Feasibility of Setting Up a Judicial Service Commission for Judicial Officers

ADJOURNMENT MOTION

The Leader of the House (Ms Indranee Rajah): Mdm Deputy Speaker, I beg to move, "That Parliament do now adjourn."

Question proposed.

Mdm Deputy Speaker: Mr Murali Pillai.

Feasibility of Setting Up a Judicial Service Commission for Judicial Officers

8.51 pm

Mr Murali Pillai (Bukit Batok): Mdm Deputy Speaker, I would like to give notice that the hon Members of Parliament Christopher de Souza and Lim Biow Chuan are also desirous of speaking on the Motion standing in my name under Standing Order 2(8)(b). I, therefore, propose to share the 20 minutes of speaking time allotted to me, with them. I would like to express my gratitude in advance to them for joining me to speak on this Motion. May I proceed as proposed, Madam?

Mdm Deputy Speaker: Yes, please do.

Mr Murali Pillai: Obliged. On 4 November 2020, I asked the hon Minister for Law and Home Affairs in this House about the merits of having a separate Judicial Service Commission (JSC) principally to deepen the competence of judicial officers. I am not alone in asking for the set-up of the JSC. Hon Members of Parliament from both sides of the House have made similar calls for a variety of reasons.

The hon Minister's reply to my question was that in the current circumstances, the integrated Legal Service Commission (LSC) model that we have for the Legal Service is probably best for the time being.

I agree with the hon Minister that the integrated model served Singapore well. The LSC contributed indelibly to the upholding of the rule of law in Singapore. It ensured that our Judiciary is both independent and impartial.

Our Judiciary is held in great esteem not just within Singapore but also internationally. In a MinLaw Public Perception Survey conducted in 2020, 90% of respondents indicated that they had trust and confidence in Singapore's legal system. Singapore was also ranked overall first out of 180 countries in the Heritage Foundation Index of Economic Freedom 2021 and was given a score of 90.8 for judicial effectiveness.

The upholding of the rule of law in Singapore has directly resulted in Singapore's growth as an inclusive nation with good outcomes in education, opportunities for all, irrespective of race, religion or gender, care for the less fortunate, cohesion amongst people and low crime rates.

What is good for today, however, may not be adequate for tomorrow. It is our work to improve our institutions over the years that has made us what we are.

The point we should consider today is whether the integrated LSC model, which has served us well, needs to be adjusted with regard to the evolving responsibilities that will be placed on the Judiciary in the future. The main arguments I make in support of this Motion are as follows.

Considering the increasing factual and legal complexities of the cases presented in Court, quickening the pace of specialisation amongst our Judges will better equip them with the skills, tools, especially technological tools, and experience to discharge their solemn duties consistently and at the highest standards.

A separate JSC with its own secretariat set up under the Constitution and vested with the power of appointment, control and human resource development of the judicial officers in the Singapore Legal Service will be in a better position to nurture a specialist corps of judicial officers.

Additionally, with the autonomous power to recruit, the JSC can exercise more flexibility and use a wider range of talents. For example, someone with experience in programming can be trained and taught law. Then, he or she can navigate the technical facts of a case much better than a legally trained Judge. That is a deeper, more specialised approach to intentionally growing our judicial service.

Nonetheless, I must acknowledge that I make these points drawing from merely my own knowledge and experience as a legislator and a private legal practitioner. Hence, I am calling on the Government to study the feasibility of my proposal rather than presenting a specific case for it.

Let me now say a few words on the significance of my proposal on fellow Singaporeans.

Specialisation amongst Judges should not mean higher costs for litigants. Rather, what I have in mind is the opposite. With greater specialisation, our Judges will be more efficient and productive and in a position to further rein in legal costs.

The end state that I envision is a specialist Judiciary that ensures that its decisions remain consistently of the highest quality and delivered with due despatch. Furthermore, it should allow litigants using its processes to be satisfied that they have been provided with good access to justice, their cases have been heard and they have been treated fairly and impartially.

Lastly, it is responsive and keeps abreast of fast-paced developments, particularly technological developments, that are making cases more complex. One good example of a technological development arose last year when the Court of Appeal had to deal with novel legal issues arising in the world of cryptocurrency algorithmic trading.

A specialist Judiciary that can achieve all these will strengthen our public's trust, confidence and respect in our legal system.

I now make the case for further specialisation of the Judiciary. I say "further specialisation" because the Judiciary has already developed specialist routes for some years now in response to the increasing complexity of cases. Let me cite some examples.

The Family Justice Courts were set up out of the recognition that family justice is a specialist discipline that requires specific focus and jurisprudential development. There have been dedicated specialist commercial lists in the General Division of the High Court in areas, such as building and construction, finance, securities, insolvency and trusts, and arbitration.

As a private practitioner in active legal practice for some time now, it is clear to me that the Judiciary continues to hear and decide on more complex cases over the years. It is not easy to measure complexity of the cases in our Courts objectively but there are several proxies that can provide rough and ready guides.

In an article titled "The Development of Singapore Law: A Bicentennial Retrospective" by the hon Andrew Phang JA, Prof Goh Yihan SC and Prof Jerrold Soh, it is stated that the average reported judgment comprised 4,763 words in 2002. Now, the average count hovers around 11,000 words. This statistic is for judgments of both the State Court and the Supreme Court.

Between 2017 and 2020, based on my manual count, the Court of Appeal, the highest Court of our land, has sat as a special five-judge bench about 45 times to deal with novel and complex issues of law.

There is also an upward trend of Singapore cases being cited and commented on overseas, including in the UK and Australian courts. This is an indication that our Courts are increasingly having to grapple with frontier legal issues. I will give three examples.

First, the UK Supreme Court had occasion to cite two decisions of the Singapore Court of Appeal in its 2015 judgment on requirements to imply a term in contract law. Next, the New South Wales Supreme Court in 2016 quoted observations of the Singapore High Court on the role of liquidators in legal proceedings. Finally, the 2017 Court of Appeal's reported approach to the issue of damages arising from a birth of a healthy child through in-vitro fertilisation (IVF) as a result of a medical professional negligently fertilising an ovum using sperm from a wrong source, received much attention internationally.

So, our Judges carry out a key element of providing order in society, not just in Singapore but, at times, in other Common Law countries.

Our Legal Service has grown significantly, too, over the years. In 1965, our year of Independence, we had 45 officers. Today, this has increased 18 times to over 800 officers, of which, 30% are judicial officers.

In 2014, in recognition of the need to specialise, our Prime Minister announced the restructuring of the Legal Service which involved the introduction of two separate career tracks, judicial and legal, for Legal Service Officers, LSOs. However, the specialisation tracks are geared towards the middle ranks of the Legal Service. Junior and senior officers still operate under a fully integrated model, in respect of their career tracks.

Respectfully, given the requirements of the future that I have alluded to, I would think it is good to reconsider the central management of junior and senior officers deployed for judicial duties by the LSC.

It seems to me there is a need to plan for longer runways for the junior officers within specific career tracks leading to deeper specialisation. Even at the top, the senior LSOs in the Judiciary must devote time and effort to continually upskill themselves so as to keep up with the requirements of their jobs.

The establishment of a JSC, with its own secretariat, can help. At this point in our country's development, there is also sufficient ballast in terms of the number of LSOs currently serving and expected to serve as judicial officers.

Madam, the proposal to split the LSC into a JSC and LSC is, admittedly, a complex issue. I would not pretend that I have dealt with all the issues in my short speech. Instead, all I seek to do is to make a case for this Government to agree to conduct a feasibility study on my proposal and revert to this House in due course.

Mdm Deputy Speaker: Mr Christopher de Souza.

9.02 pm

Mr Christopher de Souza (Holland-Bukit Timah): Madam, I stand in support of the Adjournment Motion filed by the hon Mr Murali Pillai. The LSC has evolved over the years to adapt to the changing operating environment. The most significant change in recent times was in 2014 when there was a significant shift towards increasing specialisation through the introduction of Specialist Career Tracks.

This Motion calls on the Government to rethink our talent management frameworks and development of LSOs. As a practitioner, I have myself seen how much the legal profession as a whole has changed.

LSOs occupy a special identity. They are part of the Public Service and also form a substantial proportion of the legal profession in Singapore. It is, therefore, important that they keep pace with the changes that are disrupting the profession. For example, digital trends and technology have expanded the frontiers of law.

One example of a trend needing to be checked is the proliferation of online services on the dark web which have facilitated the rise of complex cross-border cyber crime. This calls for deeper expertise, amongst not just our law enforcement agencies, but also our prosecutors.

Another example is the increasing use of artificial intelligence in various fields from financial services to legal services and even healthcare. This has given rise to many novel questions of law.

One need only to look at the increase in the number of law reform reports that have been published in various jurisdictions in this area. Our very own Singapore Academy of Law has published three reports in the past year in this area alone.

I admit that there is a delicate balance to be drawn between specialisation and breadth of experience. As some have said, the world today needs not generalists per se, but deep generalists. These are lateral thinkers who can effectively combine different strands of thought and lessons from different contexts to produce innovative results. What we need is for both legal and judicial officers to pick up depth and breadth in a select number of specific disciplines or specialised areas in a way that allows them to synthesise skills and knowledge and, in so doing, helps the Government innovate in a fast-changing world.

Given the growth in the size of the Legal Service and the growth in the complexity of the work in both the legal and the judicial branches, there are now adequate sub-specialisations within each branch that facilitate the development of such deep generalists.

Having two Services allows for functional separation. Each service can develop its own policies on performance management, recruitment and training. I wish to share my humble view that if a Judicial Service Commission were to be established, movement of officers between the Judiciary, the Attorney-General's Chambers (AGC) and the various Ministries should continue to be allowed in some form. This is because I am of the firm belief that breadth of exposure is key to the proper development and training of a Legal Service Officer. This belief is born out of my own personal experiences as an LSO in the early days of my career. I started my career as a Judicial Officer, then was posted to the AGC and then was posted back to the Judiciary. I found this movement across branches to be very valuable in providing a more rounded and more informed view of the justice system in Singapore.

Therefore, if a JSC is to be established, such movements should continue to be allowed in some form. With that, Madam, I support this Motion.

Mdm Deputy Speaker: Mr Lim Biow Chuan.

9.07 pm

Mr Lim Biow Chuan (Mountbatten): Mdm Deputy Speaker, I support the Adjournment Motion by the hon Member for Bukit Batok Single Member Constituency.

I declare my interest in speaking on the Motion as a practising lawyer as I do appear before Judges in the course of my work.

The Judiciary is one of the three branches of Government; the other two being the Legislature and the Executive.

As an independent public institution, the role of the Judiciary is to uphold the law and ensure justice is accessible to all the citizens of Singapore. In a recent survey by the Institute of Policy Studies in March this year, 82% of the respondents had either a great deal or quite a lot of trust in our Courts. As our former Chief Justice Chan Sek Keong observed, there is a high level of trust in the quality and incorruptibility of our judicial system and infrastructure, a strength that has anchored Singapore's economic development.

Our present Chief Justice also recently said: society's regard for and trust in the Courts are extremely precious.

When I first started legal practice 32 years ago, we only had the Supreme Court and the Subordinate Courts. Over the years, the laws have developed to cater to our changing society and changing circumstances. The global economy has also changed and our judicial system needs to keep up with such changes. Today, we have increased specialisation to cater to a more diverse population, changing needs and more complex cases.

For example, the Criminal Courts need to deal with brilliant and sophisticated criminal minds trying to cheat innocent victims of their monies; the Civil Courts have to deal with some of the very complicating civil disputes; intellectual property litigation often involves cross-border disputes and disputes involving sophisticated financial instruments. We also have the Family Justice Courts (FJC); the Community Dispute Resolution Tribunal (CDRT); the Employment Claims Tribunal; and, lastly, the Protection from Harassment Court, all of which require specialised skills in the dispensation of justice to different categories of litigants.

Judicial officers play an important role in the administration of justice, all the more so for State Court Judicial Officers. These officers need more specialised skills and more specialised knowledge to better understand the complex facts and how to apply the law to these facts. They need to have good judicial temperament and show empathy in dealing with members of the public and firmness in dealing with criminals.

As a family law practitioner, I wish to share that Judges need to deal sensitively with spouses who are highly emotional and they need to deal sensitively with children as well.

Mdm Deputy Speaker, the Legal Service Commission (LSC) was set up under Article 111 of the Singapore Constitution. The LSC has played a very important role in staffing the Judiciary, the AGC and the various agencies like the Insolvency Office, Public Trustee's Office, Legal Aid Bureau and the legal departments of the other Government agencies. But having too frequent rotation of Legal Officers under the LSC may not allow them to develop greater depth of skills and expertise required in today's circumstances.

Hence, I submit that it is timely that we consider the need for a dedicated JSC to take over the human resource development functions of officers in the Judiciary. This will allow the proposed JSC to actively source for suitable judicial officers to serve in the various specialised Courts and to meet the challenges of the future. To ensure that we maintain a high level of trust in the judicial system, we need to ensure that our judicial officers are competent and able to dispense justice fairly, expeditiously and to answer the judicial needs for our future.

I am mindful that this proposal requires a Constitutional amendment. If the Government is minded to move ahead with this proposed review, I would suggest that the Government set up a review committee to ensure that the composition of the new JSC and LSC remains robust and responsive to the new challenges ahead, especially in terms of HR and the personnel management framework for the legal officers. I support the Motion.

Mdm Deputy Speaker: Minister K Shanmugam.

9.11 pm

The Minister for Law (Mr K Shanmugam): Thank you, Mdm Deputy Speaker. I thank Mr Murali Pillai for filing this Motion.

Let me first set out the Government’s approach towards the Legal Service. The key question is and has always been: how do we structure and design the Legal Service to continually build up our legal system and institutions? This has never been and cannot be a one-off, static exercise; it is a continuous exercise of continuously tending to systematic institution building; to build and improve; to ensure that the structure we have works best for us.

Over the years, we have systematically built up the Legal Service. The enduring challenge has been our very small pool of talent, limited by our small size.

If we go back to the time of Independence, we had only 45 Legal Service Officers (LSOs) and a total of 130 members at the Bar. From those early days, we have always considered the Legal Service as a critical institution in establishing the rule of law in Singapore. It is part of the DNA of Singapore's governance philosophy.

The Service provided a dedicated corps of officers who, amongst other things, built a strong, trusted Judiciary, prosecuted without fear or favour; supported effective, active and nimble policymaking; drafted all the laws that are passed by Parliament, and defended and secured Singapore’s interests internationally.

As Singapore grew and our legal system gained strength, it had to grow and modernise while maintaining high standards of excellence. It had to attract its own share of talent and develop and deploy them well.

As former Chief Justice and President of the LSC, the late Mr Yong Pung How, said, the Legal Service should be "positioned as a premier service in the public sector of Singapore".

At that time and, for many years after, the small number of LSOs meant that a fully integrated model, where officers were actively deployed to both the Judicial and Legal Branches, better met our needs. Even in 2006, we only had 290 LSOs. An integrated model was necessary for LSOs’ career progression and for the LSC to respond nimbly to personnel needs.

It also had the benefit of providing a breadth of postings to develop young officers and ensuring future leaders had the necessary experience, spanning both the judicial and legal fields.

In 2014, as some Members might know, we made a significant shift. Although the integrated model was retained, separate “Legal” and “Judicial” career tracks were introduced for LSOs in the middle ranks. Existing Personnel Boards were restructured into two Boards, delineated along Branch lines. The Special Personnel Boards exercise jurisdiction over human resource functions, including promotions, of LSOs in respect of Grades below LSO Grade 2. Today, LSOs below LSO Grade 2 constitute about 94% of LSOs.

The integrated model, on the whole, was retained, particularly for those at the junior and senior ends of the spectrum. This ensures that junior officers are developed in different fields of legal work, while preserving flexibility to deploy the limited number of senior officers to roles in both Branches and to meet the needs of the Service.

The proposal for a separate judicial service, separate from the Legal Service, has arisen over the years, including after 2014. Looking at it, as the Legal Service is now, I would say there are pros and cons either way. The challenge is to find the right balance for our circumstances and needs.

A specialist model accounts for the widening spread of competencies which are needed in the Legal and Judicial Branches. Officers have longer runways to acquire the skills and knowledge needed to operate in increasingly complex environments.

Each Service will have the ability to develop HR frameworks and talent development programmes, which can be targeted to their needs. On the other hand, there are major benefits to an integrated model where officers rotate between Branches. The opportunity for a varied career helps the Legal Service attract and retain talent.

For LSOs who assume senior leadership positions later on, rotations give them a better organisational perspective.

An integrated model also makes it easier to meet manpower needs, where more specialised capabilities are not required. Each time this question has arisen, including as recently as last year, as Mr Murali Pillai pointed out, in November, we decided, in our view, the time was not quite right.

Our relatively limited talent pool remains a challenge, albeit to a lesser degree. We now have over 800 LSOs. But this is objectively a small number, operating in a small legal profession. England and Wales, for example, had almost 170,000 practising solicitors and barristers in 2020, making up around 0.28% of its population.

Singapore had fewer than 6,000 legal practitioners, constituting 0.1% of our population. Yet, the UK still struggles to staff its judiciary. In 2017, the House of Lords Select Committee on the Constitution expressed serious concern about recruitment to the bench. The then-Lord Chancellor gave evidence that “not having enough people coming forward to be judges” was “one of the biggest threats” to the judiciary.

But we left the door open for further consideration. Today, the three Members have made very compelling points, which have been made previously, asking us to move further towards specialisation. They all identified the fast-paced disruptions to our legal environment and profession.

I think we share common ground, in that the benefits of specialisation are likely to continue to grow in future, with smaller trade-offs as the Legal Service continues growing. But the fundamental challenge of a limited talent pool remains.

Could a new balance be found? Possibly, provided certain desirable features of our current system, like ensuring breadth of exposure, especially for younger officers, are retained in a sensible way.

The question then is, when is it the right time to move? We could take a wait-and-see approach, maintain the current system, make small tweaks, in line with the changing environment.

We can also say, let us make the move now, to put ourselves on a better footing for the future. Because, eventually, when the numbers grow further, it makes sense to split the two services anyway.

This matter has come up with the Members who spoke, as well as other Members who have spoken with us. You have heard the points they have made, quite passionately.

Having heard their perspectives and feedback, the Government is prepared to consider a restructuring of the Legal Service, along the lines I referenced above.

We have set up a Working Group to study some of the issues that arise, should any such restructuring proceed. That will also give us a better sense. Mr Lim Biow Chuan had, in his speech, suggested this; we have moved ahead of the suggestion.

The Working Group is co-chaired by the Attorney-General and Senior Judge Chao Hick Tin. It comprises senior representatives from the Supreme Court, Attorney-General’s Chambers, Legal Service Commission Secretariat, MinLaw and Public Service Division. The Government will consider the findings of the Working Group and will make a further announcement in due course.

Question put, and agreed to.

Resolved, "That Parliament do now adjourn."

Adjourned accordingly at 9.22 pm.