Debated in Parliament on 13 Sep 2021.
Order for Second Reading read.
Mr Deputy Speaker, I beg to move, that the Bill be now read a Second time.
Sir, Singapore is internationally recognised for having a justice system that is fair, transparent and effective. We have a world-class judiciary that is known for its competence, independence and utmost integrity.
The sound justice system has brought about many tangible benefits to Singaporeans.
The value of our legal industry and jobs in the legal sector have grown in tandem with our status as a legal hub. A reputation for being an efficient dispute resolution centre and respect for the rule of law have also enhanced Singapore's attractiveness as an investment destination.
But we cannot afford to rest on our laurels. We have to constantly look ahead and improve on what we have to stay relevant and competitive. So, this Bill represents the latest of our continual efforts to improve our justice system. Let me now take Members through the key aspects of this Bill.
First, I would like to touch on the digital transformation of the Courts.
As Members will appreciate, the COVID-19 pandemic has necessitated a reduction in the level of person-to-person contact.
In April 2020, we introduced a temporary remote hearing framework under the COVID-19 (Temporary Measures) Act to maintain access to justice amidst safe distancing measures. These measures have brought convenience to court users and also increased administrative efficiency. We are now looking to enact a permanent framework that will facilitate the use of technology in Court proceedings.
Under the Bill, Courts will be generally empowered to conduct hearings remotely, using appropriate electronic means such as video-link. For example, we may have hearings where one party is physically present before the Judge while the other party appears via video-link. We may also have hearings that take place entirely online.
Regardless of the specific remote hearing arrangements, the Court's overriding duty in each case will be to ensure that proceedings are conducted fairly to all parties. There will also be statutory powers to exclude certain types of matters from being heard remotely, should this prove necessary.
Where witness testimony is concerned, the Courts have existing powers under the Evidence Act to allow witnesses to give evidence remotely in civil matters. The Bill will now amend the Evidence Act to enhance safeguards relating to remote testimony.
For example, matters which the Court must consider before it allows witnesses to give evidence remotely can be prescribed.
For criminal matters, the Courts already have existing powers under the Criminal Procedure Code to allow a witness to give evidence via video-link if the witness is in Singapore. The Bill seeks to expand this in two ways.
First, the Court may now allow an expert witness or a witness of fact to give evidence via video-link even if the witness is not in Singapore. There will, of course, be appropriate safeguards for this.
For example, in the case of a witness of fact, all parties, including the defence, must agree to the witness giving evidence from outside Singapore. Where parties do not agree, the witness will only be allowed to do so if he is unable to give evidence in Singapore and has set out in writing the evidence which he proposes to give to the Court. This provides advance notice to the other parties so that the veracity of the witness' evidence can be adequately investigated.
Second, the Court may allow an accused person to appear or give evidence via video-link from a stipulated location in Singapore, such as in Court or from a prison. The Court may also allow an accused person to appear or give evidence via live video-link from another place in Singapore if all parties agree.
In both cases, the Court must be satisfied that allowing the witness or the accused person to give evidence remotely will be in the interests of justice. The Court must also be satisfied that there are sufficient administrative and technical arrangements in place in order to facilitate the taking of evidence. For proceedings relating to contempt of court, a framework similar to that in the CPC will be introduced.
The Bill will also empower the Courts to decide any matter based on written submissions and documents tendered by the parties, without any oral hearing. This is commonly known as a "paper hearing". A paper hearing can improve efficiency in the conduct of administrative pre-trial matters and can also save time and costs when it comes to the disposal of substantive matters that are document-centric. Appeals can also be heard on paper where appropriate.
Next, let me touch on asynchronous hearings. The Bill will also make clear that parties can address the Court and make their arguments via an "asynchronous" exchange in appropriate cases.
The intention is also to adopt, what we call an “omni-channel” approach. So, lawyers and judges will be able to log in to the e-Litigation system or use the new SG-Courts application to communicate with the Court. They will be able to give information to the Court such as the number and availability of witnesses, or other pre-trial preparatory matters, whilst they are “on the go” and from remote places.
This would also reduce the need for litigants, lawyers and the Court to schedule fixed timeslots when they must all appear together at the same time and at the same location to deal with a matter. This will bring about increased convenience and improved productivity.
Overall, the amendments will empower our Courts to conduct their proceedings in a flexible manner, through the use of technology.
However, technology is but a means to an end. The foremost consideration for the Court in all cases will be to ensure that the proceedings are conducted fairly for the parties, including, and perhaps, in particular, for litigants-in-person, and that justice is done.
In considering what a suitable mode of hearing might be in each case, the Court may consider matters such as whether the case is a civil or criminal one, the complexity of the case and the kind of and the degree of fact-finding that might be required in each case. The stage of proceedings would also be an important consideration. For example, the Court may consider it appropriate to deal with administrative pre-trial matters via an asynchronous hearing. The Court may also decide that certain interlocutory issues can be dealt with on paper but may direct parties to appear in-person when it comes to other matters.
Let me add that if at any point, the Court assesses that a remote hearing would unfairly prejudice any party to the proceedings, then a remote hearing would not be ordered. Litigants-in-person who find it difficult to cope with technology can also request for an in-person hearing and make their reasons known to the judge.
Let me now move on to some other amendments under this Bill.
First, related amendments to the Administration of Justice Protection (AOJP) Act.
Part 2 of the Bill will update the AOJP Act to ensure consistency in the way physical and remote court proceedings are treated. Therefore, unauthorised recordings of court proceedings which are conducted by electronic means, or publication or transmission of such proceedings, will constitute contempt of court. This will safeguard the sanctity of remote hearings in the same manner as physical hearings. In other words, what you could otherwise not have recorded or transmitted in a physical setting in court, you cannot also do in a remote, online court proceeding.
Next, the Bill also introduces amendments to modernise and simplify court terminology. The aim is to make it easier for court users and the general public, who are not legally trained, to understand our laws and Court practices without the jargon. This is part of the overall effort to simplify legal processes and also enhance access to justice.
This Bill will modernise archaic Latin terms – terms which perhaps lawyers are most familiar with – and also technical legal jargon across more than 150 Acts.
Let me now touch on another amendment, which stems from the recommendation of the Civil Justice Commission that parties ought, where possible, to consider resolving disputes amicably. If the Court is not satisfied that parties have made efforts on this front, the Court will be empowered to order parties to attempt amicable resolution before continuing with litigation.
The learned Chief Justice, in a 2019 speech, said that there is a need to challenge the longstanding assumption that disputes are inherently confrontational and therefore, solutions must also be adversarial in nature.
The Chief Justice opined and I agree, that justice must be more than the enforcement of legal rights and obligations. Justice can also be about the maintenance of peace and the promotion of compromise, conciliation and closure between parties.
As a litigator myself for many years, I agree with the Chief Justice’s observation that maintaining relationships is sometimes even more valuable than vindicating one’s legal rights in court.
This amendment will, therefore, give force to that exhortation and will hasten a shift in mindset as to how justice may be achieved by focusing on the common interests of the litigants and reaching common ground through mutual agreement and compromise.
Let me now move on to the next bucket of amendments under the Bill.
Part 4 of the Bill amends the Attorney-General (Additional Functions) Act to provide a statutory framework for the Attorney-General (AG) to intervene in court proceedings to fulfil his duty as guardian of the public interest.
This statutory framework is based on the well-established role of the AG as the guardian of the public interest. The AG has a right and a duty to represent and safeguard the public interest.
The AG does not intervene in court proceedings with a view to advancing the interests of any litigant. Rather, the AG intervenes to represent the public interest and to place before the Court, a non-partisan perspective on public interest issues. This strengthens the integrity of proceedings before the Court, especially in cases where the Court's decision may have ramifications on the wider public good.
Let me touch on the framework briefly.
First, the AG may apply to the Court for permission to intervene in any court proceeding, if he is of the opinion that the proceedings raise a question of public interest and the intervention is necessary in the public interest. To be clear, this will not affect the AG’s right to intervene in court proceedings under any other written law.
If the Court is satisfied that the AG has adequately set out the reasons in support of the application, then the AG is made a party to the proceedings. In deciding whether to grant permission, the Court does not at that stage enquire into the merits of the AG’s application or opinion.
An existing party to the proceedings may still apply thereafter to set aside the intervention on the basis that this would be in the interests of justice. But pending the resolution of the setting aside application, the AG remains a party to the proceedings. This ensures that proceedings do not come to a standstill once an application to set aside is made.
The Court has the power to order costs for or against the AG, as it thinks fit.
Overall, the amendments in the framework that I have just outlined will provide greater clarity to the process for the AG to intervene in court proceedings and also minimise uncertainty and satellite litigation.
Next, let me touch on Part 5 of the Bill which deals with freestanding interim relief. This Part amends the Civil Law Act to enable the General Division of the High Court to grant interim relief in aid of foreign court proceedings, even if there are no substantive proceedings in Singapore. This is commonly known as a "freestanding interim relief".
Under these amendments, the General Division may grant any type of interim relief which it has the power to grant, in proceedings within its own jurisdiction. In other words, the Court is circumscribed by the power it already has within its jurisdiction to grant in those proceedings. For example, a Mareva injunction, which is quite typical, or a search order or an Anton Piller order. However, warrants for the arrest of property and provision for obtaining evidence are excluded.
The amendments are consistent with the approach in the UK and Hong Kong, and will support our efforts to promote Singapore as a leading international dispute resolution hub.
Mr Deputy Speaker, let me now touch on four other proposals quickly under the Bill, which collectively aim to harmonise and enhance the court process.
First, on summary dismissal. At present, the Court of Appeal and the Appellate Division have powers to summarily dismiss unmeritorious appeals. The Bill will introduce amendments to empower the General Division, the State Courts and the Family Courts to also summarily dismiss appeals that arise from the lower Courts, or from a decision of the Registrar. To avoid doubt, the Courts have the ability to exercise their powers of summary dismissal without hearing oral arguments.
The summary dismissal powers are narrowly scoped and are intended to manage frivolous appeals that are a drain on judicial resources.
We have also provided that the Court must consider representations made by the appellant and must also give the appellant a reasonable opportunity to show cause, before exercising its summary dismissal powers.
Sir, at this stage, I would like to highlight that my Ministry will be moving a Notice of Amendment during the Committee Stage to address two other issues relating to summary dismissal.
First, to make drafting changes and align the phrasing of the summary dismissal provision for the Family Court at clause 25 of the Bill with the equivalent provisions that apply to the General Division and to the State Courts. These provisions are intended to have the same effect.
Second, to ensure that the Court has the power to summarily dismiss certain unmeritorious criminal applications on its own motion. For example, these could be applications brought without any sufficient ground or where in a particular case where the Court has no jurisdiction. This power will apply to criminal matters, such as an application for criminal revision or a criminal motion, where the existing summary dismissal provisions in the Criminal Procedure Code do not currently apply.
Next, Agreements not to Appeal. We will align the position across all the Courts for Agreements not to Appeal by introducing a clear and simple framework that the parties may use to restrict their right of appeal.
This already exists to some extent in the State Courts Act and the Family Justice Act today.
Under these amendments, Agreements not to Appeal must be in writing and signed by or on behalf of all parties. This ensures that parties' attention is drawn to the implications of their agreement and minimises ensuing satellite litigation over whether there was in fact an agreement or not.
Third, flexibility in the size of the coram. Currently, proceedings in the General Division are usually disposed of by a single Judge. Clause 53 of the Bill introduces amendments to allow the Chief Justice to convene a coram of three or more Judges to hear any civil or criminal matter before the General Division, if he considers appropriate. This may be the case where, for example, there are novel or important questions affecting the public interest, which could benefit from the collective wisdom and insight of a larger coram.
Let me now touch on one final amendment in this Bill.
Proceedings under the Arbitration Act and International Arbitration Act. Today, proceedings under the current Arbitration and the International Arbitration Act, are heard in open court by default, unless a party applies for the matter to be heard otherwise than in open court, in camera, for instance.
We have considered feedback from various stakeholders, practitioners, that as a matter of practice, it will be common for parties involved in proceedings, involving arbitration, such as in those two Acts, to make applications, for the matter to be heard in private. Given that these applications relate to arbitrations, such applications are often allowed by the Court.
Hence, to better reflect the prevailing practice and streamline the process for parties, clauses 8 and 30 of the Bill will amend the Arbitration Act and the International Arbitration Act respectively, to provide that proceedings under these Acts are to be heard in private by default, unless the Court orders that the proceedings be heard in open court.
This is in line with the overall confidential nature of such arbitral proceedings and will result in cost and time savings for parties who now do not have to apply for such proceedings to be heard in private.
Mr Deputy Speaker, Sir, our Courts play a critical role in upholding the rule of law, through the fair administration of justice in Singapore.
This Bill is the culmination of years of effort to re-design our Court system to enable it to be future-ready and well-equipped to meet the evolving needs of society. The Bill also implements the recommendations of the Civil Justice Commission and the Civil Justice Review Committee.
I would like to end by thanking the Judiciary, members of the Bar and all stakeholders who have worked with MinLaw, on shaping the future of the legal system. Sir, I beg to move.
*Question proposed. (proc text)]
Mr Pritam Singh.
Mr Deputy Speaker, Sir, the Courts (Civil and Criminal Justice) Reform Bill proposes amendments to several statutes. The Workers' Party supports the Bill and the majority of the proposed amendments such as the ones related to supporting the digital transformation of the Judiciary, the simplification of court terminology, civil justice reforms and the empowerment of the High Court to grant interim relief in aid of foreign court proceedings.
In addition to these, however, there are proposed amendments to the Attorney-General (Additional Functions) Act.
I seek clarification on Part 4 of the proposed Bill. In MinLaw's factsheet on the technical amendments to this Bill, the objective is to, "clarify the scope of the Attorney-General's right to intervene". I have some questions on this part, as I alluded to earlier.
I will first summarise the proposed amendments in Part 4, then discuss the current position in Singapore law and finally, briefly compare Singapore's position with those and other common law countries.
First, the proposed amendments.
The Bill proposes a statutory framework for the Attorney-General, or AG, to intervene in proceedings where the AG is of the opinion that the question of public interest has arisen and the AG is of the opinion that it is necessary to place information or make submissions before the Court.
A critical element of the proposed amendments is that the Court is not to examine the merits of the AG's grounds for intervention – essentially, the public interest grounds – before granting permission. The Court is only to look at whether the grounds for intervention are adequately set out with a supporting affidavit.
So, although the proposed amendment say that the AG must apply for permission to intervene, in reality, there would be very little room for the Court to deny certain application.
If the existing parties to the proceedings disagree with the AG's intervention, the proposed amendments place the onus on those existing parties to apply to set aside the permission to intervene after it has been granted to the AG. But while the Court may consider matters such as the stage the proceedings have reached, prejudice to the parties, yet again, the Court cannot examine the merits of the AG's grounds as to the public interest the AG is protecting.
This onus placed on parties reverses the usual order of things in Court and the common law position on the AG's right to intervene where it is the party who wants something who should apply for it and justify it.
The changes proposed by this Bill are extended to all civil proceedings. The proposed clause 4A(3) allows the AG to intervene in any proceedings and I emphasise the word "any". They are not criminal proceedings and are proceedings to which the AG is not a party or representing any party.
Clause 4A(4) spells out that the AG may intervene in proceedings such as judicial reviews, any civil proceedings, family proceedings or quasi-criminal proceedings appeals and proceedings before Judges under the Legal Profession Act and the Medical Registration Act, although clause 4A(4) is careful to point out that this list does not limit subsection 3, which as I have said, allows intervention in any proceedings.
Mr Deputy Speaker, the Workers' Party has no issue with the established position that it is the AG who is the guardian of the public interest in matters where there is a public interest component to a civil dispute or criminal matter.
However, in a private law dispute, the Bill before us today would allow the AG to intervene, with the Courts having no scope to assess the merits of the AG's submission as to what public interest the AG is protecting and in the event an application is made, to set aside the order granting permission for the AG to intervene.
Can the Minister confirm that these amendments effectively represent a significant shift or a shift to the common law position on the AG's right to intervene?
There is already a process under common law for the AG to apply to intervene and for the Courts to consider the merits of the AG's application. It is a well-established procedure and there is no case law in Singapore to suggest that the AG is fettered from intervening in the public interest. Quite simply, the current intervention process under common law appears to work well.
Mr Deputy Speaker, Sir, to give this House the context of the changes, let me talk about the AG's interventions under current law and the AG's interventions in other common law jurisdictions.
In Singapore, the AG may currently intervene through the authority of legislation or via common law.
First, the AG has the right to intervene where a statutory right is given. For example, section 46 of the Charities Act entitles the AG to be heard in appeals to the High Court against decisions of the Commissioner of Charities. Other statutes that give the AG the right to intervene in specific situations are the Industrial Relations Act and the Women's Charter.
Second, the AG may also intervene at common law, as I intimated earlier. This process can be seen in action in the cases of Deepak Sharma v Law Society of Singapore and ARW v Comptroller of Income Tax, both of which are referred to in the Explanatory Statement.
In the ARW case, the High Court Judge stated in his judgment in 2017 that an intervener must establish his standing. He said that in public law matters, the standing of the AG to intervene is not usually in question but that in a civil suit based on private law rights, the AG's role may not be immediately apparent and must be properly established.
From what the Judge said, it does seem clear that, conceptually, at least, a distinction is currently made between matters of public law and private law.
In matters of private law such as in Deepak Sharma and ARW, the AG currently has to justify his application to intervene and the Court decides on the merit of the application.
The Government now seeks to replace the Court's function of deciding on the merits of an application to intervene with the proposed amendments to the Attorney-General (Additional Functions) Act that are before the House.
Let me move on to the positions in a few other common law countries.
In Australia, at common law, the AG has the right to intervene in cases affecting the prerogatives of the Crown. This right has been extended by statute to cases involving, for example, the interpretation of the Constitution and the Migration Act. For other types of cases, the Australian AG can seek leave from the court to intervene.
In New Zealand, the position is similar. The AG has the right to intervene in proceedings affecting the Crown's rights, property or profits. Otherwise, the AG must seek leave from the court to intervene in other cases.
In Canada, the AG can intervene in constitutional matters without obtaining leave but on non-constitutional matters, the AG must apply for leave.
These positions are broadly similar to Singapore's current position. Distinction is drawn between public law cases and private law cases, even those private law cases that may involve the public interest.
Mr Deputy Speaker, Sir, the Government needs to clarify the basis of the proposed amendments in part four, both because there is already a common law procedure in place and the AG's right to intervene on matters of public and even private law has not been questioned by the judiciary.
More specifically, I would like to ask the Minister the following questions.
Number one: what triggered the proposed amendments? Have there been civil cases in Singapore recently that the Government wishes it could have intervened in without having the Court examine the merits of the grounds for the Attorney-General's opinion as to the public interest under the proposed amendments?
Number two: are there possible cases which have not occurred in the past, which the Government is preparing for as a contingency? And if so, what are these possible scenarios?
More generally and as an extension of the above two questions: are there new areas of public interest that have hitherto not come up, which the Government is trying to protect?
Number four: how actively is the AG looking to be in applying these proposed amendments.
Finally, the answers to the above questions do not adequately address this: why does the current procedure, which is well accepted and widely practised in common law countries, have to be changed?
Mr Murali Pillai.
Mr Deputy Speaker, Sir, I rise in support of the general aims of the Bill which, inter alia, are to support the digital transformation of the Courts and to enable the Attorney-General to safeguard public interest in Civil Court proceedings.
On the first point, one silver lining to the COVID-19 pandemic is that it has hastened the digital transformation of the administration of justice in Singapore.
Thanks to the efforts of MinLaw, led by the hon Minister Edwin Tong, which launched the Legal Industry Technology and Innovation Roadmap in October 2020, law firms are supported in their endeavour to develop legal tech solutions, manage and mitigate risks that come with increasing digitalisation and benefit from the eCourt model, which has enhanced functions such as system integration, speech to text technology and leverages on AI.
The Courts transformed quickly to regain lost ground in terms of lost hearing days arising from the circuit breaker in April and May last year when it pivoted to remote hearings.
I would like to draw from my own experience over the past year. I have attended numerous virtual Court hearings and online dispute resolutions as counsel.
The productivity gains and cost savings arising from the usage of digital platforms are significant and acknowledged by all Court users. Hearings nowadays are also more focused in that the parties would have made full written submissions and the Courts, at all levels, would generally take the lead in asking pointed questions of counsel before making decisions.
All these translates to efficiencies in the administration of justice and provides litigants with higher value.
For these reasons, I fully support the move to enact a permanent framework that will empower the Court to conduct remote hearings or even paper hearings. This will ensure that these hard-won costs savings and productivity gains will endure beyond the pandemic.
One concern I have though is how to ensure that litigants-in-persons (LIPs) who may not be familiar with or do not have access to video conferencing technology or have concerns about expressing themselves in writing are not disadvantaged by remote or paper hearings.
The hon Chief Justice in his address in the Opening of the Legal Year this year sounded a cautionary note on the impact of technology on such persons. He said, "As we embrace and explore the greater use of technology, we must remain keenly sensitive to the needs of Court users who are less technologically equipped or inclined and ensure that technology is an enabler rather than an impediment."
In light of the Chief Justice's observations, may I please ask what measures will be put in place to help LIPs so that the interests of justice would be met?
The hon Minister did mention that the raison d'etre of Court proceedings would be to ensure fairness. Clearly, at one level, the remote hearing requirement can be waived for LIPs. But I am just wondering whether there could be avenues for LIPs to learn how to have access to remote hearings, how to use the remote hearing functions or even draft submissions for paper hearings.
Another associated question I have is with respect to the intention to allow accused persons to appear and give evidence remotely from prisons.
Again, conceptually, I have no issue. May I ask, however, how is it being proposed in such situations where they would continue to have access to their lawyers during these proceedings? How is it being proposed that conversations between the accused persons in prisons and their counsel joining in from another location in the course of remote proceedings will be kept strictly privileged and confidential?
I now move to my second point on the matter of the AG's right to intervene in Civil Court proceedings.
I note that the provisions dealing with the right is premised on the standing of the AG as a guardian of public interest under common law. This standing does not stem from the duties of the Attorney-General as set out in article 35 of the Constitution.
I am aware that the AG's standing as the guardian has been recognised by the Court of Appeal on several occasions. Notwithstanding that, it seems to me desirable that the AG' role as the guardian of public interest should be codified in our Constitution.
[Mr Speaker in the Chair]
As acknowledged by the Court of Appeal, the AG's office is a high constitutional office equal in status to the judiciary. His power over prosecution stems from a constitutional grant under article 35(8) of the Constitution. His role as the Government's legal adviser is also constitutionally entrenched.
It is also important to entrench his role as the guardian of public interest so that whatever steps he may take to safeguard public interest in civil proceedings is derived from an exercise of a power that is not only independent but constitutionally protected. In this way, his power cannot be trumped by ordinary legislation.
My other questions are on the mechanics of the two-step procedure that is being contemplated when the Attorney-General applies to intervene.
In this regard, I heard the hon Leader of the Opposition mention that the power of intervention is based on common law. Based on my understanding, that is not the case. Under common law, the AG's position as the guardian of public interest is established. But as far as the powers of intervention are concerned, they are provided for under the rules of the Court and in particular, Order 15.
Sir, I note that at the first instance, the AG here is proposed to be permitted to apply to the Court to intervene without notice to other parties. In the event the Court allows the AG's application, then at the second instance, parties may apply to set aside the intervention.
May I please ask when the AG applies at the first instance, does he have a duty of full and frank disclosure?
As the hon Minister who spent a lot of time in private practice would be aware, such responsibility is usually assumed by litigants making Court applications without notice and to some extent, it may address some of the concerns expressed by the hon Leader of the Opposition as well.
On the twin threshold questions of (a) whether a question of public interest has arisen and (b) whether it is necessary in the public interest for the AG to intervene, I seek clarification as to what is meant by the words "has arisen".
Sometimes, public interest issues may be not part of the key issues as framed by the private parties to the proceedings.
There could also be a situation, as was discussed in the Court of Appeal case of ARW v Comptroller of Income Tax, where the core decision of the Court may not trigger a public interest issue although the issue may have been discussed but not perhaps being germane for the disposal of the case.
My next question is whether it is intended that when a Court decides that it is necessary for the AG to intervene, it would still have a discretion to consider all factors which are relevant to the balance of justice in the particular case, before it makes its decision whether or not to allow the intervention.
This is the power that is provided for with the Courts under the Rules of Court when hearing the usual joinder applications. I seek the hon Minister's clarification as to whether it is intended that the same approach will apply to the AG. And in this regard, I will say that it is not unusual for AGs to apply to intervene in civil proceedings because there could be situations where, for example, in my own experience, documents may be sought and these documents may be something that is subject to state immunity. And in those circumstances, in safeguarding public interests, sometimes, the AG may wish to intervene. So, from my own experience, it is not unusual.
Sir, I would like to conclude now.
My two points may appear separate, but they are in fact, intertwined. The first relates to a key moral imperative, that in the administration of justice, the means of administration must not disadvantage any group. This speaks to the principle of fairness as put by the hon Minister. My second point is also a moral imperative, that in the administration of justice, the source of power for the guardian of public interest, the hon AG, must derive, not just from common law, but from the highest law of the land, our Constitution. This speaks to the need for legitimacy. I welcome the hon Minister's views on my suggestions. With that, I support the Bill.
Mr Louis Ng.
Sir, this Bill will support the digitalisation of proceedings and signal a focus on amicable dispute resolution, among other changes.
The Courts have shown remarkable resilience in this pandemic, adapting to ensure that the judicial system remains open to users and that justice is both done and seen to be done. I thank the Registry and judicial officers who have worked tirelessly to ensure the continuity and integrity of judicial processes.
I have three points of clarification to make.
First, I seek clarification on the Court's new power to order parties to attempt amicable resolution in civil proceedings.
Amicable resolution, such as negotiation and mediation, work best when parties participate in good faith. Good intentions are critical. This point is underscored in the Rules of the Court. The Rules allow the Court to consider how parties acted during their attempts at alternative dispute-resolution when making its decision on costs orders.
However, with the new paragraph 23 of the First Schedule of the Supreme Court of Judicature Act, the Court can now order parties to attempt an amicable resolution. In such cases, the process is no longer voluntary and it raises four sets of questions about effectiveness and implementation.
One, has the Ministry studied what cases are amenable to amicable resolution? Clarity on such situations will help the Court decide on what circumstances to order an attempt at an amicable resolution.
Two, what constitutes an attempt at amicable resolution? Will there be clear requirements to verify such attempts? For instance, it may be useful to require that parties attempting mediation go through an accredited mediator.
Three, how will the Court ensure that parties participate with good faith in attempts at amicable resolution? I can imagine a bad-faith party relying on the Court's order of amicable resolution as a strategic manoeuvre by parties to prolong litigation and financially wear down opponents.
Four, will there be consequences of non-compliance with such an order?
The Minister's answers to these questions will help ensure that Court orders for amicable resolution do not get undermined by bad-faith actors.
My second clarification is on the new section 79, which gives legal immunity to the Court registrars and Court-appointed mediators for actions that they take as part of mediation or alternative dispute resolution for the Supreme Court. The immunity is limited to actions done in good faith and without any fraud or wilful misconduct.
This appears to mirror section 68(4) of the State Courts Act, which provides similar protections for judicial officers and Court-appointed mediators for alternative dispute resolution in the State Courts.
Alternative resolution processes, such as mediation and conciliation require different skills from hearing a case as an adjudicator. These specialised skills are honed by professional mediators and conciliators over years of training and experience. For this reason, judicial officers in the State Courts are required to undergo basic training in mediation.
With the extension of immunity to officers in the Supreme Court, will the Registrar, Deputy Registrars and Assistant Registrars be required to undergo training in mediation and other alternative resolution processes?
Will there be a minimum requirement that officers and mediators at both State Courts and Supreme Court must meet?
High quality training will ensure that alternative resolution is a realistic and cost-effective alternative to litigation. Accreditation is offered by the Singapore Mediation Centre, Singapore International Mediation Institute and International Mediation Institute, just to name a few.
In addition, who will be the Court-appointed mediators in the Supreme Court? Are there plans to set up an equivalent of the State Courts' Court Dispute Resolution Cluster in the Supreme Court?
How will the Ministry also support the growth of the private mediation service providers? Private mediation service providers stimulate our mediation sector with innovation and competition. With the expanded reliance on mediation and similar processes in Singapore, we should integrate and regulate such private providers carefully.
My third and final point is a proposal. Today's Bill amends the law to allow various proceedings at the State Court and Supreme Court to be heard by a live video link. This is a welcomed move that mirrors changes which have already taken place on the ground due to COVID-19.
However, with more proceedings taking place by live video link, there is also greater risk of issues which may undermine the security and integrity of Court proceedings. These include, for instance, unauthorised recording of Court proceedings, witness coaching or poor Internet connection affecting the quality of evidence presented to Court.
Will the Court consider implementing a protocol for proceedings conducted by way of a live video link to standardise the way video link hearings are conducted? Such protocol should address issues from the testing of the video link to the arrangements that should be in place for witnesses to give evidence remotely.
Sir, notwithstanding these points, I stand in support of the Bill.
Mr Speaker, Sir, the Courts (Civil and Criminal Justice) Reform Bill aims to improve the accessibility of legal services for everyone. On the whole, I do support the Bill. However, I would like to bring up certain concerns and suggestions which I hope can be addressed in this debate.
Firstly, under paragraph 4, the amendments that will be made to section 5 is broader in scope than the existing contempt provisions for unauthorised audio or visual recordings. Anyone who makes such recordings, even if they were not the source of the original recording or was present in Court at the time, would be penalised. If this is the intention of the legislature, would educational campaigns be held to notify the general public of this substantial change in contempt laws?
Could I also clarify if lawyers and litigants-in-persons will also be prohibited from making their own non-official audio transcripts of court proceedings, trials and hearings? Such recordings can facilitate understanding for proceedings that may take several days and are information intensive.
Moreover, I would also like to welcome the amendments introduced under paragraph 6 through the new section 26A. The new amendments will allow for the presentation of evidence via video or television links. Expert witnesses from other countries can now provide testimony through live video link without having to come to Singapore. This will make litigation not only more efficient but cost-effective as well. Additionally, in the midst of a pandemic, this is a necessary amendment to navigate the new realities of border closures.
Secondly, I applaud the move to simplify court terminology to make our laws more accessible and understandable to the general public. Lay people would be unfamiliar with legal phrases that are often not used in everyday life. This move will improve the accessibility of legal due process for in-person litigants.
That said, I would also like to highlight some concerns I have. There are inconsistencies in the terminology used for the civil and criminal courts and for the Singapore International Commercial Court (SICC). Moreover, these new terms do not apply to the family division of the High Court, or Family Court, or a youth court. This inconsistency may be confusing for both laypersons and lawyers and may cause both legal practitioners and laypersons to talk at cross purposes given that similar sounding words have different meanings.
Also, some of the terms considered archaic and to be removed by the SICC are now used as the new simplified expressions for the civil and criminal courts. This anomaly suggests a lack of agreement by the Courts and Legislature over whether such terms are archaic or not.
Lastly, paragraph 10 introduces amendments to the Attorney-General (Additional Functions) Act, which enable the AG to intervene in any proceedings, even those that are not criminal proceedings, to which the AG is neither a party nor representing a party and retrospectively, in the public interest. These include proceedings that are often personal and private in nature. Then these powers are extensive.
May I ask what prompted this change? May I also clarify when it would be of public interest for the AG to interfere with the legal process of matters that do not concern the AG's office? For example, when would an element of public interest arise in issues of civil or family proceedings? Could the Minister also provide us with the types of scenarios contemplated that would require the exercise of the AG's new powers?
The above queries are rooted in real-world concerns about the implications of the AG's new powers for parties to proceedings. For example, under the new section 4A(9), once the AG is granted permission by the Courts to intervene in any proceedings, he is deemed a party to the proceedings and inter alia, has the same right of appeal in the proceedings. Who will bear the burden of cost of the appeal if neither original party to the proceedings had sought for or wanted the appeal?
Also, would the Minister be concerned about the chilling effect of these new powers on the rule of law and litigants given that, it is possible under the new laws, for almost every proceeding now to have an element of public interest?
Mr Speaker, Sir, all in all, I believe the amendments will allow the Courts to carry out their functions more effectively and therefore, I support the Bill.
Mr Speaker, Sir, I rise in support of the Bill. The cornerstone of our legal system has always been access to justice for all. In pursuit of this aim, the judicial system must be constantly reviewed to remain relevant, robust and efficient.
Digital transformation and a citizenry increasingly aware of its legal rights necessitate our legal system to evolve accordingly. The key amendments in this Bill are in the right direction to meet these evolving trends.
I will highlight three key areas of the amendments along with a few clarifications.
First, I applaud the Ministry's efforts in advancing access to justice for all. Over the years, the Ministry has simplified complex Court processes and improved accessibility to such information. For example, the Insolvency Office's website offers a comprehensive, one-stop suite of information for bankruptcy applications. The information provided on the website is reader-friendly and tailored for laypersons.
I fully support the Ministry's move to simplify court terminology within the amendments. An example of such simplification is changing the expression of "subpoena" to "an order to attend court". The simplification of legal terminologies is similar to those undertaken in jurisdictions, such as Britain and Canada. Academics have also advocated for such changes. Complex legal terminology in statutes can exclude the layperson from fully exercising their right of self-representation as they are less able to be cognisant of their legal rights. As we move towards a more accessible judicial system for litigants-in-persons, we must work towards continually revising our laws to ensure that they are easily understandable by an average layperson.
Secondly, the digital transformation wave has not spared the judicial system. COVID-19 has accelerated the use of technology and the Courts are now better prepared to leverage technology in legal proceedings. Perhaps, the most important change is that of the advent of remote hearings.
While remote hearings were practically unheard of in the justice system before the pandemic, it is now a ubiquitous feature in various jurisdictions. The amendments formally legislate the practice of remote hearings. This allows the judicial system greater flexibility to dispose of matters efficiently.
Evidence may also be given via electronic means, such as live video and television links. This is beneficial for both the Court and litigants. For example, obtaining testimonies from expert witnesses, especially those of experts located out of Singapore, can be extremely costly. The admission of evidence via video links can significantly reduce the costs of calling upon experts.
Furthermore, with crimes and civil matters becoming increasingly borderless, witnesses may sometimes be located overseas. The amendments will similarly ensure that matters at hand can be disposed of expediently and reduces costs on litigants in bringing witnesses to Singapore.
Notwithstanding the benefits leveraging technology brings to the judicial system, I have one area of concern. As with all forms of technology, the benefits of it are followed by risks of misuse. My concern lies within the rising prevalence of Deepfake Artificial Intelligence. Deepfakes are created using artificial intelligence whereby an existing image or video is manipulated and replaced with someone else's face. While deepfakes have been primarily contained to the manipulation of pre-recorded images and videos, there has been new software, such as Avatarify. Unlike traditional deepfake software, it enables users to impose anyone else's face on their own in real-time within applications, such as Zoom.
I worry that such software will become increasingly sophisticated with time. This increases the likelihood of manipulation during remote hearings where witnesses, or even parties, may be impersonated. It is thus imperative to ensure the highest level of technical standards in conducting such processes to preserve the integrity of the judicial system.
Considering the rapidly evolving forms of such disruptive technologies, how robust are the current technical safeguards within our judicial system in countering such threats? How can video links be protected such that vulnerable persons’ identities would not be revealed via hacking?
Lastly, on the Court’s power to order parties to attempt to resolve disputes by amicable resolution under the proposed section 23 in the Supreme Court of Judicature Act, or SCJA. Alternative dispute resolution, or ADR, mechanisms are much more cost-effective in resolving disputes, compared to litigation. Parties can, more often than not, reach an amicable settlement without the need to commence litigious proceedings. It also prevents Singapore from becoming increasingly litigious.
However, I would like to clarify if the Court should consider the intention of parties in exercising its powers to order parties to attempt to resolve disputes by amicable resolution. There may be situations where one or both parties do not want to participate in these ADRs in good faith. In such circumstances, ordering parties to do so might be counter-productive.
Sir, despite Singapore being consistently ranked highly in the WJP’s Rule of Law Index, we must continue to build on our efforts thus far. At its core, the Bill modernises the form of our judicial system, while retaining its substance and core objective: accessibility to justice for all. I stand in support of the Bill which ensures our judicial system remains highly receptive to the needs of its users.
Deputy Leader. Adjournment of Debate.
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