Constitution of the Republic of Singapore (Amendment) Bill – Speech by Sylvia Lim

(Delivered in Parliament on 5 November 2019)

The Constitution Amendment Bill and the two related Bills are aimed at re-structuring the Supreme Court for better efficiency in the light of caseload demands. In summary, I understand the key proposed changes to be as follows:

First, there will be a new Appellate Division of the High Court, which will hear most appeals from judgments in civil cases originally heard by the High Court.

Second, the channelling of cases to the new Appellate Division will free up the Court of Appeal to concentrate on appeals which are generally of wider public interest. Under the proposed changes, all appeals from criminal cases originally heard by the High Court, will continue to go on appeal to the apex court; this is rightly so, as criminal cases heard by the High Court may involve sentences of life imprisonment or the death penalty, and thus deserve scrutiny by the highest appellate court. As for civil cases, there is also a list of certain types of civil cases that may still be appealed to the Court of Appeal from the High Court.

While we have some queries on some details of the proposed changes, the Workers’ Party is supportive of the rationale for the re-structure of the Supreme Court. If the caseload is efficiently distributed, parties will have less waiting time for appeals, which must be a good thing. Nevertheless, I wonder whether the government has considered how the change might impact legal costs payable by parties? In other words, will the introduction of a middle tier Appellate Division lead to cost escalation for appeals to the Court of Appeal, up from present levels? If so, this would be an unwelcome side-effect of the changes.

I would like to take this opportunity to re-visit one important issue on the staffing of the Supreme Court judiciary. The Constitution Amendment Bill provides at Clause 2 that there are various categories of persons holding “high judicial office”, which is the position today. Such persons are the Chief Justice, a Justice of the Court of Appeal, a Judge of the Appellate Division, a Judge of the High Court, a Judicial Commissioner, a Senior Judge or an International Judge. For some of these categories of judicial office holders, they are protected under Article 98(1) of the Constitution with security of tenure until age 65. Other categories, however, like Judicial Commissioners and Senior Judges, are appointed for short terms of one to three years. As we have said in the past, in our view, having short-term judicial office holders is not ideal.

Since we have debated this matter in the past, I shall keep my remarks on the principle short. The judicial branch of government plays a vital role in the country’s system of checks and balances between the Executive Government, the Legislature or Parliament, and the Judiciary. The courts are called upon to adjudicate disputes and must decide without fear or favour, regardless of who the parties are. To give assurance that the judicial branch is robust, security of tenure for judges is fundamental. Just as MPs are accorded with Parliamentary Privilege to ensure free debate in this House, Judges are accorded security of tenure till retirement age; it is further provided by the Constitution that the office of a Supreme Court Judge must not be abolished during the continuance in office of the Judge.

In 1979 when the post of Judicial Commissioners was created, one of the reasons given in the House was that they would help clear case backlogs. In 2014, when the post of Senior Judges was created, it was mentioned that retaining Judges past their retirement age would enable tapping on their expertise.

To serve these purposes, we would like to repeat our call for the government to review the retirement age of Supreme Court judges, to retire later, say at 70 years old instead. In past debates, I do not recall the government rejecting outright such a move and today, I would like to give further grounds for this from a manpower utilisation perspective.

This suggestion for the retirement age for a Supreme Court Judges to be later than 65 is not radical. At US Supreme Court, judges are appointed for life. The current composition of the US Supreme Court includes two Judges in their eighties, and the average age of the bench is about 67 years. In Singapore, what is age 65 in today’s context? Singaporeans today have better health and longer lives. Just looking around this House, there are several Members over 65, whom I need not name. Nobody thinks they are incapable of rational thought or are losing their marbles. At the national level, data from MOM shows that for 2018, the labour force participation rate of those aged between 65 and 69 is 45.3%, close to 1 in 2 persons. We see over 70s being cleaners and company directors. Being a Judge requires brainwork but is not physically demanding. We believe extending the retirement age of Judges to 70 is entirely feasible, to let our Judges work longer with security of tenure, which will be superior to having short-term judges.

We hope the government will continue its reviews to improve justice including reviewing the security and retirement age of Judges. In making this suggestion, it is not my intention to cast doubt on the integrity of those appointed as Judicial Commissioners or Senior Judges. Neither are my observations directed at International Judges, who may hold concurrent appointments in other jurisdictions and whose caseload revolves around international commercial disputes.