On Public Defenders Office—Speech by He Ting Ru

Mr Deputy Speaker

While speaking during the Private Member’s Motion on ‘Justice For All’ raised by my colleague Ms Sylvia Lim in November 2020, I talked about the importance of having the House of Justice possessing strong pillars to ensure that just outcomes are delivered for those guilty of crimes, but also for those who are innocent. Like many other countries, we continue to work to ensure that accused persons from vulnerable backgrounds do not being further disadvantaged, particularly because they cannot afford to be legally represented in the criminal justice system.

It is why today’s Bill for the creation of the Public Defender’s Office (the PDO) is a cornerstone in the development of our criminal justice system, and its importance cannot be overstated. The idea of a Public Defender in some form or another is also one which has existed in many other jurisdictions for many years. While I agree that we must exercise caution in ensuring that our own PDO does not fall into a situation seen in some jurisdictions where clients abuse the system at both the expense of the taxpayer and adversely affect the credibility of the office, we also must not forget to take on board where public defence systems do work to bring about a stronger, more robust, and credible criminal justice system, and to take on board these positive lessons.

It is in this spirit that I would like to raise some clarifications and questions about the Bill before us.

First, I note that Clause 4(5) of the Bill states that a solicitor has a duty to disclose information which may otherwise be subject to client-attorney privilege to the Chief Public Defender (the CPD) to enable the CPD to perform its functions under the Act. There is concern that although there are reasons for this exemption, this ultimately compromises the client-attorney relationship, or would be seen to be compromised by the clients, who may then be reticent in providing full and frank disclosure to their solicitor. While the Bill does make it clear about the circumstances under which such disclosure may occur – namely when deciding whether to refuse an application for criminal defence aid, to vary or cancel a Grant of Aid, or to determine whether there are merits to an application for criminal defence aid.

Would it be possible to have more explicit guidelines as to what types of privileged information may be disclosable to the CPD, and to ensure that the clients either consent to such disclosure, or know exactly what may be disclosed and under what circumstances such disclosure will take place? Perhaps to allay concerns, it could also be made explicit that any such information that is necessary to be disclosed will remain strictly confidential and not disclosed to any other third parties?

Second, on the scope of coverage. Clause 12 (1) (b) of the Bill states that only Singapore Citizens and Permanent Residents are eligible to apply to the PDO. As cases such as Parti Liyani’s have shown, a sizeable proportion of the more vulnerable parts of our society include Work Pass holders. These individuals continue to have to rely on the goodwill of lawyers to act pro bono if they do not have the financial resources to engage a criminal defence lawyer. While we understand that at this early stage of setting up the PDO, it would be prudent to limit its scope until the exact expenditure is known, would the Government be considering atsome point expanding coverage to long-term residents, albeit subject to more stringent criteria?

Next, moving on to the decisions themselves, relating to whether or not an applicant is granted access to aid under the PDO. The Bill provides that the CPD has the power to issue a Grant of Aid to an applicant provided he is satisfied that they meet the requirements as outlined in Clause 12. The CPD’s decision would be final, except in circumstances under Clause 12(7) where the Minister may override the decision. This approach is in contrast against the case of solicitors who were excluded or removed from a panel by the CPD. In the event a solicitor is aggrieved by the CPD’s decision, they may apply to the General Division of the High Court under Clause 5(2) to appeal against such a decision.

While there may be reasons for this different approach, we should consider having a formal appeals mechanism for an accused person to appeal against the CPD’s decision not to grant them aid for greater certainty and to also enhance public confidence in the office. This could take the form of an appeals panel of solicitors to review the decision.

Moving on to a more general point about the criminal legal landscape in general, and the impact that the PDO would have on it. Part of the concern about the formation of the PDO was that this would adversely affect the livelihoods of current criminal defence practitioners. I do not believe this should be the case however, as the PDO has been primarily designed to expand legal representation to accused persons who do not currently have the means to appoint counsel to represent them to minimise the possibility of this happening.

What may however warrant more attention is the concern raised by the criminal bar in the past, that they sometimes feel like they are battling a perception that criminal work plays second fiddle to civil and commercial matters, and that they struggle to attract lawyers into their field. While the Ministry has previously stated that the PDO hopes to recruit across a mixture of backgrounds, what are the specific plans to address the concerns raised by the criminal bar, and could the Minister elaborate on what will be done to ensure that talented young and mid-career lawyers would consider Public Defence – and even private criminal defence – work as their first choice?

Are there plans for officers in the legal service to be rotated into the PDO to allow greater exposure to the work that Public Defence entails? If so, what safeguards would there be in place to ensure that any information obtained by a Public Defender is safeguarded from unauthorised use or disclosure if that officer is subsequently re-assigned or rotated into another office, such as that of the Public Prosecutor’s Office? After all, Public Prosecutors are responsible for bringing cases against accused persons, and thus represent the other side of the coin in the criminal justice system.

To round up, I would like to touch on the important principle of justice being kept accessible and comprehensible. This was a key point of our Motion raised in November 2020, and all of us would agree that in order to maintain confidence in our judicial system, justice must be done, and also must be seen to be done. There will be questions from the public about whether public funds should be expended to fund a Public Defender’s office, especially in the case where the accused person is in fact guilty of a crime. This is where public education is crucial in helping the public to understand the important role played by defence counsel and byextension, Public Defenders. After all, defence lawyers are there to, amongst others, ensure that an accused person is innocent until proven guilty, understands the charges being brought against him, and safeguards the due process of law while an accused person’s case is being brought before the courts.

It is also helpful to note at this point that Public Defenders are officers of the court. They are also public officers – pursuant to Clause 3 of the Bill. This means that they both have duties to the court, and also to the public. Public Officers are expected to uphold values of integrity, service and excellence, and are governed by a Code of Conduct. Ensuring that the public are aware of these duties and codes which Public Defenders are bound by, will be key in convincing the public about the necessity of the PDO. The PDO must thus ensure that its conduct is exemplary, standing up to intense scrutiny, and that it provides an accused person with a proper defence.

While I have touched on some areas of concern and asked for some clarifications in my speech today, it does not take away that the formation of the PDO by the Ministry is a positive development. A strong PDO would only further aid in ensuring that a robust House of Justice continues to endure.

I support the Bill. Thank you.