By MP for Aljunied GRC, Sylvia Lim
[Delivered in Parliament on 4 Nov 2014]
I will focus my speech on the amendments relating to the Supreme Court.
These amendments appear innocuous, but in fact seriously impact some fundamental aspects of judicial power and judicial independence in Singapore.
Our Westminster system of governance separates state power into three functional and sovereign domains – the Executive, the Legislature and the Judiciary. And as the Constitution is the supreme law of the land, the final interpreters of the Constitution are the courts. To ensure that they decide without fear or favour, judicial independence is ensured through the security of tenure and remuneration.
Article 98 of the Constitution provides that a Judge shall hold office till he reaches 65 years of age, and he cannot be removed from office except under very limited circumstances of misbehaviour or ill-health. Neither can a Judge’s remuneration and other terms of office be altered to his disadvantage after his appointment. These safeguards are designed to ensure neither of the other two branches of government can influence our judges.
Even before this Bill came before the House, the Constitution already had two judicial offices that are exceptions in this sense – contract judges and Judicial Commissioners. The current Article 94(3) provides for the appointment of Chief Justice and other judges beyond their retirement age of 65, while Article 94(4) provides for the appointment of Judicial Commissioners. More worrying is Article 94(5) which empowers the President to ‘appoint a person qualified for appointment as a Judge of the Supreme Court to be a Judicial Commissioner to hear and determine a specified case only.’ These provisions leave Judges and Judicial Commissioners open to possible interference by the other two branches of government.
Thankfully, this has not happened, but there is no guarantee that it will never happen. We should remove this risk; instead, the present Bill re-organises and re-enacts these problematic provisions, and even creates the new term of “Senior Judges” for Judges appointed on contracts beyond the retirement age.
The Workers’ Party is opposed to such temporary judges. These judges are appointed for short terms, and whether they get their contracts renewed would depend on whether the renewal is recommended by the Prime Minister and concurred with by the President. The uncertainty of re-appointment also carries a risk that short-term judges would be wary of making decisions that put the government or ruling party politicians in bad light, and might make ‘safe’ decisions so as not to jeopardise their re-appointment. I emphasise that I am not saying that this has in fact happened, nor am I impugning the integrity of the President or Prime Minister. But if we are to improve the design of our constitutional institutions for the long term, these provisions do not help instil the highest public confidence in the independence of the courts.
One aspect of the Bill that we have no issue with is the creation of International Judges. Though these are also short-term appointments, the International Judges will sit only in the new Singapore International Commercial Court (proposed Section 5A, Supreme Court of Judicature Act (SCJA)). Their expertise may be necessary to boost SICC’s standing and to encourage parties overseas to submit their disputes to the SICC for decision. As these International Judges will only hear disputes of an international commercial nature (proposed Section 18D, SCJA), the risk of such Judges worrying about not being re-appointed due to the judgments they deliver is, in my view, negligible.
However, the continued policy of having Singaporean Judges on short terms, or even to hear particular cases, is not acceptable to us.
However, one issue that Singapore has faced is that many of our Judges upon reaching 65 years still have much to contribute on the Bench. They are a wasted resource if forced to retire at age 65. To be fair, 65 years as a compulsory retirement for a judge is very early, considering that Singaporeans are living much longer and we are already encouraging people in general to work till 67. In other countries, such as the United Kingdom and Australia, judges retire at age 70; in the United States Supreme Court, judges are appointed for life, and many of them are still issuing very lucid judgments well into their 80s. It is timely to re-look at whether the Constitution should be amended to postpone the retirement age of our Supreme Court judges from the current 65 years to say, 70 years, so that the country can continue to benefit from their rich experience and wisdom.
Madam, as far as the other aspects of the Bill are concerned, my colleague Mr Pritam Singh has sought some clarifications about the post of Deputy Attorney General and the gratuity scheme for certain constitutional offices. I wish to reiterate again that we have no objections to the set up of the Singapore International Commercial Court and to the creation of the post of International Judges as proposed in the Bill.
However, we have grave concerns and object to the re-enactment and further entrenchment of Singapore Judges of temporary tenure, be they Judicial Commissioners, Senior Judges or the Chief Justice. Because of these concerns which are fundamental in nature, the Workers’ Party opposes the Constitution Amendment Bill.