Appointment of New Attorney-General in Accordance with Article 35 of Constitution

Ms Sylvia Lim asked the Prime Minister whether the appointment of the new Attorney-General, to take effect on 14 January 2017, accords with Article 35 of the Constitution.

The Minister for Law (Mr K Shanmugam) (for the Prime Minister): Madam, I am taking this question on behalf of the Prime Minister. The appointment of the new Attorney-General is in accordance with Article 35 of the Constitution.

Supplementary question for the Minister. My concern is actually regarding specifically section 35(4) of the Constitution. I would like his comments on whether he feels that there is any issue with regard to the age of the new appointee.

Thank you, Mdm Speaker, for allowing me to answer. No, Article 35(4) does not create an age issue for the Appointee.

Thank you, Madam. I have a different view of the Article, and I would like to ask the Minister whether he agrees that this could be a reading of Article 35(4), and my view is this.

Article 35(4) provides that the AG may be appointed for a specific period of time and it also says that, subject to his being removed, he shall vacate his office at the expiration of the period but subject as aforesaid, meaning subject to the removal clause, he should otherwise hold office until the age of 60 years.

Furthermore, the proviso to Article 35(4) states that "The President has a discretion if he concurs with the advice of the Prime Minister to permit an AG who has attained the 60 years to remain in office." So, my question is, the Article does not seem to contemplate the appointment of a new AG who is more than 60 years old to assume the post.

I think that would not be an accurate reading. In fact, it would be quite an inaccurate reading. If you look at Article 35(4) carefully, it provides for two types of appointments; appointments in two situations. One, an appointment of an AG, without a specific term. That can only be done when the appointee is under 60 years of age. There are two parts to Article 35(4). In that first situation, the appointment ends when he reaches the age of 60. The second situation is when the appointment of an AG is for a specified term − say two years, three years and so on. That person can be below 60, can be above 60 and the appointment ends when the term ends. And of course, in both cases, the Government may allow extensions beyond the age of 60 or beyond the specified term.

The proviso applies in one of those situations, when a person below 60 has been appointed, and then he is allowed to carry on beyond 60.

Any other reading would be − looking for a reasonable word − would not make much sense because that would say that you can carry on beyond 60 but only if you have been appointed before you reach 60. And in which case, then the age does not seem to be the relevant criteria.

And if you look at past practice, the late Mr Tan Boon Teik held the office until past the age of 63. At that time, the relevant provision stated age 55. Mr Chan Sek Keong who was AG as well as Chief Justice was appointed in 1992 at the age of 54. He was appointed for a two-year term past the age of 55. And in 1994, that age in Article 35(4) was changed from 55 to 60. And Mr Chan continued to hold the office past the age of 60. And he was re-appointed for a series of terms thereafter.

Current Judge of Appeal, Justice Chao Hick Tin was above the age of 60 when he was first appointed AG. He was 63 when he was appointed for a term of two years, and 65 when he left office. And we have had a number of AGs below the age of 60 who were appointed for a specific term; Mr Walter Woon, the current Chief Justice, Justice Steven Chong and Mr V K Rajah. All these appointments were in accordance with the Constitution. And the interpretation I have put forward, Mdm Speaker, is something we have confirmed with the Attorney-General's Chambers.

Thank you, Madam. Madam, I think the Minister would also note that there is an Article 35(5) where it is specifically provided that, "Nothing that is done by the AG shall be invalid by reason only that he has attained the age at which it is required by this Article to vacate his office." So, there is an indication in the Constitution about the importance of the age, and some of the office-holders that he mentioned earlier − I think they were sitting AGs appointed before the cut-off, save for Chao Hick Tin, which case, I think, was never adjudicated.

So, my question is, whether the Government would, in good faith, to clarify this matter, apply to court for an interpretation to see whether the Government's view is correct.

That is quite ridiculous. The Government has taken advice. I am satisfied. Anybody who reads it will be satisfied. If the Member feels that there is something wrong, I would leave it to the Member to apply.

If the Member is right, a number of anomalies. Of course, Justice Chao Hick Tin's appointment as AG would then have been not in order.

Secondly, if you look at Article 35(5) − so according to the Member then, if a person is above 60 − then Article 35(4), since it only applies before the age of 60, then what happens to decisions taken by those people above 60? You must read the Constitution with common sense. "The Attorney-General" − I am reading 35(4) − "may be appointed for a specific period" − and that is the term appointment − "and, if he was so appointed, shall, subject to clause (6), vacate his office − at the expiration of that period, but subject as aforesaid, shall otherwise hold office until he reaches the age of 60". So, it clearly envisages two types of appointments.

And it is strange to ask the Government, which has taken a view and has taken advice from AGC: "I disagree with you and therefore would you apply to court?"