(Delivered on 28 Feb 2020)
Role of Attorney-General – Sylvia Lim
Chairman, I file this cut to suggest a review of the role of the Attorney-General, with a view to making our legal system even more robust.
I would like to suggest that the government consider a change in the Constitution, to split the current dual role of the Attorney-General into two separate offices, to be held by different office-holders. Let me explain why this would improve the current arrangements.
Currently, under Article 35 of the Constitution, the AG is entrusted with two roles that require him to behave quite differently. On the one hand, under Article 35(7), he is the chief legal advisor to the government. It is provided that the AG is to “advise the Government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him… and to discharge the functions conferred on him”. In this advisory role, the government is his client, and it is the government who will decide what should be done. The AG may have to take certain courses of action even if they go against his own advice.
On the other hand, he has a pivotal public role in criminal matters. Article 35(8) provides that the AG is the Public Prosecutor and vested with power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. The extent of this power, and the responsibility associated with it, cannot be over-stated. The AG has the responsibility to decide on criminal prosecutions on behalf of the State – who should be charged who should be let off with a warning, who should have their charges reduced or compounded, and so on. He is arguably more powerful than a High Court judge, as his exercise of discretion is done in private and is un-appealable. As PP, the AG is expected to be fiercely independent and have no hesitation to bring charges against the most powerful office-holders if the circumstances warrant. The rule of law, which we hold so dear, depends on it.
In order to further strengthen the system and shore up the independence of the Public Prosecutor, I ask the government to consider splitting the two roles I have described, to reside in two different offices, so that the person who is Public Prosecutor 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.
From my understanding, the dual role of the Attorney-General was drafted into the Constitution at a time when our legal manpower was more limited. Today, we have many senior legal minds. Already within the Attorney-General’s Chambers organisation, besides the Attorney-General himself, we have two Deputy Attorneys-General and a Solicitor General. It would appear that we can assign the role of Public Prosecutor to the Attorney-General and the role of government’s legal advisor to one of the Deputy Attorneys-General or to the Solicitor-General.
In addition, to further buttress the standing of the Attorney-General, he should enjoy some security of tenure. The Constitution originally envisaged the AG to hold office until 60 years of age, and was later amended to allow AGs to hold office for a specific period. In the recent past, some AGs had held office for short terms of two to three years. I suggest that the government introduce a minimum term of appointment to enable the AG to enjoy some security. As to what period is suitable, we could take reference from the period currently set for the appointment for the Auditor-General, which under the Constitution is a 6 year term.