Second Reading Speech by Second Minister for Law, Mr Edwin Tong, on the Constitution of the Republic of Singapore (Amendment) Bill 2021 and Judicial Service (Miscellaneous Amendments) Bill
03 Nov 2021 Posted in Parliamentary speeches and responses
- Mr Speaker, I beg to move, “That the Bill be now read a second time”.
- Sir, this Bill is related to the next Bill on the Order Paper, the Judicial Service (Miscellaneous Amendments) Bill, which will make consequential changes to various Acts arising from the amendments to the Constitution.
- Sir, may I have your permission for the debate on both Bills to take place now. There is substantial overlap to both. Members can raise questions or express their views on both Bills during this debate. We would still have the formal Second Reading of the Judicial Service (Miscellaneous Amendments) Bill, to ensure that the necessary procedural requirements are dealt with.
- Thank you, Sir.
Sir, this Bill makes several amendments to the Constitution to restructure the Singapore Legal Service. In essence, the Bill will:
(a) Establish a separate Judicial Service, overseen by a new Judicial Service Commission (“JSC”); and
(b) Make consequential changes to the Legal Service, which will be overseen by a reconstituted Legal Service Commission (“LSC”)
- We have consulted the President on the amendments, some of which affect her discretionary powers. The President supports these amendments.
Systematic building up of the Legal Service over the years
- I will begin by briefly touching on the history of the Legal Service. It will give Members some context for the changes being proposed today.
- The framework for the Legal Service was established via the 1959 Constitution, which marked Singapore’s transition to internal self-government.
- Over the years, adjustments were made to the way the Legal Service was run. But the fundamental structure remained unchanged for many decades, until two rounds of major changes.
In 2007, a comprehensive review was done. Major changes were made to create a more systematic talent management system. There were two key changes to the Constitutional structure:
(a) First, the composition of the LSC was expanded. Since independence, the LSC comprised the Chief Justice, the Attorney-General, the Chairman of the Public Service Commission (“Chairman/PSC”), a Supreme Court Judge, and two members of the PSC, as nominated by the Chairman/PSC. Unlike today, all of the members of the LSC were members by virtue of some other office that they held separately.
The 2007 changes widened the LSC’s membership. The CJ, AG and Chairman/PSC would continue to be on the LSC, but in addition, up to 6 additional members, who need not be Supreme Court Judges or PSC members, could be nominated by the Prime Minister, the CJ and Chairman/PSC. The rationale was to bring in members, including those from the private sector, with a wider range of experience (e.g. in personnel management), or who have knowledge of the legal service or the legal profession.
(b) A second key change that was made then was to put in place a system of autonomous personnel boards (“PBs”), which would have charge over different classes of LSOs. I will cover this in more detail later on in my speech.
The second major change happened in 2014: There was a significant shift in favour of specialisation, in response to the increasing scope and complexity of legal work.
(a) Two separate career tracks were introduced for the LSOs in the middle ranks: the judicial and legal tracks. LSOs in the middle ranks could elect to specialise along either track. They could be posted to jobs within either the Judicial or the Legal Branch, to build experience.
(b) The PBs were restructured along the Branch lines to oversee the career development pathways of the LSOs in the respective tracks.
- The enduring challenge has been our very small pool of talent, due to our small size. This has been the raison d’etre for keeping with an integrated model: LSOs could be deployed interchangeably across Judicial and Legal Branches over the course of their career.
This principle was, in fact, recognised very early on.
(a) The 1955 Malayanisation Commission – which was set up to accelerate the pace of localising the public service, in preparation for self-government – recommended that Legal Service officers be transferred from the Judicial side to the Legal side and vice versa, so as to “give officers an all round training, and also to overcome the present objection of potential recruits to having experience limited to one side of the Service only which leads to a monotonous and incomplete professional career.”
(b) It was also agreed that all-round experience was beneficial, and that it would be best for officers to have experience at the Bar, on the Bench, as well as in the Attorney-General’s Department.
- At the time of independence, we only had 45 LSOs. It took 30 years for the Legal Service to grow to 235 LSOs in 1995. This number then grew significantly, to 589 LSOs in 2014. But even then, a fully specialist service was not a viable option – there were only 159 officers in the Judicial Branch and 419 officers in the Legal Branch.
With these numbers:
(a) Having specialist services would leave officers, on the judicial side especially, lacking in opportunities for growth and career development – an “incomplete professional career”, to quote the words of the Malayanisation Commission.
(b) This would hamper the ability to attract and also retain talent.
The integrated model has worked well for us
- Sir, the integrated model has worked well for our context.
- The Legal Service has played a key role in the development of our legal system, and consequently in building Singapore’s reputation for commitment to the rule of law. As Former CJ Yong Pung How said previously: “… the Legal Service has played a very important role in the success which Singapore has achieved as a nation. The work of many Legal Service Officers has contributed significantly to the recognition which our legal system has obtained as being among the best legal systems in the world.”
Today, over 800 LSOs serve in various crucial roles:
(a) LSOs in the Judicial Branch have contributed to building a world-class Judiciary that is both strong and trusted.
(b) LSOs in the Legal Branch, such as in the Attorney-General’s Chambers (AGC) and in the various Ministries, support effective and nimble functioning of the Executive and Parliament. For example, officers in AGC’s Legislative Division not only draft all the laws that are tabled and debated in this House, and I’m sure Members are very familiar with all the Bills that have come, sometimes at breakneck speed, but also many pieces of subsidiary legislation that are critical for the effective functioning of the Executive.
(c) Our international lawyers – they defend Singapore’s interests on the global front, and make an outsize contribution to the continued vitality of the rules-based international order.
The high levels of public trust in these institutions is also worth noting. A 2020 public perception survey by MinLaw found that there is strong positive perception of our legal system and institutions among Singapore residents –
(a) 95% of respondents agreed that we are governed by the Rule of Law.
(b) 90% had trust and confidence in our legal system, and agreed that we had an efficient legal system.
(c) Around 90% had a positive view of our Courts and of AGC.
On the world stage –
(a) In the Heritage Foundation’s 2021 Index of Economic Freedom, Singapore achieved the highest scores among 184 countries for judicial effectiveness.
(b) The World Economic Forum placed Singapore 1st in its 2019 Global Competitiveness Index, in terms of the efficiency of its legal framework in settling disputes.
- Sir, this is not an exercise in theory, or just in ranking numbers, but an exercise in building an institution that can actually deliver justice.
- The COVID-19 pandemic, that we have just been experiencing and are still in, has shown the depth and excellence of our Legal Service.
LSOs in both the Judicial and Legal branches have worked tremendously hard to deal with the challenges brought about by COVID-19:
(a) LSOs in the Legal Branch provided crucial legal support to the Government response to the pandemic. In January 2020, AGC stood up a Cross-Divisional Task Force, staffed by LSOs from the AGC and the legal divisions in various ministries, to provide urgent cross-cutting advice to the Government on all areas of the national pandemic response, e.g. establishing Government quarantine facilities, contract tracing, border security, ensuring continued trade flows for essential goods, services and supplies, financing the various COVID response budgets, and also vaccine procurement.
(b) In the first half of 2020 alone, AGC received over 1,300 COVID-related requests for advice. It responded to 69% of these requests within 24 hours, and 78% of these within 48 hours. So it’s not just the quality, but also the speed of the responses from our officers.
(c) LSOs, including drafters from AGC, worked closely with policy officers in many Ministries as well as with private sector representatives to roll out a series of urgent measures, to mitigate the economic impact of the pandemic on individuals and businesses. These measures – which required major pieces of legislation to be drafted in record time – included, and I think members would recall over the past 18 months: Temporary relief from contractual obligations, a rental relief framework (done more than once), simplified frameworks for financially distressed companies to liquidate their businesses or restructure their debts, and a framework for the negotiation of contracts affected by the pandemic. All novel pieces of legislation.
The quickly drafted legislation also allowed the Government to quickly implement new measures to control the spread of the disease.
(a) When “Circuit Breaker” measures were imposed to stop the spread of the virus, LSOs in the Courts, AGC and MinLaw, with other officers in the various agencies, worked together to formulate legislation, to ensure the continued and undisrupted access to justice in spite of the pandemic.
(b) The Courts operationalised a framework for remote hearings, developed a wide-range of pandemic-related protocols. This ensured continued, undisrupted access to justice, even in the middle of the pandemic.
(c) To enforce the Infectious Diseases Act and COVID-19 related legislation, prosecutors worked closely with law enforcement agencies to assess the evidence and take quick action in all cases.
On the international front:
(a) LSOs in the International Affairs Division ensured that our COVID-19 measures remained consistent with our international obligations.
(b) As the situation improved in Singapore, they also assisted the Government in negotiating essential travel and air bubble arrangements, to sustain economic exchanges and maintain our relevance as a regional and global hub.
- Sir, these are just a few examples of the many contributions of the Legal Service in ensuring the fair and efficient administration of justice in Singapore, during the pandemic.
What model will allow us to sustain and build on the strength of the Legal Service, moving into an uncertain future?
- What I have just outlined has been the model that we have adopted since Singapore achieved self-Government. It has served us well to build up a Legal Service, into the excellent institution that it is today. I think Members would agree that Singapore has benefited immensely.
Over the years, the Government has considered the question of whether an integrated or a specialist service would best serve Singapore’s needs.
(a) We recognise the pros and cons both ways – the challenge has been, and continues to be, finding the right balance for our circumstances, our own context, and our needs.
(b) As mentioned, the small talent pool has been a constraint, and that is something that we keep in mind as we consider the options.
In July this year, Mr Murali Pillai, with the support of other Members, spoke on this matter in Parliament, calling on the Government to study the feasibility of setting up a separate JSC for judicial officers.
(a) Several Members spoke. They made good points about the increasing need for specialisation, including for the Judiciary, given the increasing factual and legal complexities of the cases presented in Court.
(b) Minister Shanmugam agreed with their observations that the benefits of specialisation are likely to continue to grow, as the Legal Service continues growing and maturing as an institution.
Rationale for the restructuring
- After studying the matter further and discussing the matter in detail with the Chief Justice and the Attorney-General, the Government decided that we can take this step.
- As Minister Shanmugam has said recently, the amendment is a finely balanced one. You can make a good case for not changing now, and waiting.
- However, you can also consider the following: The Legal Service has, since 2014, also grown significantly. It had, as of July 2021, 815 officers.
- Although this is still a relatively small number in context, it will allow us to have specialist services, whilst retaining the benefits of the integrated model through a system of secondments.
- Officers today have many opportunities to gain meaningful exposure and develop their careers. Since 2014, both the Judicial Branch and Legal Branch have made various changes to deepen specialist skillsets.
There has also been a significant emphasis on the training of our judges, to develop specific competencies required for the judicial role.
(a) In 2015, the Singapore Judicial College was established as the central training body for the Judiciary.
(b) The State Courts and the Family Courts also run their own training programmes to help their judicial officers develop both deeper subject-matter knowledge, as well as the necessary practical skills.
- At AGC, the AGC Academy was set up to take charge of managing the training for AGC officers. Competency frameworks were developed so that individual training roadmaps could be drawn for each officer, according to their own area of practice and specific level of expertise. The Academy also organises regular workshops and lectures by subject-matter experts in both core and developing areas of the law, for AGC officers.
- Cross-departmental clusters and specialist tracks have been established to help build expertise in particular areas of the law.
The restructuring and greater specialisation
- Sir, the proposed restructuring will build on these efforts; better support specialisation of roles and competencies required of LSOs.
- Each Commission will focus on the particular demands of their respective Services. They will have flexibility to adapt their personnel management and development frameworks, according to their respective Services’ specific needs.
Why make the change now?
- The shift to a specialist model is not so much to address the problems of today, but really a matter of forward planning, preparing for the challenges of the future.
As Minister Shanmugam said in his response to Mr Murali’s motion, the key question is – when is the right time to move?
(a) We could take a wait-and-see approach, given what I have said, maintain the current system and make small adjustments at the margins smaller tweaks.
(b) Or we can make the move now, prepare ourselves for the future. We believe this will eventually make sense – to split the two services, when the Legal Service grows further.
- I will now take Members through the key provisions of the Bills, starting with the Constitution of the Republic of Singapore (Amendment) Bill.
- Broadly, the new provisions seek to replicate the existing provisions in respect of the current LSC, with appropriate adjustments to be made where necessary in introducing the JSC.
Establishment of the new Judicial Service and JSC
Clause 6(a), read with Clause 26(1), establishes the Singapore Judicial Service.
(a) It will consist of existing LSOs – holding posts in the Supreme Court or a Subordinate Court.
(b) All other LSOs will remain in the reconstituted Legal Service.
Clause 14 inserts new Articles to establish a JSC, and to reconstitute the LSC.
(a) The new Articles 111B to 111I relate to the new JSC; while
(b) Articles 111J to 111Q relate to the reconstituted LSC.
Composition of JSC/LSC
- The composition of the Commissions is set out in the new Articles 111B and 111J of the Constitution.
Each Commission will have two ex officio members:
(a) CJ will be the President of the JSC; AG will be the President of the LSC.
(b) Chairman/PSC, will be the ex-officio Vice-President of both Commissions.
- The key change here is the hardcoding of Chairman/PSC’s role as Vice-President in both Commissions.
Other than this, the remaining provisions replicate the current position in the Constitution:
(a) The respective Presidents of the Commissions, Chairman/PSC and the Prime Minister may nominate up to 2 members, whose appointment is subject to Presidential veto.
(b) Where any of them nominate 2 members, then at least one of them must be legally-trained and of adequate seniority, in order for both to be appointed.
(c) The existing disqualifications that you see today will continue to apply.
- Similar to today, personnel boards (or PBs) may be established to exercise certain functions of the two Commissions.
- However, there will be some structural changes to the PBs, which I will take Members through.
In 2014, PBs were restructured along Branch lines, instead of by seniority. This was part of a broader shift towards specialisation, as mentioned earlier.
(a) The two PBs that had been operating since 1995 were replaced by the Judicial Branch Special Personnel Board and the Legal Branch Special Personnel Board, which have been in operation since that time.
(b) These two new PBs respectively oversee most human resource functions in respect of LSOs in the Judicial Branch and LSOs in the Legal Branch, up to superscale Grade 3.
(c) Officers at superscale Grade 2 and above continue to be overseen by the LSC directly.
(d) The two Boards also oversee career development pathways in the Legal and Judicial tracks.
(e) The Boards are currently constituted as such: Both are chaired by CJ, who is President of the LSC. The Judicial Branch Special Personnel Board comprises CJ and three other Supreme Court Judges. The Legal Branch Special Personnel Board comprises CJ, senior members of the AGC, including the AG, and a Supreme Court Judge.
- As part of the review, we also reviewed the appropriate structure for the PBs, in the context of the changes that we seek to make for the proposed specialist model.
With the restructuring, we have decided – following discussions with both CJ and AG – to shift to a system of formalised delegation:
(a) The structure of the Commissions already align authority and responsibility – reducing the need for devolution. CJ and AG, as Presidents of their respective Commissions, will be closely involved in the management of the officers in their respective Commissions. They will each be able to nominate Supreme Court Judges and Deputy Attorneys-General to the Commission, if they so choose.
(b) Both offices are involved in the management of their organisations and enjoy constitutional protection for their independence.
A system of formalised delegation will –
(a) Facilitate alignment of purpose, and efficient decision-making; and
(b) Facilitate the division of responsibilities between the Commissions and PBs.
Proceedings under the Arbitration Act and International Arbitration Act to be heard in private
Post-restructuring, the sizes of the Services will also be smaller:
(a) About 200+ officers in the Judicial Service, and
(b) 500+ officers in the Legal Service.
Under this proposed structure:
(a) Commissions will be empowered to delegate, by way of subsidiary legislation, stipulated functions and powers to one or more of the PBs.
(b) These are to be exercised under the Commission’s direction and control.
In terms of composition of PBs:
(a) The Articles set out a closed list of persons who may be appointed as PB members.
(b) There is also a requirement that PBs must have at least three members to ensure a diversity of voices within a PB; and to bring balance to its discussions and decisions.
Safeguards, at the same time, will be retained:
(a) The Commissions may not delegate functions and powers relating to (i) senior officers at or above the threshold grade, and (ii) discipline and dismissal of any officers. Both of those remain non-delegable.
(b) As is the case today, these matters will be decided at the Commission level, because matters relating to senior officers should be decided directly by the Commissions; and functions of discipline and dismissal have serious professional implications and consequences.
(c) The appointment of members to any PB remains subject to the President’s concurrence, as is the case today.
Secondments and transfers
Cross-Service secondments will continue to be available on application, after the restructuring. I mentioned cross-service secondments earlier in my speech. Those will continue to be available.
(a) To facilitate this, Articles 111F and 111N, for the JSC and LSC respectively, allow them to make joint Regulations, to provide that their personnel management functions over officers holding prescribed posts may be exercised by the other Commission.
Secondments will be available under a framework jointly developed by the two Commissions. Such movements will likely be subject to:
(a) The prevailing rules or requirements developed by the two Commissions;
(b) The needs of the Services, given their specific manpower needs, including the availability of positions; and
(c) Necessarily, the officers’ relevant experience and suitability for the job.
Sir, before I move on from the Constitution (Amendment) Bill, let me just briefly draw Members’ attention to clauses 21 and 22 of this Bill.
(a) These clauses do not relate to the Commissions. These clauses amend the references in the Constitution to various statutes relating to government borrowing.
(b) The changes are consequential to the amendments made in the Government Borrowing (Miscellaneous Amendments) Bill, which was just debated.
Judicial Service (Miscellaneous Amendments) Bill
- Sir, I now turn briefly to the Judicial Service (Miscellaneous Amendments) Bill, which makes consequential amendments to various other Acts.
The Bill inserts terms such as “Judicial Service Officer”, “Judicial Service Commission” or “Singapore Judicial Service” into the affected Acts, where appropriate, such that:
(a) Acts which apply in relation to the Legal Service will also apply to the Judicial Service;
(b) Acts that apply in relation to the LSC will also apply to the JSC; and
(c) Finally, Acts that apply in relation to LSOs will also apply to JSOs.
- Sir, in conclusion, these amendments are intended to build on the six decades of institution-building that has made the Legal Service the premier service that it is today.
- Sir, I beg to move.
Last updated on 03 Nov 2021