Delivered in Parliament on 4 November 2020
Mr Speaker
议长先生，
I am honoured to give my support to the motion raised by my colleague Ms Sylvia Lim.
我很荣幸能够在此支持我的同事林瑞莲女士所提呈的议案。
The topic of our motion today is ‘Justice for All’. Within the criminal justice context, we often take this to mean that the guilty must be caught, get sentenced to and serve their punishment. Of course this is an important outcome that our justice system must strive towards.
这个议案的主题是“司法途径众人享有”。在刑事司法领域方面，我们普遍的认知是将罪犯绳之于法，并依法处置。这当然是我们的司法体系所必须争取的重要目标和成果。
The House of Justice For All has four pillars:
一个众人能享有司法途径的屋檐下必须有 4 根顶梁柱：
First, the police, investigative process and the system;
其一，警方，调查机构按程序为案件进行调查；
Second, the Attorney-General’s Chambers, in the form of public prosecutors to
review a case;
其二，总检查署，检察官审核案件；
Third, judges who set the standard of evidence required; and
其三，法庭的法官树立定罪的证据标准；
Fourth, the Law Society, in the form of defence lawyers, who take on criminal cases to ensure that the presiding judge does not just listen to one side of a story, just like Parliament making sure there are different views on specific issues, to ensure a more robust outcome.
其四，律师公会的辩护律师代表被告，确保法院里的法官不仅仅只听到单方面的陈述。这好比国会通过众多的观点来辩论课题的途径，以确保一个更扎实的结果。
When these four pillars function well and are strong, they can withstand the load of the House of Justice. How big and strong the House of Justice can be to accommodate the notion of Justice For All, depends entirely on the strength of each of the pillars. The bigger the house, the wider the roof, and therefore the strong the pillars must be.
若这 4 根顶梁柱能够同时良好运作，就能够支撑起司法体系这栋大楼。至于这栋大楼的屋檐下又能否容纳“司法途径众人享有“ 这个概念，这也全靠柱子的实力了。楼房越大，屋檐更宽，柱子也必须更坚实。
Recent acquittals such as the Parti Liyani case have illustrated why it is essential for the House of Justice to have strong pillars, to ensure it is able to also deliver just outcomes for those who are innocent.
近期法庭颁发的无罪裁决， 如印尼籍女佣莉雅妮一案，突出了司法大楼需有坚硬柱子的关键性。只有扎实的法律体系才能确保无辜的人得到公平的待遇。
As my colleague the member for Aljunied pointed out earlier, Singapore’s system is generally well regarded, both domestically and internationally, and we do not mean to take away anything from the hard work being done by the judges, police officers and prosecutors who ensure that the public interest is defended and protected. And to repeat the point made by Ms Lim, the Workers’ Party is not suggesting that the system is broken or ineffective, but that we believe that more attention must be paid to ensure fairness, access and independence.
就如我同事林瑞莲女士之前所说，新加坡的司法体系在国内国外享有好评， 这是我国众多法官，警察，检察官在维护公共利益的领域里做出了极大的 贡献。我们没有任何轻视他们多年努力的意向；我们也在此重申工人党没 有影射司法体系残缺无效的任何意图。不过，我们依然坚决认为我们必须 确保司法体系能够在一个公平，无障碍、独立的方向继续发展。
We must therefore reduce any barriers to fair access to ensure that the next Parti Liyani will not have quite as daunting a task to prove her case.
我们必须为使用司法途径的大众披云雾，睹青天，以确保下一个莉雅妮可以在一条更通畅的道路上争取正义。
This is especially important for those from vulnerable or disadvantaged backgrounds. The risk of wrongful conviction is especially challenging as they tend to be unrepresented in front of judges. Engaging counsel requires resources they do not have, and some may feel overwhelmed in the face of the charges being brought against them, and simply plead guilty in order to bring the matter to a close. To make matters worse, even if the accused person manages to gain access to legal representation, they may often lack the financial means to post bail, and often end up facing further disruption to their families and stigmatisation due to being stuck in remand.
这对新加坡的弱势群体特别重要。在没有律师代表的情况下，我国弱势群体面对错误定罪的风险和挑战。他们也许没有资源聘请律师，也许缺乏法律体系的知识，面临控状时慌张、不知所措，以认罪的方式解决所面对的法律困境。更为雪上加霜的是，就算他们有能力诉诸法律，也可能因为缺乏提交保释金的经济能力而被羁押候审，因此失去工作，受朋友和家人排斥。
Additionally, defence lawyers often face an unequal playing field – they do not have similar powers to the prosecution to seize evidence or compel witnesses to give statements.
此外，辩护律师面临的也是个不平坦、逆水行舟的处境。与检察官不同， 辩护律师既没有权力扣押证据也没有权力迫使证人提交证词。
If we do not put in adequate measures to address these concerns, such as the proposed review of police investigative processes and building in balances on the power of the public prosecutor’s office to decide whether to proceed to charge the accused in court, we could end up having a justice system that is oppressive for the poor and disadvantaged. It is with this in mind that Ms Lim has spoken at length about suggestions such as allowing composition fines to be paid by instalments, considering non-monetary bail conditions, and allowing written police statements to be made in our other official languages”: Malay, Chinese and Tamil.
只有推行足够的改善措施，例如建设平衡检察官提控的决定权，才能确保我国的司法体系能够更完善的保护生活在我国的弱势群体；才能避免我们的司法制度变成压制弱势群体和贫穷人民的制度。我们所提的改善方案包括审核警方调查过程，以及立法监督总检察署起诉被告人的权力。林议员之前也提到用分期贷款的方式偿还罚款款项，设立非金钱保释条件，并且允许被告用我国其他官方语言：马来语，华语，坦米尔语为警方提供书面供词。
All of these would go some way to ensure that individuals from vulnerable
backgrounds who don’t have the resources, have a fair, balanced shot at justice.
这一系列的措施可以确保资源不足的弱势人士仍然能够有同样的机会在司法体系里讨个公道。
It is careful balancing act: we want law enforcement and judicial officers to have the right amount of power to ensure guilty criminals do not walk away scot-free, but not so much power that the innocent find it extremely difficult to fend off wrongful accusations or charges. However, we should at the same time ask ourselves: are we, as a society, comfortable with having a system which leans heavily on the side of caution, risking wrongfully convicting innocent persons of crimes they did not commit, to ensure that we do not let any guilty persons walk away free?
在争取公道的途径中，我们也不能忽略司法体系须要有平衡：一方面，司法机构及法院必须有足够的权力执法，确保犯罪人士不会逍遥法外。另一方面，我们也要确保无辜人士有伸冤的一席之地。同时，我们需要自我检讨，处在这个社会中的我们，是否觉得安逸和接受一个倾向于谨慎的司法体系，不会错判，但也不会让犯罪的人逍遥法外？
After all, if the roof of the House of Justice is too narrow, we risk a situation where individuals start finding that the cost of entering the House is too high, or they are unable to squeeze into it, we may end up with a fragmented society.
我们需要谨慎的意识到，司法体系大楼的屋檐若建得太狭窄，要进入的人不免会觉得门槛太高，或甚至挤不进去。久而久之，会扩大社会的分歧。
Justice and equality are the fundamental tenets of our national pledge upon which our leaders promise to the people to build a nation based on them. It is therefore paramount that we keep strengthening the pillars of the House of Justice and expand the roof of the house until all citizens have a roof of justice over them. Justice For All is where justice is not only served, but seen to be served, and is a foundation upon which our nation’s democracy should be built.
“公正” 与“平等” 是新加坡建国信约的基础理念，是我国领袖承诺为国民打造的社会基石。我们必须不断地持续巩固筑起司法体系大楼的这 4 根顶梁柱，并继续扩展这栋大楼的屋檐，以确保在我国生活的人都能够得到法律的覆盖，庇护。只有在公义得以彰显，而且公众亲眼见到公义明显伸张的情况下才称得上司法途径众人享有。这是我国建设民主制度的基石！
Mr Speaker, in English.
Access to Legal Representation and Legal Aid
As I have mentioned earlier, one of the pillars of the House of Justice represents defence counsel, who represent persons who are accused of crimes. These lawyers are there to ensure that the accused person is aware of their rights and obligations under the criminal justice system, and to act as their advocates in their cases before the judiciary.
Given the crucial role of defence counsel, it is disquieting to see that a significant proportion of accused persons still appear before the courts unrepresented, with approximately 40% of accused persons who claim trial appearing unrepresented at the State Courts during the pretrial stages. It is possible that
this figure is significantly higher if you include accused persons who plead guilty. Studies – some conducted within the Singapore system – have also shown that unrepresented persons have a significantly greater chance of being convicted, and are also more likely to receive more severe sentences upon conviction, raising the risk of miscarriages of justice occurring. As a concrete example, what would the chances be that Parti Liyani or Portela Vilma Jimenez would have secured an acquittal upon appeal if they had not been represented by a defence lawyer?
Some of the more common reasons for accused persons appearing unrepresented include lack of funds, and also awareness. Many of us are familiar with residents stating that they either cannot afford a lawyer, or that they do not know where to begin to find one for themselves.
One of the ways in which we should improve access to justice for all, would be to enhance existing legal aid. The right to consult and be defended by a legal practitioner of choice is a fundamental liberty found in Article 9(3) of our Constitution. Can we be said to be taking this right seriously if a significant number of individuals who face criminal proceedings are unrepresented?
Presently, only those charged with capital offences are guaranteed to have legal counsel appointed in the form of the Legal Aid Scheme for Capital Offences if they do not have means to engage their own lawyers. There is no means test to pass or eligibility criteria to satisfy, and the scheme applies to all accused persons, regardless of nationality.
For non-capital offences, the Criminal Legal Aid Scheme (CLAS) administered by the Law Society of Singapore and also funded by the Ministry of Law provides that accused persons with a disposable income of not more than $10,000 per annum and a disposable capital of not more than $10,000 may be granted legal aid, subject to an additional merits test. Foreigners too can apply for this scheme.
Finally, the Ad Hoc Pro Bono Referral Scheme administered by the Law Society of Singapore offers legal representation for persons with exceptional circumstances who do not meet the criteria for existing legal aid schemes but are nonetheless in urgent need, may apply for it.
Yet, it appears that the schemes are still limited in their reach, as can be seen by the large number of unrepresented persons, and such pro bono legal representation still largely relies on the goodwill of lawyers. Additionally, the rights to be allowed to consulted and be defended by a legal practitioner of choice in Article 9(3) of our Constitution has been qualified by case law such as Jasbir Singh v Public Prosecutor, a 1994 case of the Court of Appeal that an arrested person is only entitled to consult defence counsel a “reasonable time” after arrest. The consequences of this is that accused persons can be held without access to counsel when police investigations are ongoing.
This is contrasted against other countries such as New Zealand and Denmark. In New Zealand, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges. The state is also obliged to provide legal aid to persons with intellectual and mental disabilities, persons who face a potential prison sentence of 6 months or more, and persons who meet a financial threshold. The
legal aid scheme also does not have a set income level in determining the means test, but instead adopts a flexible approach by considering various factors such as a person’s gross income for the past 12 months, together with their disposable capital.
In Denmark, the police have a duty to guide an accused person on their option to have defence counsel appointed when provisionally charged in a criminal case, and in a number of cases, the court may appoint a public defence counsel for the accused person. As a general rule, defence counsel must be appointed in all criminal cases, unless the case is minor, and the cost of appointing public defence counsel is initially paid out of public funds, with such costs to be recovered only upon conviction.
Given all this, perhaps it is now time for us to enact the provisions of the original Legal Aid & Advice Ordinance, which were first introduced after David Marshall in 1955 called for a statutory requirement for the provision of legal aid – including for criminal matters – to the indigent, for everyone in Singapore to have equal access to the justice system, rather than rely on having these resources provided on a voluntary basis by the profession.
Apart from that, the review we are calling for should also consider automatically providing legal aid to certain groups, such as to all individuals charged with serious non-capital offences carrying long-term imprisonment sentences and do not qualify for CLAS, or, as in the case of Canada, where legal aid is mandatory for all youth offenders.
The review should also look into how we can ensure that vulnerable segments of society are informed of their rights and where to seek legal aid. It should also look into considering amendments to the Criminal Procedure Code and whether there should be a fixed time within which an accused person is permitted access to a lawyer.
Finally on this topic, I am happy that the law minister stated that we are seriously considering setting up a publicly funded Public Defender’s Office for all criminal matters, which takes on defence counsel work for accused persons throughout a criminal matter. We can explore having a system of rostering state funded police station or court duty lawyers, enabling a person arrested on suspicion of a criminal offence to consult with a lawyer after arrest, or allow an accused person to be represented by a lawyer at a court on their first appearance if they do not have, or have not been able to contact, their own lawyer.
Statutory Compensation for Miscarriages of Justice
The final topic I would like to speak on today, would be in relation to the statutory compensation for miscarriages of justice. The member for Aljunied has already spoken about compensation for victims of crimes. However, I believe the review we are calling for should also look into whether there is scope to bolster the current compensation scheme that we have for accused persons who have been acquitted.
Currently, Section 359(3) of the Criminal Procedure Code allows for the acquitted person to be compensated a sum not exceeding $10,000, provided that the court is satisfied that the prosecution was frivolous or vexatious. This qualifier does not account for how an accused person still suffers emotionally
from having to go through a trial where they stand accused of a crime, and that they may also suffer financial losses or loss of income while the charge is hanging over their heads, even if the prosecution was taken out in good faith. Genuine mistakes do happen, and given that cases can last a long time, such as the case of Chukwudi being a recent one where the accused was in remand for 9 long years after his arrest for drug trafficking.
This contrasts against the schemes in other jurisdictions such as the United Kingdom, where Section 133 of the Criminal Justice Act 1998 states that the state shall pay compensation for the miscarriage of justice to the person who has been convicted, suffered punishment, and subsequently had his conviction reserved or pardoned on the grounds of a newly discovered fact that shows that there was a miscarriage of justice.
The legislation is very specific about the circumstances which make such persons eligible for compensation, and the amount of compensation depends on the seriousness of the offence of which the person was convicted or accused, the severity of the punishment suffered, the conduct of the investigation and prosecution of the offence, and any other convictions of the person.
I realise that this is a complex issue which requires a balance in ensuring that genuine victims of miscarriages of justice are compensated, against being so generous as to possibly introduce a chill factor in carrying out prosecutions that may hamper the efficient administration of justice for crimes committed. However, note that in the UK, there were only 14 successful cases between 2010 and 2019 out of a total of 398 applications. Be that as it may, serious consideration of our existing scheme is still warranted, to ensure that wrongly
convicted persons may be adequately compensated in what is after all a serious deprivation both financially and to their personal liberty.
Mr Speaker, in conclusion, while the House of Justice and its four pillars may be strong today, it does not mean we stop looking for ways to continually strengthen each pillar, to ensure that the House remains strong and able to provide shelter to all despite any storms or subsistence that may batter away at it.
Mr Speaker, I support the Motion.