Committee of Supply – Head B (Attorney-General's Chambers)

The Chairman: Head B. Attorney-General's Chambers. Ms Sylvia Lim.

5.45 pm

Role of Attorney-General

Ms Sylvia Lim (Aljunied): Chairman, I beg to move, "That the total sum to be allocated for Head B of the Estimates be reduced by $100".

Chairman, I filed this cut to suggest a review of the role of the Attorney-General, with a view to making our legal system even more robust.

I would like to suggest that the Government consider a change in the Constitution, to split the current dual role of the Attorney-General into two separate offices, to be held by different office-holders. Let me explain why this would improve the current arrangements.

Currently, under Article 35 of the Constitution, the Attorney-General is entrusted with two roles that require him to behave quite differently. On the one hand, under Article 35(7), he is the chief legal advisor to the Government. It is provided that the Attorney-General is to "advise the Government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him… and to discharge the functions conferred on him".

In this advisory role, the Government is his client and it is the Government who will decide what should be done. The Attorney-General may have to take certain courses of action even if they go against his own advice.

On the other hand, he has a pivotal public role in criminal matters. Article 35(8) provides that the Attorney-General is the Public Prosecutor and vested with power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.

Sir, the extent of this power, and the responsibility associated with it, cannot be over-stated. The AG has the responsibility to decide on criminal prosecutions on behalf of the state: who should be charged, who should be let off with a warning, who should have their charges reduced or compounded and so on. He is arguably more powerful than a High Court judge, as his exercise of discretion is done in private and is un-appealable.

As Public Prosecutor (PP), the Attorney-General is expected to be fiercely independent and have no hesitation to bring charges against the most powerful office-holders if the circumstances warrant. The rule of law, which we hold so dear, depends on it.

In order to further strengthen the system and shore up the independence of the Public Prosecutor, I ask the Government to consider splitting the two roles I have described, to reside in two different offices, so that the person who is Public Prosecutor is not the same person taking the Government's instructions in non-criminal matters. I believe this separation exists in other countries to enhance the independence of the PP's office.

From my understanding, the dual role of the Attorney-General was drafted into the Constitution at a time when our legal manpower was more limited. Today, we have many senior legal minds. Already within the Attorney-General's Chambers organisation, besides the Attorney-General himself, we have two Deputy Attorneys-General and a Solicitor-General. It would appear that we can assign the role of Public Prosecutor to the Attorney-General and the role of Government's legal advisor to one of the Deputy Attorneys-General or to the Solicitor-General.

Sir, in addition, to further buttress the standing of the Attorney-General, he should enjoy some security of tenure. The Constitution originally envisaged the Attorney-General to hold office until 60 years of age, and was later amended to allow Attorney-Generals to hold office for a specific period. In the recent past, some Attorney-Generals had held office for short terms of two to three years. I suggest that the Government introduce a minimum term of appointment to enable the Attorney-General to enjoy some security.

As to what period is suitable, we could take reference from the period currently set for the appointment for the Auditor-General, which under the Constitution is a six-year term.

Question proposed.

The Chairman: Senior Minister of State Mr Edwin Tong.

The Senior Minister of State for Law (Mr Edwin Tong Chun Fai): Mr Chairman, Ms Lim spoke about de-coupling the dual roles of the Attorney-General as Public Prosecutor and also chief legal advisor to the Government, and granting security of tenure to this office, to strengthen the system and also made reference to systems in other countries. Let me respond to the points raised.

I understand the thrust of Ms Lim's speech. The Government fully agrees that public confidence is important. And because of the way we have built up our institutions, public confidence in our institutions is high. Our institutions work well and have worked well. Survey statistics referred to during the 2016 Committee of Supply debates showed that public confidence in the legal system is indeed high. Let me cite some numbers. Ninety-two percent said they had trust and confidence in Singapore's legal system, and that the system is fair and efficient. Ninety-six percent agreed that Singapore is governed by the rule of law.

The same survey also revealed that 90% said they had trust and confidence in the Attorney-General's Chambers.

The public's confidence in the Attorney-General's Chambers did not develop by chance. It was the result of prudent legal safeguards, as well as the integrity of those in the system. Let me elaborate.

First, the Constitution itself has robust safeguards to protect the Attorney-General's independent exercise of prosecutorial discretion. It provides that the Attorney-General has the discretion "to institute, conduct or discontinue any proceedings for any offence".

Second, on top of that, we have a dual-key system for the appointment of the Attorney-General. What does this mean? Both the President and the Prime Minister must agree on the appointment. The Presidential veto contributes to a more robust system compared to other major common law jurisdictions which I believe is a reference point that Ms Lim has taken, such as England and Wales, Australia and New Zealand, where the officers in charge of prosecutions in those countries are appointed solely by the government Minister.

In Singapore, the Attorney-General does not hold a political office. This further reinforces the independence of the Attorney-General, and is also unlike other jurisdictions, such as England and Wales, Canada, Australia and New Zealand where the Attorney-General holds a political office and is therefore subject to political pressures. Separation of the role of the Attorney-General from that of the Public Prosecutor in those jurisdictions is therefore necessary to ensure the independent exercise of prosecutorial discretion. The Constitutional safeguards in Singapore ensure that the Attorney-General is protected from such pressures and allows him to discharge both his roles as Public Prosecutor as well as the Government's legal advisor without fear or favour.

Ms Lim suggested that the Public Prosecutor should have security of tenure. Again, if you look at and compare our system with that of mature common law jurisdictions, the officers in charge of prosecutions in England and Wales, Australia, New Zealand and Hong Kong do not have security of tenure and typically serve pre-determined renewable terms.

6.00 pm

What is more important is that it is very difficult to remove the Attorney-General in Singapore. The President, the Prime Minister and a tribunal of three Judges, which must include the Chief Justice, must all agree that the Attorney-General is unable to discharge his functions, or that there has been misbehaviour. In some of the other mentioned jurisdictions, the requirements for removal are considerably less stringent.

In total, these safeguards are important. But, I am sure Ms Lim knows, that alone cannot itself maintain public trust. The Attorney-General's actions are also important. Attorney-General Lucien Wong recently said that the Attorney-General's independence is "enshrined in the Constitution and is an established rule of practice within Chambers". The Attorney-General has also not shied away from prosecuting individuals who may be well-connected or indeed hold high positions. Ms Lim has, in her speech said, that a Prosecutor must have no hesitation. Some examples of more recent and those further back prosecutions include actions against a Minister of State; against sitting and former Members of Parliament; against at that time, the SCDF Commissioner; the then-NKF CEO and also the then-Deputy Chief Executive of PUB.

The public trust the Attorney-General and the broader legal system because we appoint individuals of the highest calibre and integrity and they exercise their discretions independently. The high levels of public trust in our legal system and the Attorney-General's Chambers, speak for themselves.

I would like to take this opportunity to reaffirm the Government's fundamental commitment to and respect for, the Attorney-General's independent exercise of prosecutorial discretion, which is essential to a society governed by the rule of law.

The Chairman: Ms Lim.

Ms Sylvia Lim: Thank you, Sir. I have some clarifications for Senior Minister of State. First, may I just get his confirmation that he actually acknowledges that this principle of separation between the Chief Prosecutor and the Chief Government legal advisor is taken in other jurisdictions. That is one.

Secondly, I think he would probably be aware that a former Attorney-General had actually written an article about this issue in The Straits Times in 2017. And he actually suggested also that the separation be introduced into the system as a matter of design, not because currently there are major issues now, but to pre-empt future problems, and citing that in other countries' pressure on prosecutors, perhaps by an unscrupulous Executive is not unknown. So, from a system design perspective, it is something that is good to consider.

The third point is that he mentioned that it is quite difficult to remove the Attorney-General and cited the Constitutional provisions. But at the same time as well, if the Attorney-General is appointed for a short term, then his contract will just lapse and in that sense, he will be removed after a short period of time or his service will be terminated. So, is it not worth considering actually, to introduce a certain continuity in the term of the Attorney-General, so that he can see through certain matters that are of concern of public interest. At the same time, the former Attorney-General who wrote the article highlighted a frequent change of Attorney-General does affect the morale of the Deputy Public Prosecutors (DPPs). So, I would like the Senior Minister of State's comment on that.

Mr Edwin Tong Chun Fai: I will address all three questions at the same time because I think they fundamentally centre on the question of trust in the independence of the Attorney-General and, of course, the functions of that office.

What other jurisdictions do, they do it for the reasons best known to themselves, or perhaps a design that is in response to the system that they themselves have. I highlighted the differences that I think Ms Lim is very familiar with in other jurisdictions.

Some of the Attorneys-General hold political office, others have affiliations; yet others as Ms Lim will be aware from my speech also do not have security of tenure and go by a fixed term. So, it is different processes for different systems; and each country, each jurisdiction must decide what works best.

In our context, we look at it from the perspective of what the broad institutional protections are – in terms of the appointment, in terms of the removal, in terms of the fact that the Attorney-General has no political affiliation and holds no political office. But, more than that, we also look at the individual, persons of integrity, utmost integrity, discharging those functions. And finally also, the proof of the pudding is really in the eating – in looking at the conduct, looking at the fact that, with no fear and no favour, there have been high-profile prosecutions including those that I have outlined which demonstrates that our system is working. And that I think is manifestly clear from the surveys that have been done.

So, yes, we constantly review this system that we have. We understand that other countries look at the separation. We look at our system and we constantly evaluate it and we will make adjustments as appropriate. But, at the end of the day, what drives the decisions that we make ultimately, has to be the output, the performance and the way in which the public retains and reposes confidence in the functions of the Attorney-General.

The Chairman: Ms Lim, would you like to withdraw your amendment?

Ms Sylvia Lim: Chairman, I do believe that this matter is worthy of further consideration, but at this juncture, in the interest of time, I would like to thank the Attorney-General's Chambers for its work and I beg leave to withdraw the cut.

Amendment, by leave, withdrawn.

The sum of $197,113,500 for Head B ordered to stand part of the Main Estimates.

The sum of $5,764,000 for Head B ordered to stand part of the Development Estimates.