By MP for Aljunied GRC, Pritam Singh
[Delivered in Parliament on 4 Nov 2014]
Workers’ Party opposes the Constitution of the Republic of Singapore (Amendment) Bill
Madam Speaker, the Workers’ Party opposes the Constitution of the Republic of Singapore (Amendment) Bill.
The Workers’ Party is uncomfortable about the appointment of short-term Senior Judges who can be re-appointed after 65. The renewal of these short-term positions are contingent on whether renewal is recommended by the Prime Minister and concurred by the President. The new Article 95(2) provides that a person who is 65 years of age of older may be appointed as the Chief Justice, a Judge of Appeal or a Judge of the High Court for a specified period. The Workers’ Party position is that this weakens a concept critical to judicial independence, namely, the security of tenure.
Democracy and Judicial Independence
According to the former Chief Justice (CJ) Mr Chan Sek Keong:
[T]he “freedom to choose one’s Government is a hallmark of democracy” and that the “governors and the governed must respect the law and all are equal before the law. But respect for and subjection to the law can only be sustained if a neutral institution exists to ensure that the law is respected and enforced against all. That institution, in all democracies, is the Judiciary” and it is “the lynchpin of a democratic society and the rule of law.” Critically, the former Chief Justice notes, “the ability of the Judiciary to fulfil such a role is by no means automatic or assured; this is heavily contingent on it being an independent institution.”
Madam Speaker, these observations of the former CJ appeared in a Singapore Academy of Law Journal article in 2010 titled,Securing and Maintaining the Independence of the Court in Judicial Proceedings. The former CJ’s thesis was that the independence of the Judiciary hosted a theoretical and practical component.
The theoretical component noted that judicial independence can be secured by surrounding judges with a protective wall against pressure from political appointees, parliamentarians and pressure groups with specific agendas. This protective wall can be categorized according to what secures independence “to individual members of the judiciary and those that secure the independence of the Judiciary as an institution.” According to CJ Chan, protection afforded by this wall gives the Judiciary the impetus to carry out its Constitutional role and gives judges unfettered freedom to adjudicate disputes without fear or favour and according to law.
Now what are the components of this wall for individual judges? They include lifelong security of tenure and remuneration, immunity from civil suits, adequate remuneration and pension rights.
What are the components of the wall for the judiciary as an institution? Well they include, a fair process for judicial appointment, adequate funding and support for the Judiciary and, respect and support for the Judiciary in general.
Lost opportunity to strengthen Judicial Independence in Singapore?
Madam Speaker, the Workers’ Party is of the firm belief that this amendment to the Constitution offers the Government an opportunity to strengthen and reinforce the protective wall around the Judiciary to carry out its Constitutional role.
In accordance with our manifesto, the Workers’ Party is of the view that the Constitution should be amended to extend the retirement age of Supreme Court judges from 65 to 70 years with no prospect for extension by the Government thereafter. While extensions and short-term appointments are administratively convenient, it is the Workers’ Party view that they weaken the protective wall that upholds judicial independence.
Under the existing regime, which this Bill re-enacts, it is conceivable that a judge past the retirement age may be retained by the Government because his or her judgments are “safe” ones and acceptable to the Government, even as the Judiciary remains a separate organ of state. While I am not suggesting that this has occurred, such judgments may well be read as a signal by other judges who have not reached retirement age, as a factor that might determine the prospects for future judicial employment past the statutory retirement age or for a permanent appointment in the case of Judicial Commissioners. Such a prospect could threaten to breach to the protective wall upholding judicial independence and confidence in the Judiciary.
It is apposite to note, as CJ Chan did in his article, that there was also a practical component to judicial independence – namely, that each judge must believe in and maintain the integrity that the judicial office requires of him or her, and that no protective wall can maintain judicial independence should judges be unwilling or unable to exercise personal independence in discharging their duties and functions.
Future-Proofing Judicial Independence
Madam Speaker, we have a first class Judiciary. There is no reason to doubt the integrity of our judges. However, judicial independence as an institution may well take centre-stage and remain in the spotlight in the years to come as our polity becomes more plural and as our citizens turn to the court to adjudicate or clarify disputes covering administrative action and social norms. Before that happens, the Government would be well placed to institutionally strengthen the protective wall of judicial independence so that confidence in the Judiciary remains high. Relooking at concept of security of tenure is good place to start.
In fact, there are some signs that the Government is working to buttress the concept of judicial independence. In the Prime Minister’s speech to Legal Service Officers (LSOs) on the 20th of March 2014, it was announced that a separate judicial track would be created for LSOs. While the structure of the Legal Service remains an integrated one – hence retaining room for improvement – this change is an improvement from the current situation where legal officers rotate between appointments in the State Courts as Magistrates and District Judges, and as Deputy Public Prosecutors in the Attorney-General’s Chambers heightening the prospects of a conflict of interest and a potential lack of judicial independence.
The creation of a separate judicial service at the State Court level is a better measure to guard against members of the Executive from influencing the career and advancement of Judges at the State Courts, since the judicial officers career track will now be assessed by the Judicial Branch Personnel Board and not the Legal Branch Personnel Board. In effect, what this change as announced by the Prime Minister does is to play some small, but not imperceptible, part in strengthening the protective wall of judicial independence. Even if this may not be the stated intention of the Government, it ought to operate as such.
Mdm Speaker, this amendment to the Constitution would have been a good opportunity for the Government to address judicial independence with an acute focus on the future of the Judiciary in Singapore. To make it better and to reinforce that protective wall. Along with the prospective introduction of a judicial service at the State Courts, it would have also been an opportunity for the Government to address judicial independence globally, across the courts in Singapore.
Other Constitutional Changes Proposed
On the other changes proposed by the Bill, the Workers’ Party does not object to setting up of the International Commercial Court and the creation of the post of an international judge as it is not envisaged to have direct ramifications on areas of sovereign domestic law which remain the domain of local judges and because it has the potential of making Singapore a key centre for legal work in Asia.
I have a clarification for the Minister about the government’s thinking behind the possible appointment of multiple Deputy Attorney-Generals. The AGC already accommodates for the appointment of a Solicitor-General and a Second Solicitor-General. Could not taxpayer money have been better utilised to strengthen the middle ranks of the Attorney-General’s Chambers if a heavier workload is the reason for the creation of the office of one or more Deputy Attorney-Generals?
Finally, I seek clarification from the Minister about the replacement of pensions with gratuities for members of the Public Service Commission, the Auditor-General and the Attorney-General going forward.
Madam Speaker, in 2012, when parliamentary pensions were abolished, DPM Teo said that “the removal of pensions will further strengthen the principle of a clean wage and align the retirement scheme of office-holders and Members of Parliament to the Central Provident Fund system.” There was no replacement of parliamentary pensions with any gratuity, and rightfully so. Indeed, the concept of a clean wage goes hand in hand with good governance and transparency.
In a parliamentary reply to a question in April 2013, DPM Teo stated that for judicial and statutory appointment holders, the proposed gratuity plan is essentially of the same value as the pension and is taken into account in the overall salary levels when carrying out salary comparisons. It would therefore appear that there is a lack of consistency in the Government’s approach towards the concept of a clean wage, if indeed a gratuity is seen to replace a pension.
In principle, because of the competitive salaries already received by civil servants, I seek the Minister’s clarification about the current rationale behind paying certain civil servants a gratuity and why it would it not just be simpler and more consistent to have a clean wage.
Madam Speaker, I oppose the Bill.