Delivered in Parliament on 4 November 2020
Mr Speaker, sir, before I start, I would like to declare that I am a lawyer in private practice.
Bridging the justice gap
Mr Speaker, sir, the Chief Justice in his speech at the Opening of the Legal Year in 2020, suggested three principles ought to guide the redesign of our justice system. The first of the principles he spoke of was the principle of accessibility which he said (and I quote) “should be understood in terms of closing the “justice gap”, which is a metaphor for the problem of unequal access to justice” (unquote). He said there are three dimensions to this justice gap:
- a physical gap i.e. the physical distance between an individual and the institutions of justice;
- a resources gap which deters the individual from seeking legal recourse due to concerns over costs;
- a literacy gap which follows from lack of awareness about one’s legal rights and remedies.
He said that a justice system that seeks to minimise the level of injustice in society must necessarily be interested in closing each of these gaps, thereby enhancing and equalising access to justice.
The issue of resources gap has been much talked about and is a continuing work in progress. Despite recent Government efforts to increase access for civil legal aid through the Legal Aid Bureau, many still do not qualify. Despite the exemplary efforts of many volunteer lawyers under the CLAS scheme and the Law Society Pro Bono office, beyond the rendering of pro bono advice, many still cannot find someone to represent them in legal proceedings on pro bono basis or the quoted fees of other lawyers may be unaffordable. My colleague, the honourable Ms He Ting Ru has already touched on this point too.
The Chief Justice did not elaborate on the term “physical gap”. How an average Singaporean thinks of our judges is important. He or she must of course be learned in law and also in the area of specialization that he or she is known for. Beyond pure commercial law, and particularly in areas like criminal and family law, the ability of judges to understand and empathise with the different challenges faced by litigants of different socio- economic backgrounds is critical and can, in my view, bridge this physical gap.
Certain aspects of judges’ selection
For the rest of my speech, I will be talking about judges’ selection and training in the State Courts.
The honourable High Court Judge reviewing Parti Liyani’s appeal found that the trial judge in the State Courts was wrong in applying the legal and evidential burdens of proof. The case generated much attention. While in the interest of justice, it was right and good that the High Court has allowed the appeal in favour of Parti Liyani, we cannot always merely rely on appeals to High Court righting a wrong done in the lower court.
To this end, we should strive for even higher standards in all our courts and in particular, in the context of the State Court judges and magistrates, as they are after all, critical gatekeepers of justice. They need to be carefully chosen, have a strong and right sense of mission and have the training and disposition to carry the torch of justice for those whose lives have been entrusted to them.
On the issue of selection, the issue of age and maturity of our judicial officers in the State Courts has been raised in this house on at least two occasions. In 2010, during the debate for the Subordinate Courts Amendment Bill, my colleague, the Honourable Sylvia Lim had asked the then Senior Minister of State for Law, Professor Ho Peng Kee about the requirement that in order for a person to be appointed as a magistrate, one need only have held a relevant law degree for one year.
At that time, the powers of a Magistrate including powers of sentencing had already increased over the years. Professor Ho had, some years before, expressed similar concern about whether young Deputy Registrars and Magistrates would be able to dispense justice and apply the law appropriately without
(I quote the former SMS) “the wisdom that comes from experience in dealing with matters of the world”.
Having to defend the policy, in reply to the issues raised by Ms Lim, Professor Ho sought to assure the House that despite the low minimum requirements, the practice was to appoint judicial officers who exceeded the minimum threshold of 1 year.
In the current version of Section 10 of the State Courts Act1, there is now the provision at Section 10(2) requiring a magistrate to be a qualified person for not less than 3 years. However a person can still be appointed under Section 10(3) if the CJ deems that he is suitable for the appointment even though he has been qualified for between 1 to 3 years.
Notwithstanding previous assurances that past appointments have been made for persons who have exceeded the minimum threshold, is it now the time to review the minimum requirement of one or even 3 years under Section 10? Would it be prudent
1 10.—(1) The President may, on the recommendation of the Chief Justice, appoint any fit and proper person to be a Magistrate.
- No person shall be appointed to be or to act as a Magistrate unless he has been for not less than 3 years a qualified person as defined in section 2 of the Legal Profession Act .
- Notwithstanding subsection (2), a person may be appointed to be or to act as a Magistrate if —
- he has been for not less than one year a qualified person as defined in section 2 of the Legal Profession Act; and
- the Chief Justice, after having regard to the qualifications and experience of the person, is of the opinion that the person is suitable to be appointed as a Magistrate.
now to stipulate higher minimum seniority requirements for judicial officers, especially those handling criminal cases as magistrates and district judges? Perhaps to have someone more senior like 8 to 10 years of post-qualification experience.
In my view, it is extremely important to convince the public that judges understand the lives of ordinary people and people of different stratas of society. How should we work towards that? While I am not advocating that we re-introduce the system of jury here, we must understand why some countries continue to cling on to their jury systems because it is of fundamental importance to them that decisions on life and liberty are made by juries composed of members of the public from a cross section of the population.
Mr Speaker, sir, the issue of whether to have a separate dedicated judicial service in the State Courts has been raised in the past and more recently in the wake of Ms Parti Liyani’s case. Currently the Legal Service Commission chooses legal officers who may be posted from the Ministries or the Attorney- General’s Chambers into the State Court judiciary and then out again.
In 2014, the Prime Minister did announce a system of greater specialization among legal officers so that at the middle ranks, officers can be posted to either the legal or judicial branches and remain there for some years to hone their experience.
While this is a positive move, it still leaves the more junior officers open to postings in and out of the judicial branch. The postings could also be to and from the postings of DPP or senior DPP.
The law minister has shared his views earlier on this issue during the Ministerial Statement but I am still of the view that it may still be worthwhile for the proposed review to still consider whether we should have a more specialized or dedicated judicial track at the State Court level encompassing magistrates and district judges, and discontinuing inter services posting or rotation with other branches of the Legal Service, particularly with AGC.
This may be preferable to the current system to provide more distance between prosecutors and those working as magistrates and judges, for example, avoid having AGC colleagues, some of them being more senior colleagues, arguing cases before them, knowing that they may be posted
back AGC again. As the familiar administrative law saying goes: justice must not only be done, but must be seen to be done.
Up till now, Judicial Officers or AGC staff often regard themselves as working for “the Legal service”. It is perhaps time to discard this nomenclature and have a dedicated judicial service set apart from the rest of “the Legal Service”.
When state court judicial officers are subject to inter-services postings or rotation, I also wonder whether at the moment, sufficient time is given for any judicial officer due to be posted to clear his or her cases without compromising the justice and interest of the parties involved. At the onset when trial dates are fixed, frequently it may be difficult to dictate the actual length of hearing days required. Many litigants may require more trial days as the cross-examination may take more time than expected. What happens when a posting is due soon and the trial may possibly not be completed in time? Can or does a judicial officer seek a delay in his or posting in the interest of the justice of the litigants of the case? If this can be done, the proceedings can still continue fairly for all parties without any
pressure of time; cross-examination does not need to be rushed.
Enhancing judicial training
Spending more time as a judicial officer coupled with the right training which can be provided by institutions such as the Singapore Judicial College can help to mitigate against factors such as lacking life experience or lacking sufficient understanding of people from different socio-economic stratas of our society as well as any unwitting misunderstanding or prejudices.
Talking about training of judicial officers, it is good to know that training is already being increasingly prioritized. The Singapore Judicial College is a development in the right direction. Set up five years ago, it is reassuring to see a unified training champion for the Supreme and the State Courts. It conducts various programmes including an induction programme for newly appointed judges and judicial officers. In addition to the hard skills in law and administration, there are courses focused on enhancing the experience of the public, such as effective engagement of litigants who are unrepresented.
I also note from its annual report that the Judicial College has embarked on forthcoming research on Litigants in Person and Access to Justice in an Adversarial System, a topic which is of high importance.
That said, lawyers still observe lop-sidedness in cases where the accused person is unrepresented. For example, at sentencing hearings, a prosecutor could be arguing for a particular sentence and submit bundles of authorities for the judge’s consideration. The poor unrepresented accused person will not know how to react to the submission and frequently just ask for leniency. The unrepresented accused person has no clue of what he should expect in respect of the sentence he or she is likely to get except maybe some gratuitous information
fed to him by the IO. He can’t distinguish the authorities submitted by the prosecutor and won’t even be able to rebut the prosecutor if there is any mistake in applying the authorities to the facts of his case. This common example exemplifies both the resources gap and the literacy gap which the CJ has talked about. While working on improving access, we should also consider how we can enhance the ability of our judges to
reduce the effect of disadvantages faced by such unrepresented accused persons in their experiences in court.
Many of the accused persons who are unrepresented comes from the poorer and less educated strata of our society. These people rely on our judicial officers to mete out decisions and sentences which will not only be fair to them according to the alleged crimes they are charged for but also bearing in mind the handicap they may suffer from not having representation at the time of hearing. To this end, research and training should also include checking against any inadvertent prejudice against the poor or less educated, if that is not already done.
It has also been pointed out in an article entitled ‘Wrongful convictions in Singapore: A General Survey of Risk Factors’ (2010) Singapore Law Review by Chen Siyuan and Eunice Chua (under Singapore Law Review 28, at pages 98-122) that there has been reported cases where judges made wrong assumptions on witnesses’ abilities to recall facts and should be trained accordingly. A local case involving a previous Chief Justice was in fact cited.
Indeed, I would exhort the Singapore Judicial College to continue to enhance its training for judges in the state courts in the areas I have talked about which in my respectful view, will certainly help to reduce any physical gap, using the term as mentioned by the Chief Justice, and to further enhance our justice system.
Mr Speaker, sir, the Honourable Ms Sylvia Lim has called for a Constitutional Review by a Supreme Court judge and I humbly submit that the suggestions in my speech should be included in such a review to make our justice system even better. I support the motion.