Second Reading Speech by Senior Parliamentary Secretary, Mdm Rahayu Mahzam, on Public Defenders Bill
01 Aug 2022 Posted in Parliamentary speeches and responses
Mr Deputy Speaker Sir,
1. On behalf of the Minister for Law, I beg to move “That the Bill be now read a second time.”
2. I will speak about the broader policy and principles behind this Bill, as well as the specific provisions of the Bill.
3. Let me start with the backdrop to this Bill.
4. In April this year, the Minister for Law delivered a Ministerial Statement on the establishment of a Public Defender’s Office to deliver criminal defence aid.
5. Minister said that this is a significant shift in policy.
6. Before this, in 2015, we began directly funding CLAS. This is the Criminal Legal Aid Scheme run by the Law Society Pro Bono Services.
7. In 2019, we began studying how else we could make criminal legal aid available to the vulnerable in society.
8. We decided that setting up a Public Defender’s Office, or PDO, is the right model for Singapore.
9. This is a very significant move as the State is taking on a direct role of providing criminal legal aid.
10. Today’s Bill provides for the establishment of a criminal defence aid scheme, to be administered by the PDO. This has come after intense consultations – at least ten consultations with the Law Society and Criminal Bar over the last two years. And we considered their feedback carefully.
11. I will now sketch out the reasons for setting up the PDO, and explain the shift in our philosophy towards criminal legal aid.
III. RATIONALE FOR THE PUBLIC DEFENDER’S OFFICE
12. The previous view taken, in light of the developments in Singapore then, was that the State should not be paying to defend accused persons. There are good reasons for this. Before accused persons are charged, there would have been thorough investigations done by the Police. AGC would also have reviewed decisions to charge.
13. However, this would have to be balanced against the need for accused persons not to be denied representation, in their defence.
14. For a long time, the balance has been struck against providing representation. This is a question of judgement, and our view is that the right balance was struck at that time. However, in today’s Singapore, we think that the balance has shifted.
15. With this, we need to consider, first, who we should help.
16. A study conducted by the Ministry of Law showed that accused persons whose monthly per capita household income, or PCHI, is less than $950, cannot afford legal representation. These households are around the 25th percentile of resident households by income.
17. Those whose monthly PCHI is less than $1,500, or around the 35th percentile, will also find it challenging to afford representation, even for plead guilty cases.
18. Thus, we are expanding our coverage from the 25th to the 35th percentile of households by income.
19. We will, at the same time, increase aid coverage to all criminal offences, with some exceptions.
20. Second, we need to consider how our existing model of criminal legal aid can be improved.
21. Today, criminal legal aid is provided through CLAS, which we began funding in 2015.
22. This has helped more accused persons.
23. However, the number of cases that CLAS could handle, is dependent on the support from the Bar. Whereas if the Government steps in, the assurance level for the provision of legal support can be higher.
24. Our assessment is that Government should provide more assistance to help needy Singaporeans who cannot afford legal representation.
25. Hence, we will be establishing the PDO to help such accused persons.
26. This is a significant move as it will institutionalise public defence within our criminal justice system.
27. The PDO will have its own full-time officers. This will allow us to deliver timely and higher quality representation.
28. The PDO will also help to build up the capabilities of the Criminal Bar.
IV. SAFEGUARDS AGAINST ABUSE
29. The Minister for Law had spoken at length during his Ministerial Statement about the experiences of other jurisdictions, with Public Defender Schemes.
30. He mentioned an example of escalating costs in Hong Kong. They spent S$217 million on criminal and civil legal aid in 2016. This was due to continual increases in lawyers’ fees of around 4 to 10% every year.
31. He also shared other examples of abuse from various jurisdictions, and how these strained the public purse, and led to cuts in funding.
32. For instance, some asset-rich individuals managed to find ways to meet the eligibility criteria. These legal aid recipients would show up in Rolls Royces and other fancy cars, which they said were not theirs.
33. Thus, while we press ahead to establish our own PDO, we must be careful to avoid the challenges of escalating costs; and abuse by accused persons who can afford representation.
34. It is important to learn from others’ experiences, and avoid making the same mistakes. We are determined not to run down their routes.
35. This includes instituting various safeguards into the Bill.
36. Let me touch on three key elements.
37. First, to maintain public confidence.
38. Good governance is important. This is why we are moving this Bill – to provide us with a strong governance framework, with legal backing, for the PDO. We will set up the PDO as a department under MinLaw. This enables better oversight of criminal defence aid by MinLaw.
39. The PDO will be helmed by a Chief Public Defender or Chief PD. He will report to the Permanent Secretary, and Minister for Law. The Chief PD will maintain operational and professional independence. Similarly for the officers under him.
40. The Chief PD and his team will exercise their discretion in deciding whether to grant aid or not, by carefully examining the merits of each legal aid application. They will also be able to exercise their professional independence when providing representation and advice to persons granted legal aid.
41. Second, to ensure that only deserving applicants receive aid.
42. All applications for criminal defence aid will be subjected to robust means and merits tests. These tests are our key gatekeepers to ensure that aid is given to those who truly need it.
43. There may still be applicants who try to game the system to get aid. For example, they may not be eligible for aid, but lie about their means or make false declarations. There will be criminal penalties to deter such behaviour.
44. Third, to keep our costs in check while ensuring quality representation.
45. Frameworks will be put in place for the PDO to ensure costs continue to remain sustainable.
46. We will hire full-time officers. This will allow us to budget, and let us know what the overall cost will be.
47. I will emphasise again what the Minister for Law mentioned at his Ministerial Statement. If there is no careful control of the cost initially, it would be difficult to bring it back down later.
48. We will build up the capability and credibility of the PDO to command the trust and respect of:
(b) The legal fraternity, and
(c) The accused persons we serve.
49. We have to learn from examples of other Public Defender Schemes overseas.
50. And take preemptive steps to make sure we do not face the same issues.
51. This is not going to be easy as there will be demand for legal representation, and we would have to be careful about this.
V. PUBLIC DEFENDERS BILL
52. Having set out the broader policy considerations behind the PDO, I will now turn to the provisions in the Bill.
53. There are four key areas:
(a) First, the appointment of the PDO’s officers;
(b) Second, the scope of aid, called criminal defence aid in the Bill;
(c) Third, the administration of criminal defence aid; and
(d) Fourth, the penalty framework.
(A) Appointment of Chief Public Defender and Other Officers
54. First, the appointment of the Chief Public Defender and other officers.
55. The Bill provides for the appointment by the Minister of:
(a) A Chief PD,
(b) Deputy Chief Public Defenders and
(c) Assistant Chief Public Defenders.
56. The Chief PD can also appoint qualified and experienced persons as public defenders, or PDs to assist him or her.
57. These officers of the PDO, or PD Officers, will have the right to appear and plead in the courts, and can therefore represent aided accused persons.
58. Just like a Deputy Public Prosecutor, a PD Officer is expected to assist the court in coming to a correct decision in respect of guilt or sentence.
59. The Bill also includes related amendments to the Evidence Act and Legal Profession Act, to bring PD Officers under the provisions of both Acts, where relevant.
60. The related amendments to the Legal Profession Act ensure that the PD Officers have the standing to advise and represent accused persons in criminal proceedings, and subject PD Officers, as officers of the court, to the disciplinary framework administered by the Supreme Court.
61. This disciplinary framework currently applies to officers under the Judicial and Legal Service Schemes. This gives the public confidence that PD Officers are subject to the same checks and balances as Judicial and Legal Service Officers.
62. The related amendments to the Evidence Act are for the purpose of extending statutory protection to PD Officers, in respect of professional communications with an advocate or a solicitor.
(B) Scope of Criminal Defence Aid
63. Second, the scope of criminal defence aid.
(1) Who will be Eligible?
64. The Bill provides for criminal defence aid to be granted to needy Singaporeans and Permanent Residents, or SCPRs, who are charged with offences not excluded by the Bill. An SCPR is therefore not eligible for aid if he or she is only under investigation for such an offence.
65. The scope of criminal defence aid also covers criminal appeals or criminal applications arising from criminal proceedings instituted against the applicant.
(2) Coverage of Offences
66. As mentioned earlier, we will widen our coverage to all criminal offences with specific exceptions.
67. These exceptions fall into four classes of offences.
68. First, offences that are punishable by death. These are capital cases that will continue to be covered by LASCO – the Legal Assistance Scheme for Capital Offences, which is administered by the Supreme Court.
69. Second, offences that are generally regulatory in nature. This refers to minor offences for which the accused person is served:
(1) A Notice to attend Court, or
(2) A Summons,
by an officer of a statutory body or government agency.
70. This exclusion is not intended to extend to criminal offences that are dealt with by law enforcement agencies such as the Singapore Police Force, Central Narcotics Bureau and Corrupt Practices Investigation Bureau.
71. This ensures that criminal defence aid is only given in respect of proceedings for serious offences, as opposed to minor traffic offences, or offences brought under departmental summonses, such as littering and failure to file income tax returns.
72. Third, offences under ten Acts whose main purpose is to deter behaviours that bring about negative externalities to society. These offences cover gambling and betting, organised and syndicated crime and terrorism.
73. Fourth, private prosecutions that have not been taken up by the Public Prosecutor. Criminal defence aid will only be given for State prosecutions.
74. If an applicant for aid does not qualify because his offences are excluded, his application falls outside of the Bill. But it does not mean that he cannot obtain legal aid elsewhere. If there are any such applications that may deserve aid due to their particular circumstances, the applicant may apply instead to the Law Society Pro Bono Services, or LSPBS, for consideration.
75. The Bill provides for criminal defence aid to be given to accused persons who face multiple charges before the same court in respect of offences, some of which are excluded offences. The PDO can represent such accused persons if he or she passes the means and merits test for the offences that are not excluded. This will allow the PDO to effectively represent the aided person when all his charges are dealt with in the same court.
(C) Administration of Criminal Defence Aid
76. Third, the administration of criminal defence aid.
(1) Qualifying Tests
77. As mentioned earlier, all applications for criminal defence aid will be subjected to rigorous means and merits tests.
78. These tests ensure that only deserving and needy applicants receive aid.
79. The Chief PD can also refer applications that pass the means and merits tests to other organisations to provide legal aid, rather than assign the case to a PD Officer. CLAS is an important partner in this. And the PDO will co-deliver criminal legal aid with CLAS.
(i) Means Test
80. The exact means test criteria will be laid out in subsidiary legislation.
81. It will comprise two components – income and wealth.
82. The income criterion is the monthly PCHI threshold, which will be raised from $950 to $1,500 when PDO commences operations. This is a significant move to ensure we cover more needy applicants who would otherwise struggle to pay for a lawyer at these income thresholds.
83. The wealth component looks at an applicant’s savings, assets and investments.
84. Even if an applicant does not satisfy the means test criteria, the Minister can direct the Chief PD to grant aid if the Minister is of the opinion that it is just and proper to do so. This gives leeway to provide aid to those who do not satisfy the means test criteria, but are unable to afford legal services due to extenuating circumstances. For example, an applicant may be battling an illness, or may have to care for an incapacitated family member. We will consider all relevant circumstances in the grant of aid.
(ii) Merits Test
85. For the merits test, aid can be granted where the applicant requires legal representation to plead guilty, or there are reasonable grounds for defence.
86. In appeal cases, aid can be granted where there are merits to the appeal brought by the applicant or in defending the appeal brought by the prosecution.
87. The merits test will be administered in two ways.
88. For expediency, the Chief PD will decide on the merits to an application in respect of offences or class of offences that carry lesser penalties.
89. The merits to an application in respect of offences or class of offences that carry heavier penalties will be decided by a board comprising the Chief PD and at least two private solicitors.
90. This ensures that applications with more severe offences will be subject to greater deliberation.
91. Solicitors on the board will also provide a diverse and independent point of view on the application and enhance public confidence in the merits test assessment.
92. This classification will be provided in the subsidiary legislation.
93. The Chief PD can also refuse aid if he considers that it is not appropriate in the circumstances of the applicant’s case to grant aid.
94. This could include cases where the applicant may not benefit much from legal representation, such as those with established sentencing frameworks.
95. Where the Chief PD decides not to grant aid, the Minister is empowered to authorise the Chief PD to grant aid in the interest of justice.
(2) Grant of Aid
(i) Provisional Grant of Aid for Urgent Cases
96. Some applicants may require legal aid urgently. Examples are those in remand or who are minors. Such applicants can be issued with a provisional grant of aid if they are likely to pass the means and merits test. This ensures that no deserving applicant will be denied aid while waiting for the means and merits tests to be completed.
(ii) Repeat Applications
97. To prevent wastage of resources, the Chief PD can refuse to consider repeat applications for the same matter unless there is a change in circumstances. This ensures that resources are optimally allocated to deserving cases.
(iii) Cases Involving Co-Accused
98. The PDO will only represent one accused person in proceedings involving multiple co-accused persons, if more than one party qualifies for aid. This is to prevent any potential or perceived conflicts of interest where the co-accused persons have inconsistent defences. The Chief PD will have the discretion to decide which accused person will be represented by the PDO. The other co-accused persons may be referred to CLAS.
99. Applicants will be required to co-pay the costs of legal aid. The less they have, the less they pay, and vice versa. Those with very little savings and investments may even pay nothing. This ensures that applicants contribute towards their defence and do not abuse the system.
100. This is no different from the current approach by CLAS, and the Legal Aid Bureau for civil legal aid. The co-payments may be provided in a lump sum or by instalments. The Chief PD will have the discretion to reduce, waive, or refund any such contributions.
(4) Panel of Solicitors
101. In future, the PDO will adopt a hybrid model of managing cases in-house while outsourcing some others to the private sector. To cater for this, the Bill includes provisions for the appointment of one or more panels of solicitors to act for aided accused persons, and for the solicitors to be paid fees.
102. The fees payable to a solicitor will be agreed on between the Chief PD and the solicitor based on considerations that include:
(a) The complexity or novelty of the issues involved in the case,
(b) As well as the skill and specialised knowledge required of,
(c) And time and labour expended by, the solicitor.
(D) Penalty Framework
103. Finally, there are criminal penalties if an applicant abuses the system.
104. This includes making false or misleading statements in the application, failing to make full and frank disclosure about one’s means, or failing to inform about changes in one’s means or other circumstances that would render an applicant ineligible for aid.
105. For such cases, the Bill provides for a fine not exceeding $5,000, or to imprisonment for a term not exceeding six months, or to both.
106. The Bill also provides for the court to order costs against a person who:
(a) Obtained aid through fraud or misrepresentation, or
(b) Acted improperly in defending or contesting any proceedings or in the conduct of those proceedings.
107. Sir, to conclude, the Bill has been carefully calibrated to ensure that only deserving persons are provided with criminal defence aid in a timely manner, while ensuring that we manage our resources prudently and do not strain the public purse.
108. The Bill will enable the Public Defender’s Office to provide criminal defence aid, which will enhance access to justice for the more vulnerable members of society.
109. Justice should not be the preserve only of those who can afford lawyers. It should be accessible to those without the means to do so.
110. This is a measure of how far we have come. And how caring and compassionate we are, as a society.
111. Mr Deputy Speaker Sir, I beg to move.
Last updated on 01 August 2022