In November 2020, the Workers’ Party moved a Motion in this House to call for a review of some aspects of the Singapore criminal justice system. This Motion was filed in the wake of the case involving Ms Parti Liyani, a domestic worker whose theft convictions had been overturned on appeal in the High Court. Though that case was the trigger for that debate, the Motion was filed on a wider basis, extending to how the criminal justice system operated against those who could not afford legal representation. It was notable that there was substantial agreement between the government and the Workers’ Party on the need for enhancements; however the government emphasised that it needed to decide on what specific changes to implement and how to pay for them. The fact that the government is tabling this Bill shows that it has squared that circle as far as enhancing criminal legal aid is concerned. This is a progressive move. My party colleague Ms He Ting Ru will speak more about this later.
This Bill is in my view overdue, but as they say, better late than never. In putting forward this Bill, the government is recognising that fair play is fundamental to justice, so fundamental that part of the annual national budget should rightly be set aside for this purpose. Nobody should quarrel with the principle behind this Bill. The Workers’ Party has over the years spoken about the importance of justice for all and legal aid in criminal cases. We strongly support this Bill.
Evolution regarding Criminal Legal Aid
I recall that in the past, the government did not want to fund criminal legal aid in non-capital cases, saying that there was a contradiction in it funding both the prosecution and the defence. It was the Law Society who stepped up to offer pro bono representation in non-capital cases through the Criminal Legal Aid Scheme (CLAS), on limited resources. CLAS was, in my view, the most morally uplifting project embarked on by the Law Society at the time, and those of us involved in the early days of it, in one way or another, look back with pride to see how far it has come from its humble beginnings. Over the years, the government evolved its position, and from around 2015, started providing funding to CLAS. This government support
has been critical to the sustainability and enhancement of CLAS. Today, there are many lawyers providing pro bono services under CLAS, conscious of their public duty and committed to obtaining the best outcome for their clients. That said, it is quite clear to me that the current CLAS scheme for criminal legal aid does not adequately cover cases of need. In my view, there are three main limiting factors – whether a case is one which is covered by the scheme or not, how poor one must be to qualify for aid (means test), and how strong one’s case needs to be (merits test). It would be important to understand how the Public Defenders scheme will widen the net to provide legal aid to more people.
Coverage, Means and Merits
First, on coverage of the PD scheme. It should be noted that only citizens and permanent residents will be covered. Although foreigners could well need legal aid, I accept this scoping, due to the need to watch the budget especially at this initial stage. The scheme also does not cover a list of offences in The Schedule to the Bill. Ten statutes are totally excluded as they relate to behaviours that should be deterred e.g. terrorist activities and gambling. There is also a partial exclusion under 36 Acts, if the accused is brought to court by way of a notice to attend court or a summons. For these partially excluded Acts, this will mean that the more serious offences where the accused is brought to court upon arrest or bail will still fall within
the PDO’s coverage for aid. I think this is a sensible compromise to strike. Going forward, this will mean, for instance, that persons facing more serious charges under the Road Traffic Act may be able to obtain criminal legal aid, which is currently totally excluded under the CLAS scheme.
Second: the means test. The Minister for Law had informed the House in April this year that while the current CLAS scheme was able to cover applicants up to the 25th income percentile, the PDO scheme would cover up to the 35th income percentile of resident households. It is good to note the move to cover about 10% more of the population. The Minister stated then that the per capita household income cut-off would be raised from $950 to $1,500. The Senior Parliamentary Secretary confirmed this earlier. This is a significant and inclusive change.
Third, the merits test. According to Clause 12 of the Bill, there will be two different baskets of cases to be assessed. The first basket are offences which are “prescribed” – where the Chief PD can decide whether the case has merits. The second basket involves offences which are not prescribed – in which case, the decision on whether the case has merit will not be made by the Chief PD alone but will be made by a board consisting of the Chief PD and at least 2 lawyers. It would appear that cases involving prescribed offences would be approved on a faster track, while those involving non-prescribed offences needed more consideration. Earlier, the Senior Parliamentary Secretary touched on this matter and, if I heard her correctly, said that more serious offences needed more consideration. What is the intention and rationale behind this differentiation, such that more serious offences need to pass a more rigorous test?
Powers of Public Defenders
On the issue of merits for aid, Clause 12(2) provides that the Chief PD could
consider factors such as whether the proceedings might involve the tracing,
interviewing or cross-examination of witnesses on behalf of the applicant. This raises an important issue regarding the powers of PDs. Could I ask what powers the Chief PD or other officers of the PDO would have to access government information to locate witnesses, or to compel their attendance for interviews? It is further provided in Clause 3(7) that every public defender who is not a public officer is deemed to be a public servant within the meaning of the Penal Code when carrying out his PD functions. What is the implication of this provision? Does it mean that offences such as furnishing false information to public servants will apply, such that
witnesses who lie to PDs may be prosecuted under the Penal Code? It would seem to be somewhat anomalous if that were the case, since private defence counsel have no such powers when people lie to them. Some clarification on this would be necessary.
Minister’s Residual Power to Order Aid
Despite the requirements to qualify for aid set out in the Bill, Clause 12(7) enables the Minister to direct that aid be given even in cases where the applicant does not satisfy the requirements. This would be where the Minister considers it “in the interests of justice” that aid be given, or where the applicant does not satisfy the means test but it is still “just and proper” to grant aid. Is the intention to use this provision only in exceptional situations? Could the Ministry confirm that the Minister’s residual power under Clause 12(7) does not extend to providing aid for excluded offences?
Broader Clarifications
Before I conclude, I would just like to seek two broader clarifications please:
First, in April I had asked the Minister whether the scheme for legal aid in capital cases (LASCO), administered by the Supreme Court, would be brought within the PDO scheme. The Minister had then replied that it would be considered but clearly today the answer is no. Could MinLaw inform the House whether this matter was broached with the Supreme Court and why the decision was taken not to include capital cases under the PDO?
Secondly, would MinLaw be able to explain when a person needing legal
representation should go to CLAS and when to PDO, since there will be some overlap in coverage?
Conclusion
This Bill represents an important milestone for Singapore’s criminal justice
system. The PD scheme has the potential to go some way towards addressing the imbalance of power and resources between the state prosecution and an accused person. For that alone, I welcome this development.