Administration of Justice (Protection) Act to the Competition Act to Maintenance of Parents Act dealing with a diverse range of topics in respect of which it is stipulated that appeals are to be brought to the Court of Appeal. May I ask what is the policy ground for shortlisting these pieces of legislation?

I note from sub-paragraph (j), it is stated that there would be a direct appeal to the Court of Appeal if it is so provided under a specific piece of legislation. May I also please ask what would be the policy governing the provision for such a direct appeal to the CA in future pieces of legislation that this House may pass?

Third, further arguments. I note with the pleasure that the hon Senior Minister of State has clarified that he will be moving an amendment in the Committee stage of this Bill in respect of the proposed section 29B(2) of the SCJA which would clarify that the operative word there should be "time" and not "date". This would prevent controversy from arising once this Bill is passed and put into effect.

Next, I note that the proposed section 29D of the SCJA provides that the Court of Appeal may transfer a right of appeal against an order made under a provision in the Land Acquisition Act. May I please ask what is the rationale for this reservation of right instead of providing for a direct appeal to the Court of Appeal?

In this regard, I note that section 29(2) of the Land Acquisition Act provides for an appeal to the Court of Appeal from the decision of the Board on questions of law. What is the special characteristic of this provision, section 39(A) in the Land Acquisition Act which for some reason, I am unable to find in the statute book?

Under the proposed section 29E of the SCJA, the Court of Appeal may transfer an appeal made under the Land Acquisition Act to the Appellate Division.

Given that the legislative intent under the Land Acquisition Act is for the Court of Appeal to hear these cases, may I know what are the circumstances in which such remission is proposed so that it is made in a way that coheres with parliamentary intent?

I believe the learned Senior Minister of State mentioned something about the situation where all the substantive issues are dealt with, dealing only with ancillary matters. Perhaps that could be a situation that is being contemplated.

Next, it is proposed under Schedule 7 of the SCJA that there are certain categories of cases which may be heard by a Judge or two Judges of the Appellate Division. This arrangement is different from the current Sixth Schedule which specifically states the circumstances in which the Court of Appeal will have a single Judge or when it will have two Judges. May I know why is there a necessity to reverse the policy? Also, who will decide how many Judges would sit in these circumstances? The learned Senior Minister of State mentioned about a configuration of Judges based on consent of parties. Is that what is being suggested in these provisions?

My questions will also apply to similar provisions that are proposed to be applicable to the Court of Appeal.

Next, Civil Jurisdiction of the Appellate Division is specifically provided under the proposed section 31 and 35 of the SCJA that the Appellate Division only has civil jurisdiction. May I please ask whether it is contemplated that the Appellate Division has jurisdiction to hear disciplinary cases involving professionals such as lawyers, doctors and so on which do not involve judicial review. Disciplinary cases brought in the Supreme Court are quasi-criminal in nature but generally invoke civil procedure. I welcome a clarification on this.

Next, dealing with appeals from the Appellate Division to the Court of Appeal, I note that leave is required; and it makes eminent sense for leave to be required, otherwise the whole rationale of dividing the workload would be thwarted.

I note that the test is whether or not an appeal would raise an issue or point of law of public importance. However, my concern lies with the proposed section 47(4)(a) of the SCJA because it is stated there that leave may not be granted even if the appeal would raise a point of law of public importance. Sir, I would like to ask what are the specific circumstances in which the Court of Appeal may decline exercising jurisdiction in such situations?

Notwithstanding my comments, I support the amendments Bills to the SCJA, JRA and the Constitution.

1.34 pm

Mr Speaker: Assoc Prof Walter Theseira?

Assoc Prof Walter Theseira: Mr Speaker, I am sorry, I just wish to make a clarification which is that the hon Member Mr Murali Pillai earlier suggested that I and Ms Ong had said that we had debated on the connection between fixed-term Judges and the independence of the Judiciary, but I think I want to clarify that I actually did not make those remarks. I think that there might have been some confusion there. I did not speak on fixed-term Judges in Singapore and independence. I believe Ms Ong did.

Mr Speaker: Mr Pillai.

Mr Murali Pillai: I thank the hon Member, Assoc Prof Walter Theseira, for clarifying. I apologise to him for remembering the speech wrongly. I think it was Ms Anthea Ong who made the point.

Mr Speaker: Minister of State.

1.35 pm

Mr Edwin Tong Chun Fai: Sir, I thank the Members for speaking. I am also grateful to Mr Pillai for his well wishes and also for his wide-ranging speech where he answered not just some other Members' questions, but also some of his own.

Let me address the other questions now.

Ms Lim asked whether the cost of appeal to the Court of Appeal would escalate given the introduction of the Appellate Division as a middle tier. I go back to my earlier point that the Appellate Division is not to be seen as a middle tier. In general, it will not add a further level of appeal in the vast majority of cases and it is not a level of appeal that has to be crossed before one gets to the Court of Appeal.

The appeals from the General Division will be allocated in the first instance. So, you heard me say earlier that there will be two tracks, one of which goes direct to the Court of Appeal and the rest goes to the Appellate Division.

Any further appeal from the Appellate Division will require leave. Mr Pillai, I think, answered that question, and leave will only be granted in very limited situations. In most cases, parties will not go through an additional tier of appeal after a decision from the General Division. As is the case today, there will generally be only one tier of appeal, therefore.

The amendments before the House today also contain initiatives to lower costs of litigation for parties, to address Ms Lim's point directly. So, either by way of paper hearing, which will be quicker and also less expensive in the context of some cases. But all that is of course subject to the overriding discretion of the Court's assessment that it is appropriate for the administration of justice in a case for parties to proceed on a paper hearing.

Mr Dennis Tan and Mr Murali Pillai asked about the expected increase in the number of Judges. We expect at least three Judges from the current High Court to be appointed to the Appellate Division, and additional appointments to the General Division may be made as may be necessary once the Appellate Division has been set up.

Mr Louis Ng asked how the restructuring of the Supreme Court would affect the doctrine of judicial precedent, or stare decisis. He also asked how persuasive a decision of the Appellate Division will be compared to that of the Court of Appeal.

It is quite clear, and the order of precedence as set out in the Bill, is as follows, from the highest to the lowest: first, decisions of the Court of Appeal, which remains the apex court of the land; next, the Appellate Division of the High Court; and then the decisions of the General Division of the High Court.

In line with the usual principles of stare decisis, decisions of the higher Court are binding on the lower Court. Decisions of the Court of Appeal will therefore have precedence over decisions of the Appellate Division. This is regardless of whether the decision in question has been issued before or after the establishment of the Appellate Division.

The decision of the Appellate Division will be binding on the General Division and the lower Courts. And the existing High Court decisions will not bind the new Appellate Division. They will have instead the same weight as a decision from the General Division after it is set up.

Mr Tan and Mr Pillai asked about the categories of appeals in the Sixth Schedule – how they are chosen, what was the thought process going into it. Mr Pillai also asked about the Land Acquisition Act. These will also be ordinarily allocated to the Court of Appeal.

In my opening speech, I outlined the key considerations for allocating the categories of cases to the Court of Appeal directly. Just to quickly recap, these include cases which will have a likely substantial consequence for the individual or society, have involved significant public interest questions which will benefit from the guidance of the Court of Appeal, possibly also novel questions of law, complex cases and so on.

I think it was Mr Dennis Tan, I believe, who raised the questions specifically on section 18(5) of the Maintenance of Parents Act. If Mr Tan looks at that section, it specifically provides for an appeal on the basis of public interest. I think one can understand why an issue which the Maintenance of Parents Act covers might be something that one channels directly to the Court of Appeal.

Importantly, however, for Members to note, the ordinary allocation of appeals, whilst there is a default, is not rigid. Even if a case is ordinarily allocated to the Appellate Division, there is flexibility for it to be transferred to the Court of Appeal, if it requires a decision that the apex court of the land can usefully provide.

The categories allocated to the Court of Appeal are also not cast in stone. For example, as I said in my opening speech, should there be novel questions that we put into the categories today, they may be resolved or settled with the passage of time. Those cases can eventually come off that list if it can be dealt with by the Appellate Division. If an initial area of law is more established or there is a new area of law, that can also be added to the categories.

Next, let me touch the transfer powers of the Court of Appeal. Mr Louis Ng, Mr Dennis Tan and Mr Murali Pillai touched on them and raised some questions. As a starting point, the allocation of matters in the two tracks that I mentioned will apply generally, as a starting position. However, it is useful beyond the default allocation to allow the Court of Appeal themselves looking at the specific case and understanding the issues that are raised beyond just the label that is put on it, a discretion to transfer to itself or to the Appellate Division depending on its assessment of complexity, novelty and so on. The basis on which it seeks to do so – novelty, complexity, cases of general public importance and so on – would be amongst the factors that will guide the exercise of discretion in any such transfer exercise.

At the same time, the powers of the Court of Appeal in doing so are not unfettered, and Members will note clauses 29D(3), 29E(3) and 47(3) of the amended SCJA which expressly require that the Court of Appeal have regard to the matters prescribed in the Rues of Court when exercising these powers. As I had mentioned, the relevant matters will be prescribed in the Rules of Court.

Mr Pillai asked specifically about the Land Acquisition Act. The transfer power in clause 12 which will introduce sections 29B and 29E of the SCJA refer to the Land Acquisition Act so that appeals under sections 29(2) and 38(2) of the Land Acquisition Act can be transferred in a manner similar to all the civil appeals.

The land acquisition appeals currently lie from the Land Appeals Board. They do not lie from the General Division up to either Appellate Division or the Court of Appeal, but lie from the Appeals Board. So for that reason, they are set out separately from the Sixth Schedule which applies only to civil appeals from the General Division.

Finally, clause 27(f) of the SCJA introduces a new section 39A of the Land Acquisition Act and that permits the Minister to allocate land acquisition appeals in the same way as all the other categories of appeals in the Sixth Schedule. So, I think Mr Pillai also asked what are the principles of that remission, and I think that is one of the questions that you answered yourself. So, thank you very much.

On a related note, Mr Louis Ng, I think, asked about the transfer to the Appellate Division, should the case raise a matter of settled law. Mr Ng's point seems to be that where a case might appear settled or uncontroversial, the law may subsequently nonetheless be overturned. So, I think the question is how then do we determine that upfront.

The reality is that in most cases, it will be clear if there are controversial points of law that ought to be decided by the Court of Appeal, and that would be flagged earlier rather than later. For example, when settled law is challenged by a party on appeal, the party first has to give notice of its position, file its case, outline its arguments, and the Court would be able to appreciate those arguments upfront.

Further, in deciding whether to transfer an appeal, the Court of Appeal, of course, will also have regard to all the relevant circumstances, including the party's case which I have set out earlier, raised earlier on, and of course, understand the nature of the case. As Members who practise in the Courts know, the Courts very actively conduct pre-trial conferences to understand the nature of the parties’ dispute, understand the ambit of the disagreement, and to understand whether this would involve novel questions of law, or whether the parties are seeking a question to be overturned on a settled point of law.

Nonetheless, despite all that, where the appeal has been transferred to the Appellate Division and in the course of that hearing, an unanticipated issue of law of public importance, novelty, complexity arises, the matter can still go on appeal to the Court of Appeal with leave.

Mr Ng and Mr Pillai raised questions about the power of the Court of Appeal to decline to grant leave for a further appeal from the Appellate Division to the Court of Appeal, even if a point of law of public importance is raised.

Let me explain that. Under our proposed amendments, it is a requirement that the appeal ought to raise a point of law of public importance for leave to be considered. However, as Members would appreciate, this alone would not be sufficient as a criterion to grant leave of appeal.

Other matters in the interest of the administration of justice were also considered. That in fact is the position today.

Whether or not there should be further appeal should take into account the fact that the parties had had already a chance to raise their arguments, and nothing new is coming through in the application for leave to appeal. They raised the arguments before the Appellate Division, and the Appellate Division has reviewed them and decided on that point of law.

In other jurisdictions, it is not always sufficient as well just to rely on a point of law of public importance to seek and obtain permission for leave to appeal and I will just cite one example. In Australia, section 35A of Australia's Judiciary Act provides that the High Court of Australia may, when determining whether to grant special leave to appeal, "have regard to any matters that it considers relevant" and that this shall include not only whether the appeal involves a question of law of public importance, but also other factors, such as whether the interests of justice require it. So, there is a degree of flexibility in the discretion given to the judge to assess a particular case and to assess whether, on top of the question of public importance, there are other reasons in the dispensation of justice for this to be heard on appeal.

Mr Murali Pillai asked whether the Appellate Division has jurisdiction to hear professional disciplinary cases. I think judicial precedent has clarified that the Court of Appeal has no civil appellate jurisdiction in disciplinary proceedings for lawyers. Rather, this is heard by the Court of Three Judges; I think doctors as well. This remains unchanged by the introduction of the Appellate Division.

Mr Murali Pillai touched on the minimum composition of the Appellate Division and the Court of Appeal in cases that may be heard by fewer than three Judges. Specifically, he raised the difference in the arrangement of the Sixth Schedule in the existing SCJA – I think the Member said – and the corresponding Seventh Schedule of this Bill. The change in the arrangement is one of drafting – trying to neaten up the provisions – and does not effect any change to the minimum number of Judges required to hear the categories of cases set out in the existing Sixth Schedule. For example, if there is a matter that is currently only heard by a minimum of two Judges, that will remain the case in the Bill. So, the Bill does not seek to change those arrangements.

On SICC, Mr Murali Pillai asked about the difference in the number of Judges. This Bill retains the existing position, where a single Judge shall hear proceedings in the High Court, except as provided for in written law. And that one exception is the SICC, where proceedings might be heard by a single Judge or three Judges. Why? Because there are unique considerations behind the SICC. Although it is a Division of the current High Court and will be a Division as well like the General Division after the amendments, they apply to cases of international commercial considerations and they also have a panel of specialist commercial judges comprising not only Singapore Supreme Court Judges but also International Judges from a myriad of different landscapes, backgrounds and also legal systems. The strength and diversity of the panel are key advantages to attract parties to submit international disputes before the SICC, especially where the issues in dispute relate to foreign law or commercial practices in key jurisdictions overseas.

On section 29B(2), again, we will be taking up the amendment. We wish to correct the word "date" to "time" and I wish to also clarify with Mr Murali Pillai that there is no missing word in between the two sub-provisions. It is a disjunctive provision.

Let me now touch on the tenure of Judges. I think, to be very careful, in different shades, Assoc Prof Walter Theseira, Ms Sylvia Lim and Ms Anthea Ong have raised the point. Let me just try to address them as a whole.

There are a couple of questions: first, on the retirement age; second, on the tenure of Judges being extended to the age of 70; and finally – I think that is Assoc Prof Walter Theseira's point – on what is the desired tenure. I think that was the point he made and whether there should be a fixed period.

Assoc Prof Walter Theseira: Yes.

Mr Edwin Tong Chun Fai: I am glad I got it correct.

In essence, these questions – save for Assoc Prof Walter Theseira's which I will address – relate to that of the independence of our Judiciary: one of tenure and one of retirement age. So, let me address the point.

First, by borrowing from Mr Murali Pillai's own speech where he answered the point by explaining that these are effectively two different things – to look at tenure and to look at the retirement ages of the Judges are two different things when you look at the issue of independence. Let me explain why.

The Government regards a strong and trusted Judiciary as the bedrock of the rule of law. I think that really brooks no dissent. This is the point that has been made by the Minister for Law previously and it is a point that is worth reiterating in the context of the points raised in this debate. The question then is, what does success look like for our Judiciary? Because, ultimately – whatever you might say about the retirement ages, the tenure – the key question is, how successful? What role have our Judges played? What benefits do we have from a strong, trusted Judiciary, an effective trusted Judiciary which is able to attract and retain the best legal talent that we have and which operates in a climate where there are no extraneous factors, no influences interfering with the ability of the Judges to perform their jobs? The question is: have we achieved that outcome?

I think I have answered this earlier when I outlined some statistics, but I would say quite clearly so. I mentioned the World Bank's Worldwide Governance Indicators ranking Singapore in the 97th percentile worldwide in terms of rule of law. It is a number but what does that mean? One integral aspect of the rule of law is an independent Judiciary which makes decisions based on facts and law and without regard to extraneous factors. So, clearly, we can see from the rankings that judicial independence in Singapore is strong and consistently so. Trust in our Judiciary is high. In a survey conducted by my Ministry – I cited this earlier – showed that 92% of Singaporeans have trust and confidence in our legal system.

Let me look at some other legal systems, I think one that Ms Anthea Ong also raised. You look at the UK, where judges there have tenure until the age of 70. As you know, in 2016, there was this UK Attitude Survey. It was a stark reminder of how things could quickly go wrong if we are not careful. Let me just cite a few findings from the survey of UK judges. Forty-three percent of judges felt valued by the public. Seventy-four percent of judges felt that the remuneration does not adequately reflect the work they do. Sixty-one percent said opportunities for career progression was important but support for this was either non-existent or poor. Forty-seven percent of high court judges and forty-one percent of court of appeal judges – and these are judges in the UK system – said they intended to leave the Judiciary in the next five years. Two percent of judges felt valued by the government.

We could go on. And as I have said, these are survey numbers. But they, overall, give you a sense and picture and they show that there is a system that is facing a serious problem of morale, recruitment and retention. So, is this a system which has tenure till 70 a better system? That is why I go back to Mr Murali Pillai's point. It is not about what age we ask the Judges to retire at and what tenure we give the Judges, but it is in the quality of the output and the quality of the performance that we measure our success.

So, whilst I do not disagree with Members that the broader philosophical issues on security of tenure, of course, the linkage to independence and so on are important, we must never lose sight of the practical factors that have allowed us to build a first-class Judiciary that we now have. We want to always ensure that the morale of the Judiciary remains high, that it continues to attract and retain persons of the highest calibre, legal talent of the highest scruples, so that the highest levels of public trust can be maintained.

To this end, the Government ensures that remuneration for judicial appointment holders remains competitive so that we are able to attract and retain persons of high quality, ability, integrity and, certainly, of an incorruptible character. We are also firm about protecting our Judiciary from baseless attacks against their reputation, as reflected by the adoption of the Administration of Justice (Protection) Act in 2016. Trust and respect in the Judiciary has been carefully and closely built up over the generations – and I think Members will agree – it has to be zealously guarded, for it can be easily lost if we are not careful.

Let me now turn to Assoc Prof Walter Theseira's question on the differences in the age of retirement for Singaporeans in general and the tenure of office for a Supreme Court Judge.

In Singapore, when we first introduced retirement age laws in 1993, employers were not allowed to ask employees to retire before 60. In 1999, we raised the retirement age to 62 and this is where it stands now. There were many considerations, such as the need to maintain a competitive economy in the face of an ageing population, providing an opportunity for older workers to earn a regular income and allowing employers to gain from the retention of experienced workers. I think Ms Sylvia Lim herself cited some studies – healthcare is better; life expectancy is better and so on. But I would respectfully suggest that the tenure for a Supreme Court Judge engages very different considerations – a very different set of parameters and issues to consider.

Here, we are not so much concerned with economic competitiveness. Rather, the security of tenure for a Supreme Court Judge seeks to secure the independence of the Judge in judicial proceedings. So, retirement age laws in the context of the Employment Act, for instance, are not immediately comparable to the tenure of office of a Supreme Court Judge. I would not say they are irrelevant but they are not immediately comparable on a same set of paradigm factors.

In fact, if we look at other jurisdictions, we will also find that there is also little relation between the statutory retirement ages for the general population and the security of tenure for a Judge. Ms Anthea Ong – or was that Ms Sylvia Lim, I could not quite recall – cited the example of the US. In the US, the Supreme Court Justices have tenure for life. In India and Malaysia, the retirement ages for workers, generally, is 60, while judges of the apex court in those countries all have tenure until 65. So, there is no direct correlation. I venture to suggest that it is for the reasons I have outlined. In Hong Kong, judges of the apex court have tenure until 65 as well, but there is no statutory retirement age.

Next, on the desirable length of tenure and also extending tenure to Judicial Commissioners and Senior Judges. Again, we need to look at it in the context of our system – what we need to achieve in our system, what has worked for us and what we want to see happening.

First, it bears noting that there is no correlation between age per se and the Judge to make an independent and effective judicial decision. Neither is there any linkage between the age and ability to make a decision free from political or public interest. Rather, it is crucial that the system enables Judges to exercise powers free from encumbrances. So, systemically, structurally, how do we build a system that has that?

What we need to do, then, is to look at our unique circumstance and find our own balance. In this respect, we have achieved a balance between various factors: ensuring a good mix of tenured and non-tenured Judges, rejuvenating the Bench while leveraging on the wisdom and experience of the existing Bench, protecting the Judiciary from baseless allegations and assaults to their reputation.

I do not think that there is much value in pointing to other jurisdictions which provide for tenure of up to 70 years or more, 65 or beyond, the whole variety of different systems and then for us to slavishly adopt those numbers as our own. Going back to the US, for example, the US Supreme Court Judges have tenure for life. Yet, there is a constant debate about the ideological leanings of the Court, whether they have taken into account extraneous considerations and whether it has been politicised. It also appears to be the norm now for the US Supreme Court nominations to attract significant controversy, with all kinds of allegations made. Is that the way we want to go about our Judges that we put on the Bench? Again, I think our answer is very clear.

Then, we look at the other end of the spectrum. We have been talking about Supreme Court Judges and High Court Judges. Let us look at the Judicial Officers of the State Courts. Members who practise in the State Courts will know they deal with and dispose of 95% of all judicial matters in Singapore, but have no security of tenure. Yet, the 2018 Court Users Survey shows that 99% of respondents agree that the Courts independently carry out justice according to the law. And 100% of respondents agree that the Courts administer justice fairly to all in Singapore, regardless of race, language or religion. So, going back to my original point, while I do not disagree that, as a matter of principle, security of tenure is an important aspect of judicial independence, we do not have to be overly theoretical or dogmatic about it. We look at what works for our system and we attract and retain the best and finetune it in a manner that works for our system.

For Judicial Commissioners, the scheme is an integral part of our system of appointments. It helps to manage temporary surges in caseload and enables both the prospective appointee and also the Chief Justice to assess suitability for permanent appointment.

It has been explained in this House before that not all lawyers will want an immediate appointment as a Supreme Court Judge. Some would rather come in first as a Judicial Commissioner for a short-term appointment. This provides the opportunity to ascertain whether the nature of the office of a Judge suits them, before the appointment is made on a permanent basis.

This has little to do with judicial independence or security of tenure. Being part of the Supreme Court Bench is a calling that not everyone will say or can say that they are certain about from the start. The Judicial Commissioner scheme therefore allows outstanding members of the Bar who are at the peak of their profession to contribute to the dispensation of justice and the development of local jurisprudence. If they decide that this is something they are called to do and they also have the suitable judicial temperament, then there is the long-term appointment that is possible with security of tenure.

One prominent example, of course, is our current Chief Justice who was first appointed as a Judicial Commissioner from 2006 to 2007 and returned to private practice thereafter. Five years later, he returned to the Judiciary and was made Chief Justice.

This brings me to my next point, which is that an immediate and permanent appointment as a Supreme Court Judge may not also suit all possible appointees, not only for the reasons of temperament, lifestyle and calling but also because under the Legal Profession Act, an individual who has held office as a Supreme Court Judge for more than three years, cannot then apply for a practising certificate. So, it is a career change altogether. In other words, an individual who trades a successful career as a lawyer to serve as a Supreme Court Judge cannot return to his former career after serving as a Supreme Court Judge for three years or more.

If we look at the practices of other jurisdictions, the appointment of Judicial Commissioners for fixed terms to the Bench is also not new. Similar arrangements exist in many other countries, particularly the Commonwealth countries, such as the UK, where the Lord Chief Justice may after consulting the Lord Chancellor, appoint a Deputy Judge of the High Court for a specified period.

Let me now come to the Senior Judges. Senior Judges who sit in the existing High Court are scheduled to hear trials and applications, and they contribute to the disposal of cases by the High Court. Senior Judges may also deal with urgent applications such as Mareva applications and injunctions, and can also be assigned to hear appeals in the Court of Appeal.

In terms of the issue of security of tenure, the Senior Judges we are talking about here, would have already been previously selected and appointed, and had a full career as a Supreme Court Judge. They would have served a long and distinguished career and from the perspective of the issue of independence and what they are influenced by, it is difficult to see why such Judges, who are re-appointed as Senior Judges, will suddenly start making decisions based on extraneous considerations simply because they are now appointed for a fixed period.

While we want to utilise the wealth of expertise and experience that these Judges carry with them, at the same time, there is also a practical need to allow a younger generation of Judges to have the opportunity to advance. This is also a point I think very graphically recognised by Assoc Prof Theseira when he talked about ossification. So, the system we have put in place strikes that balance – works for us, strikes that balance, allows for the appropriate renewal of the Supreme Court Bench in a fair and systematic manner, but also gives us the ability to tap on Judicial Commissioners and also to retain the wide ranging experience of the Senior Judges.

The Government has made it clear before that it does not disagree with the fundamental point that security of tenure is important. But there is a need to take into account the unique circumstances that we operate in and in the manner in which we look after the success of the Judiciary. What is clear is that we are a small country, with a limited talent pool. When we find suitable talent, we have to ensure that first, this is a calling that they are certain about, and next, that there is room for advancement. Will this undermine judicial independence or will our Judges start making decisions that are affected by political bias? I believe the answer to this is eminently clear. The decisions of the Court are published and the public can judge for themselves.

Sir, I believe that brings me to the end of my responses to the questions raised. I believe I have touched on almost every question that has been surfaced.

Let me just end by saying that the establishment of the new Appellate Division is a milestone in the development of our Court system. Together with the other proposed enhancements to the Court processes, it is designed to sustain, in the long term, the high standards of excellence and access to justice that Singapore’s Courts are known for in and outside Singapore. Sir, with that, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clauses 1 to 11 inclusive ordered to stand part of the Bill.

Clause 12 –

The Chairman: Clause 12. Senior Minister of State Edwin Tong, I understand you have an amendment to propose.

Mr Edwin Tong Chun Fai: Yes, Mr Speaker, I beg to move, "That in page 7, line 26, to leave out the word 'date' and insert the word 'time'".

This applies in the context of section 29B(2) of the underlying legislation. I had addressed this point earlier in my speech. I believe this clarifies the position and makes it clear that it is the time that is applicable and not the date from which the Order is made, that the requirement for leave for further arguments to be filed runs.

The Chairman: I am of the view that the amendment, though proposed without sufficient notice, is of a purely drafting character, as explained by the Senior Minister of State Tong. I give my consent for the amendment to be moved. May I have the assent of Members for the amendment to be moved?

Hon Members indicated assent.

The amendment read as follows:

In page 7, line 26: to leave out "date" and insert "time".

Amendment agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 32 inclusive ordered to stand part of the Bill.

The Schedule ordered to stand part of the Bill.

Bill reported with amendment; read a Third time and passed.