Singapore's Justice System

Mr Speaker, a point of order. Am I not given the right of reply?

You will be replying at the end.

When would that be? It should be before the vote.

After Ms Indranee Rajah, you will wrap up. You will be wrapping up the discussion. Ms Indranee Rajah.

Mr Speaker, I would like your ruling whether I am entitled to a right of reply as the mover of the original Motion.

Yes, you will be rounding up.

Yes, you will be rounding up the debate. No change to that.

Thank you, Mr Speaker. Mr Speaker, when Ms Sylvia Lim moved this Motion, she said that she was not saying that the system is broken but it can be improved. She also said that today's Motion is not about tearing down the system or discouraging those who work in law enforcement, the AGC or the Courts; far from it, it is about a desire to raise the system to the next level, which indeed I think is something that we can all agree on.

The Workers' Party had put forward some suggestions. These have been debated. I would like in my speech to address the suggestions that were put forward by Mr Pritam Singh, the Leader of the Opposition, specifically with regard to decoupling the function of the Attorney-General and the function of the Public Prosecutor.

Mr Singh made three points. But actually, the second two points are really premised on the first. So, let me deal with the first one.

His first point was that there is, allegedly, a weakness in our prosecutorial structure and that arises from the two roles of the AG: one being his role as the Government's legal advisor and the other being the role as a Public Prosecutor. In the first, he takes charge of three areas – legislation, international affairs and civil matters. In the second, as the Public Prosecutor, he has to prosecute without fear or favour.

The essence of Mr Singh's argument is that there is a conflict, an inherent conflict in these two roles. And he articulated it in this form, that as the Government's legal advisor, the Attorney-General's duty is to protect the interests of the Government and as the Public Prosecutor, it is to represent the public and prosecute without fear or favour.

In addressing this, he also mentioned that Ms Sylvia Lim had raised this point previously. Indeed, she had, but not quite in the same way.

So, what I want to do is firstly, address how Ms Sylvia Lim articulated it and then, I will go on to address how Mr Singh articulated it. To be fair, they both want to reach the same point, which is that there is a conflict so you should decouple them. But actually, the argument has evolved a little bit.

Let me first start off with how Ms Sylvia Lim first put it. She put it in this way: "in order to further strengthen the system and shore up the independence of the Public Prosecutor", we should "consider splitting the two roles...to reside in two different offices, so that the person who is the Public Prosecutor or PP, 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."

So, the first point that she made was that, you must decouple it so that the person, who is the PP, is not the same person taking the Government's instructions in non-criminal matters. But this argument is not correct because in non-criminal matters the Attorney-General advises the Government, the Government is his client. And similar to private sector matters, he takes in instructions on matters which are within the Government's purview.

But in criminal matters, the Attorney-General decides whether to prosecute. The Executive and the Cabinet have no say in that.

So, there is no issue with the same person in both roles because the system ensures that in his PP role, the AG acts independently. And the thrust of that argument that Ms Sylvia Lim originally made was that, you are taking the Government's instructions. You take the Government's instructions on the civil matters, on the other matters, but not when it comes to the decision to prosecute.

In responding to that, then Senior Minister of State Edwin Tong also pointed out that the reason why the role is separate in other countries is because in those countries where the roles are separate – in countries such as UK, Canada, Australia, New Zealand – the Attorney-General holds political office. He is a political office holder or he sits in Cabinet. There is therefore the question of being subject to political pressures and the separation of the role of the Attorney-General from the public prosecutor in those jurisdictions has to be looked at in that context because he is subject to political pressure. Whereas here – and I will go on to discuss that in a bit more detail later – our situation is different because our Constitution has safeguards in that our AG does not hold political office. The constitutional safeguards ensure that he is protected from such political pressures, and it allows him to discharge both his roles as PP and the Government's legal advisor without fear or favour.

I come back to Mr Singh's argument today. Previously, the argument was you should do it the same way as other countries because of independence. And then, of course, it was pointed out that in other countries, because the AG is a political office holder, that is why you have to separate it.

So, today, the argument is that as the Government's legal advisor, the AG's duty is to protect the interests of the Government. Well, yes and no.

Because as Mr Singh pointed out, as the Government's legal advisor, the AG takes charge of legislation. So, when he protects the Government's interest in legislation, that has nothing to do with his prosecutorial function.

His other role as advisor is international affairs. When he is advising the Government on international affairs, that has nothing to do with prosecution.

The third one – civil matters. When he is advising the Government on civil matters, that has nothing to do with his role as a prosecutor.

And when it comes to his role as a prosecutor, we agree he must be able to prosecute without fear or favour – and he does.

The track record shows that the Attorney-General has prosecuted high level people before, without fear or favour. This includes, for example, the prosecution of Mr Ng Boon Gay, the former director of the CNB; the prosecution of Mr Peter Lim, the former SCDF Commissioner; and more recently, the charges against Mr Pek Lian Guan, CEO and Executive Director of Tiong Seng Holdings, and Pay Teow Heng, Director of Tiong Seng Contractors (Private) Limited.

So, there has never been an issue about being able to act independently.

Mr Singh then raised a couple of examples of where there may be such conflict. And he talked about the difficulty the AG may have in prosecuting Government-linked companies, for example. But again, that is not the case because we have had no difficulty doing that.

In 2017, seven former officers of ST Marine who had been charged were convicted for giving corrupt payments to secure business and/or for other offences. These officers included former Presidents of ST Marine See Leong Teck and Chang Cheow Teck. ST Marine is a subsidiary of ST Engineering, which is in turn, majority-owned by Temasek Holdings, which is a Government-linked company.

So, we have had no issue with prosecuting anybody, whether Government-linked or not, provided the PP sees that there is a case on the face of it to bring charges.

Then, Mr Singh went on to say that it would be difficult, for example, if in the case of – it is a hypothetical example, not a current one – a future government, where the Prime Minister and the AG may be very chummy and therefore the Attorney-General or the PP may not wish to bring a prosecution, either against the Prime Minister if there was an offence committed or somebody close, that thereby, he may have a desire to keep his job for favours or simply because the hypothetical alleged future Prime Minister and the AG are cronies.

Sir, section 22G of the Constitution provides that the Director of CPIB can go to the President if the Prime Minister refuses to proceed with a corruption investigation. The Constitution has many checks and balances. And it envisages that if such a situation may happen where the Prime Minister does not act in accordance with his duty, there is a check, there is a balance, and there is an avenue where corruption and other offences can be prosecuted.

So, really, I have dealt with the alleged conflict. And the position is that there is no conflict between the two roles, for the reasons I have explained.

Mr Singh did point out that in other countries and he named two. He did not name them, but we know who they are. He said that in both these countries that prominent cases of the Attorney-General being subject to political pressure. And that is precisely the point.

Our system protects the Attorney-General from being subject to political pressure. First, with the appointment of the AG. The AG is appointed by the President on the advice of the Prime Minister. But the Prime Minister cannot do it just as a whim. The Prime Minister does it in consultation with the Chief Justice, in consultation with the incumbent Attorney-General and the Chairman of the Public Service Commission.

Appointment is one thing. The next thing is removal. It is very difficult under our system to remove the Attorney-General. Removal is by the President and this time not acting on advice. It is by the President, acting in his or her discretion, and if it concurs with the advice of the Prime Minister, and the Prime Minister cannot tender such advice except if the AG is unable to discharge the functions of his office whether arising from infirmity of body or mind or any other cause or for misbehaviour. [Please refer to "Clarification by Minister, Prime Minister's Office and Second Minister for Finance and National Development", Official Report, 4 November 2020, Vol 95, Issue No 13, Correction by Written Statement section.]

So, the Prime Minister cannot just say, "I advise you to get rid of the AG because I happen not to like the way he did this prosecution, or I wanted him to do this and he did not do it". He cannot. The Prime Minister is constrained by the constitutional provisions.

And further, the Prime Minister cannot tender such advice without the concurrence of a tribunal, consisting of the Chief Justice and two other Judges of the Supreme Court.

So, our system has safeguards to ensure the independence of the Attorney-General and this is very different from other jurisdictions. In fact, in the US, for example, the Attorney-General's position is entirely at the President's pleasure. So, it is not so much about the appointment. It is about whether or not once that person is in place, how easy is it for you to remove him. And in our case, it is not easy. And that gives the Attorney-General and the Public Prosecutor the assurance of knowing that he can carry out his duty without interference.

Mr Singh then went on to say he had two suggestions for improvements, but the improvements are premised on being able to make out that there is a case that there was a conflict. And I have addressed why there is no conflict.

But there is one point I want to address, which is security of tenure. Because I think the point that Mr Singh will likely make is that, well, you have all these safeguards, but if you have a relatively short term of tenure, then that sort of takes away from the ability to be independent.

But actually, that is not the case either. There is no general rule for tenure. Some countries have a fixed tenure for their Attorneys-General, and some do not. Officers in charge of prosecutions in England and Wales, Australia, New Zealand and Hong Kong have no security of tenure and typically serve predetermined terms which may be renewable.

And in the US, there is no security of tenure at all. In the words of one of their former Attorney-Generals who was asked to resign, he said, "I serve at the pleasure of the President. I've understood that from the day I took the job".

So, what is more important is the constitutional safeguards against removal, and those we have in Singapore.

The third point that Mr Singh made was that he suggested that the system eschews the appointment of ex-Member of Parliament as a Public Prosecutor. And he did say that such an individual can be considered for the role of Government legal advisor. That too is a little bit different from the position advanced by Ms Sylvia Lim before. Because Ms Sylvia Lim before when she raised this point, talked about not having an ex-Member of Parliament, or MP, as the Attorney-General. But shifted slightly – now, it has just become only Public Prosecutor.

But never mind. Let me let me deal with it in any event.

The reason given by Mr Singh was this. He said firstly it would be natural for a former elected MP to have imbibed the political views of the party he or she used to represent. Even if the Public Prosecutor who was previously an MP does his or her sincere best to be objective, they cannot help but be a product of their previous beliefs, which they perhaps still hold. As a Public Prosecutor who was an MP of a political party and steeped in the party's ideology for years, he is likely to hold certain beliefs and approach things in certain ways.

On the face of it, yes, it sounds a little bit worrying. But let us ask ourselves, what does that actually mean? What are the political views of the party that Mr Hri Kumar used to be in, for example.

Well, one of the views is we believe in meritocracy. As a member of the PAP, we believe in meritocracy. We believe in integrity. We believe in not having a corrupt system. We believe in access of justice. I am not sure how this would affect his prosecutorial functions. We also believe in a green and sustainable Singapore. I am not sure how that would affect his prosecutorial functions as well. I mean, what is it about the beliefs of the PAP that would somehow affect his prosecutorial functions? Nothing.

There is nothing. Read our entire manifesto. There is nothing in there that would conflict with the ability of the Deputy Attorney-General to prosecute cases. If the argument is being made that he may have a conflict because of a political reason, would he have to charge somebody who, for example, was from the party previously whom he knows, that is a different argument. That is basically a situation where you see a conflict of interest in which case, the right thing, the proper thing to do is you recuse yourself. Which is exactly the approach that has been taken all along. It is standard procedure. Lawyers do that all the time.

Mr Singh did point out that appearances are important, he referred to how in this case, it was mentioned that the Attorney-General Mr Lucien Wong was not involved in any prosecutorial decisions regarding Ms Parti Liyani and that he would recuse himself from any on-going review of the case. As Minister Shanmugam explained, the earlier part of the prosecution, Mr Wong had nothing to do with it at all. That was dealt with at a different level. And since the matter has surfaced, he has recused himself very properly.

And the point I am making is that this is how the system works and that is the assurance that people can have, that if there is some conflict, that the Deputy Attorney-General or the Attorney-General will do the correct thing.

So, I believe, Mr Speaker, I have addressed the points raised by Mr Singh. I just would conclude by saying that it seems that there is much in common. There are some differences in terms of the approach towards the Motion which Mr Murali's amendment addresses. I therefore support the amended Motion. [Applause.]

Thank you, Mr Speaker. The first, with regard to a general point that the Leader makes about conflict. I will make the point that I do not believe the Leader's answers have squarely addressed the reality of possible conflict between the Attorney-General in his role as Government legal adviser on the one hand and public prosecutor on the other. I still take the view that the conflict is possible and that is the basis of the suggestion that I put in my speech.

I will give an example. I gave two examples: one was with regard to that Government-linked company, which I hypothesised. Now, let me try and take it to some specifics. There is an old article, 23 December 1997. It is an opinion piece by an individual who would later become the Attorney-General in Singapore, Mr Walter Woon. And he talked about malfeasance, a corruption scandal involving Keppel again, but not the latest deferred prosecution agreement that was entered into by —

Yes, I am. Not the deferred prosecution agreement between Brazil, the US and Singapore, but a similar scandal that occurred previously. And there, what Mr Woon really says is the Attorney-General decides to go after the company, but then does not prosecute the individuals. And so, the situation is the company can accept the fine, but the individuals who later may benefit because of these bribes that were given – they benefit through the fact that the company will give out more bonuses to them, for example.

So, the question, of course, is do we have a situation where we can tell ourselves, "Look, there is no prospect, no implicit bias here". Is there a system we can consider of conceive of, which can reduce that prospect in the public perception? And this is where I feel a division of the roles actually may be more helpful to the Government. That is the first point.

The second point is with regard to security of tenure. I hear what the Leader is saying. I take the point. Even in our own experience in Singapore, we have had Attorney-Generals who have served for a long period of time, and others just two years. And my point really is, it would serve the Government well, if the term was at least, for example, five years. I can agree with the suggestion that Mr Walter Woon made because it heightens the prospect of independence in the eyes of the public that this individual was not removed for reasons which the public may start imagining – which may or may not be true.

So, a longer term for the Attorney-General I think would be good for the system.

The third point is about a Member of Parliament who takes on the role of AG. Of course, I can agree with the Leader about integrity, meritocracy and so forth. But again, I think the bigger question is whether the public see it that way. And I would forward that while reasonable people can have different views about this, it is probably more propitious to have that individual not be associated with a political party. And that is a view that reasonable people can have a different view about.

To that end, I did consider whether this position is supposed to be for all time. Let us say, if an MP steps down in 2020, does it mean that he cannot take on the appointment as AG forever and ever? Could there be some scope to consider at least a moratorium period or a garden leave period? I did consider that. So, if there is a question of some concession or some coming together as the Leader suggested in her wrapping-up paragraph and that the positions between the Government and Opposition are not so far apart, perhaps the Government can consider some of the proposals in that light to see how we can end up with a better legal system.

I thank the Leader of the Opposition for his clarifications. He raised three. Let me deal with them in turn. With respect to the first one, he mentioned a concern where he articulated that you go after the company and not the individuals. It so happens that in this case, I think if he is referring to the previous case of Keppel O&M, as I had explained in a previous answer in Parliament, that a conditional warning was issued to the company with various penalties. And in that case I had also explained that with respect to the individuals, evidence still needed to be gathered and that it was not a case where somebody had got off or not got off. But rather, it was a case where the Public Prosecutor was facing challenges in terms of getting the evidence. In fact, those investigations still continue. The Attorney-General's office or the Public Prosecutor's office has requested further information and it is still pending. That is out of our hands.

The second point was with respect to the term. I am not sure if I got the point correctly. Just to extend the timing maybe to a longer period. Yes. You can take different terms, it depends on various countries. But the point I was making, and which is actually the more fundamental point, whatever the term is, during that term, nobody can interfere with that person's exercise of his prosecutorial discretion. And that is what guarantees the independence of the system.

The third point, how the public perceives it if somebody who was a former politician becomes a Public Prosecutor, the answer is has that person given anyone any cause for concern? If the person has resigned from the political party, the person takes on the duties, knows the duties and has not given any cause for concern or acted in any way, then there is no reason why the public should feel alarmed.

But and this is a big "but", if that person in any way shows that he or she is not acting in accordance with the duties, then appropriate action would have to be taken. That is how we can make sure that our system remains independent, remains strong and remains robust. But I welcome the debate because I understand what drives it, which is the desire to improve the system and to make one better for Singapore. I thank the Leader of the Opposition for his suggestions.

Thank you, Mr Speaker. On the first point, this is just as a matter of clarification with the Leader. I do not mean to be argumentative, but I am not referring to the latest Keppel infraction. In 1997, there was another case where Keppel Corp, I do not know the formal legal entity that was involved in this, it does not say Keppel O&M, so I am just reading off what it is. It says, "Keppel Corp faced 17 charges of bribery, a total of $8.3 million was paid to the Repair and Technical Manager of a British subsidiary of Exxon" and Keppel got contracts to repair 17 of their tankers. "The statement of facts extended to the court revealed that this had been done with the knowledge and approval of senior Keppel executives and some directors", "the prosecution chose to proceed only with three of the charges. Keppel pleaded guilty, which meant that it admitted to the statement of facts without qualification", "the district judge fined Keppel the maximum $100,000 on each of the charges and a total of $300,000, and that was the end of the matter".

So, I think the point that is being made in this particular case is, the question on the minds of the public in the context of a public prosecutor that also performs the role of the Government legal advisor is, was that discretion, the prosecutorial discretion exercised appropriately? And I think this is where as the Leader suggests, she understands where the thrust of some of our concerns are coming from. These are the sort of situations which we feel may compromise in the public eye, rightly or wrongly, the independence of the AG.

Mr Speaker, Sir, I do not have the facts with respect to the 1997 case. But the point is that there does not seem to be anything in what Mr Singh has said which indicates why further action was not taken. We do not know at this point of time and I do not wish to speculate.

The point I wish to make is that it is not at all clear that that has anything to do with the fact that the PP also has an AG role.

I think where the Leader of the Opposition is coming from is that whatever the case in the prosecution, people must feel satisfied that the prosecutor in exercising his functions and duties, has done so properly. And I have given an example of how not in 1997 but many years down the line, where it is a case of the company and potential liability for individuals, company was pursued and the case against individuals is still open.

So, you can see that whatever it is, the Public Prosecutor looks at it and where it is appropriate, takes the necessary action.