Delivered in Parliament on 14 September 2021
Introduction
Mr Speaker, Sir, the Courts (Civil and Criminal Justice) Reform Bill proposes amendments to several statutes.
The Workers’ Party supports the Bill and the majority of the proposed amendments, such as the ones related to supporting the digital transformation of the Judiciary, the simplification of court terminology, civil justice reforms and empowerment of the High Court to grant interim relief in aid of foreign court proceedings.
In addition to these however, there are proposed amendments to the Attorney-General (Additional Functions) Act. I seek clarifications on Part 4 of the proposed Bill. In Minlaw’s factsheet on the technical state that the objective of the Bill is to, I quote, “clarify the scope of the Attorney-General’s right to intervene.” Unquote. I will first summarise the proposed amendments in Part 4, then discuss the current position in Singapore law, and finally briefly compare Singapore’s position with those in other common law countries.
The proposed amendments
First, the proposed amendments. The Bill proposes a statutory framework for the Attorney-General (AG) to intervene in civil court proceedings where the AG is of the opinion that a question of public interest has arisen and the AG is of the opinion that it is necessary to place information or make submissions before the court.
A critical element of the proposed amendments is that the court is not to examine the merits of the AG’s grounds for intervention – essentially, the public interest grounds – before granting permission. The court is only to look at whether the grounds for intervention are adequately set out in the supporting affidavit.
So, although the proposed amendments say that the AG must apply for permission to intervene, in reality, there would be very little room for a court to deny such an application.
If the existing parties to the proceedings disagree with the AG’s intervention, the proposed amendments place the onus on those existing parties to apply to set aside the permission to intervene after it has been granted to the AG.
But while the court may consider matters such as the stage the proceedings have reached and prejudice to the parties, yet again, the court cannot examine the merits of the AG’s grounds as to the public interest the AG is protecting. This onus placed on the parties reverses the usual order of things in court and the common law position on the AG’s right to intervene where it is the party who wants something who should apply for and justify it.
The changes proposed by this Bill are extended to all civil proceedings. The proposed clause 4A(3) allows the AG to intervene in any proceedings, and I emphasise the word ‘any’, that are not criminal proceedings, and are proceedings to which the AG is not a party or representing any party. Clause 4A(4) spells out that the AG may intervene in proceedings such as judicial reviews, any civil proceedings, family proceedings or quasi-criminal proceedings, appeals, and proceedings before judges under the Legal Profession Act and the Medical Registration Act, although clause 4A(4) is careful to point out that this list does not limit subsection (3) which as I have said allows intervention in any proceedings.
Mr Speaker, the Workers’ Party has no issue with the established position that it is the AG who is the guardian of the public interest in matters where there is a public interest component to a civil dispute or criminal matter. However, in a private law dispute, the Bill before us today would allow the AG to intervene with the Courts having no scope to assess the merits of the AG’s submission as to what public interest the AG is protecting and in the event an application is made to set aside the order granting permission for the AG to intervene. Can the Minister confirm that these amendments effectively represent a significant shift to the common law position on the AG’s right to intervene.
There is already a process under common law for the AG to apply to intervene and for the courts to consider the merits of the AG’s application. It is a well-established procedure and there is no case law in Singapore to suggest that the AG is fettered from intervening in the public interest. Quite simply, the current intervention process under the common law appears to work well.
Mr Speaker, Sir, to give this House the context of the changes let me talk about the AG’s interventions under current Singapore law and AG interventions in other common law jurisdictions.
Singapore’s current position
In Singapore, the AG may currently intervene through the authority of legislation or via common law.
First, the AG has the right to intervene where a statutory right is given.
For example, section 46 of the Charities Act entitles the AG to be heard in appeals to the High Court against decisions of the Commissioner of Charities. Other statutes that give the AG the right to intervene in specific situations are the Industrial Relations Act and the Women’s Charter.
Second, the AG may also intervene at common law as I intimated earlier.
This process can be seen in action in the cases of Deepak Sharma v Law Society of Singapore and ARW v Comptroller of Income Tax.
In the ARW case, the High Court judge stated in his judgment in 2017 that an intervener must establish his standing. He said that in public law matters, the standing of the AG to intervene is not usually in question, but that in a civil suit based on private law rights, the AG’s role is not immediately apparent and must be properly established.
From what the judge said, it does seem clear that conceptually at least, a distinction is currently made between matters of public law and private law.
In matters of private law, such as in Deepak Sharma and ARW, the AG currently has to justify his application to intervene and the court decides on the merits of the application.
The Government now seeks to replace the courts function of deciding on the merits of an application to intervene with the proposed amendments to the Attorney-General (Additional Functions) Act that are before this House.
The position in other common law countries
Let me move on to the positions in a few other common law countries.
In Australia, at common law, the AG has the right to intervene in cases affecting the prerogatives of the Crown. This right has been extended by statute to cases involving, for example, the interpretation of the Constitution and the Migration Act. For other types of cases, the Australian AG can seek leave from the court to intervene.
In New Zealand, the position is similar. The AG has the right to intervene in proceedings affecting the Crown’s rights, property or profits. Otherwise, the AG must seek leave from the court to intervene in other cases.
In Canada, the AG can intervene in constitutional matters without obtaining leave, but on non-constitutional matters, the AG must apply for leave.
These positions are broadly similar to Singapore’s current position. A distinction is drawn between public law cases and private law cases, even those private law cases that may involve the public interest.
Questions for the Government
Mr Speaker sir, the Government needs to clarify the basis of the proposed amendments in Part 4, both because there is already a common-law procedure in place and the AG’s right to intervene on matters of public and even private law has not been questioned by the judiciary.
More specifically, I would also ask the Minister the following questions:
1. What triggered these proposed amendments? Have there been civil cases in Singapore recently that the Government wishes it could have intervened in without having the court examine the merits of the grounds for the Attorney-General’s opinion as to the public interest, under the proposed amendments?
2. Are there possible cases (which have not occurred in the past) which the Government is preparing for as a contingency? If so, what are these possible scenarios?
3. More generally, and as an extension of the above two questions: are there new areas of public interest that have hitherto not come up which the Government is trying to protect?
4. How activist is the AG looking to be in applying these proposed amendments?
And finally, if the answers to the above questions do not adequately answer this,
5. Why does the current procedure, which is well accepted and widely practiced in common law countries, have to be changed?
Thank you Mr Speaker.