CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL

CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL: Order for Second Reading read.

3.04 pm

The Deputy Prime Minister and Minister for Law (Prof. S Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

This Bill makes several amendments to the Constitution of the Republic of Singapore. The main amendment is to make changes to the composition of the Legal Service Commission (LSC) as well as to enhance and institutionalise the personnel management system of the Singapore Legal Service. There are three other amendments: (1) to make provision for alternate members on the Council of Presidential Advisers to act in place of

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members who are temporarily unable to take part in Council proceedings; (2) to shorten the oaths of office for the Prime Minister, Ministers and Parliamentary Secretaries; and (3) to provide that Judicial Commissioners who are appointed to hear specific cases need not be subjected to repeated oath-taking. Some of these amendments, Sir, affect the President's discretionary powers, though not adversely. The President has been consulted on them, and he supports them.

The Legal Service Commission and personnel management system of the Singapore Legal Service

Mr Speaker, Sir, let me first deal with the amendments pertaining to the changes to the Legal Service Commission and to the personnel management system of the Singapore Legal Service.

These amendments are a follow-up to my Statement to this House on 3rd April last year, when I announced a review of the personnel management framework for the Singapore Legal Service. As I then explained, our Legal Service personnel management system was inherited from the British. The Constitutional framework for the Legal Service has remained largely unchanged since Singapore's independence, even though the demands on legal services have changed radically. We need to strengthen the personnel management system to make it more robust as well as more responsive to the new challenges in managing talent and personnel in the expanded Legal Service.

As I said in my Ministerial Statement last year:

"... The Government has discussed with the outgoing Chief Justice Yong Pung How, the incoming Chief Justice as well as the next Attorney-General, on how we can build on this hard-won reputation. They are all agreed that

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the key is to have the right people in our judiciary and legal service. It is vital that we maintain a continuing inflow of talent and attract the best and promising law graduates to the Legal Service. They are also unanimous that, to achieve this, we need to restructure the Legal Service Commission (LSC) and update our personnel management system. We also need a more systematic talent management system."

As a follow-up, the LSC appointed the Legal Service Personnel Management Review Panel on 20th April 2006, chaired by Justice Lee Seiu Kin, to conduct a comprehensive review. The Panel made several recommendations on the management and development of talent in the Singapore Legal Service. And these recommendations are now being implemented.

The LSC sits at the apex of the personnel management system for the Singapore Legal Service. It is vested with the Constitutional authority to recruit, promote and discipline all legal service officers. Currently, the LSC comprises the Chief Justice, the Attorney-General, the Chairman of the PSC, a Judge of the Supreme Court nominated by the Chief Justice, and two members of the PSC as nominated by the Chairman of the PSC. In other words, they are all members by virtue of the offices that they hold.

This composition has remained unchanged since independence. The membership of the LSC will now be widened to provide for the appointment of more members with experience that is relevant to the Singapore Legal Service of today. The LSC will be restructured to include members with a wider range of experience, for example, people who have worked in personnel management or who have knowledge of the legal service or the legal profession. They can be from the

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private sector, and can include retired judges or retired senior counsel.

The Chief Justice will continue to be President of the LSC, and the Attorney-General and the Chairman of the PSC will also continue as members of the Committee. Article 111 of the Constitution will be amended to provide up to six more LSC members, who need not necessarily be Supreme Court Judges or PSC members. The additional members will be nominated by the Prime Minister, the Chief Justice and Chairman PSC, respectively. The Prime Minister, the Chief Justice and Chairman PSC can each nominate one but not more than two additional members for appointment by the President. The President, however, is not bound by these nominations. His power to veto appointments under Article 22 is expanded to these additional LSC members. In doing so, we preserve the President's safeguard role as regards the integrity of the Singapore public service.

A significant change is that the Prime Minister will now nominate up to two LSC members. Currently, the Prime Minister has no role in the appointment of LSC members. This change is consistent with the role of the Prime Minister in recommending appointments of judges after consulting the Chief Justice. It is also consistent with the role of the Prime Minister in recommending appointments to the PSC and his retaining responsibility for the civil service of which the Legal Service is a part.

The Prime Minister will be nominating only two out of the six nominated LSC members, and his nominations will have to be approved by the President acting in his discretion.

The Constitution will also be amended to allow Personnel Boards to be established for the Singapore Legal Service, and for these Boards to operate autonomously from the LSC. Under the present personnel management system of the Singapore Legal Service, Personnel

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Boards have been established by the LSC, but these Personnel Boards are delegates of the LSC, deriving all powers and functions from the LSC and discharging those powers and functions under LSC's direction and control. The amendments in the Bill will allow the Personnel Boards of the Legal Service to evolve to become like the Personnel Boards for the rest of the civil service, with adaptations, of course, because of the smaller number of officers in the Singapore Legal Service. A new Article 111AA will allow the President, on the advice of the Prime Minister, to establish one or more Personnel Boards having charge over different classes of Legal Service officers. The powers of the LSC will be devolved to the Personnel Boards for Legal Service officers, except the power of dismissal and disciplinary control, and all powers of recruitment and promotion of Legal Service officers of and above a certain threshold grade. Once a Personnel Board is established for a specific class of Legal Service officers, the powers of the LSC will cease to be exercisable with respect to that class of officers, except in an appellate capacity.

The members of a Personnel Board for Legal Service officers may or may not be members of the LSC. LSC Personnel Board members will be appointed by the President where he agrees with the advice of the LSC. Like the Personnel Boards for other civil servants, the appointment of members of the LSC Personnel Board is also subject to the President's veto. Moreover, political office- holders, Members of Parliament and trade unionists will likewise be disqualified from sitting on the LSC Personnel Boards.

Sir, with the changes to the composition of the LSC, and the separately constituted Personnel Boards for Legal Service officers, the Secretary to the PSC will also cease to be concurrently the Secretary to the LSC. The LSC can have its own Secretary, who must be a

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public officer appointed by the President, on the advice of the LSC.

Arising from these Constitutional amendments, related consequential amendments to the Public Service Commission Act will also be necessary to extend its scope and protection to the LSC and its members and to the Personnel Boards for the Legal Service. I will explain those amendments in greater detail during the Second Reading of the Public Service Commission (Amendment) Bill, which is the next item on the Order Paper.

Council of Presidential Advisers

Mr Speaker, Sir, let me now deal with the amendments to allow for the appointment of alternate members to act in place of members of the Council of Presidential Advisers ("the Council") who are temporarily unable to take part in any proceedings of the Council.

The Constitution now provides for the appointment of temporary members where a Council member, for a period of three months or more, is unable to take part in the proceedings of the Council for reasons of illness, absence or other reason. This is in Article 37C. The President can appoint a temporary member on the advice of the Prime Minister, the Chief Justice or the Chairman of the Public Service Commission (PSC), as the case may be.

Sir, however, this provision to appoint temporary members has practical limitations. It does not apply to periods of absence or illness shorter than three months. It also does not address the situation where a Council member cannot participate in Council proceedings in order to avoid any perception of conflict of interest. To address these issues, the President has requested for changes to the Constitution to provide for the appointment of alternate members in place of temporary members. The

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President was consulted on the changes and he supports these amendments in clauses 4, 5 and 6 of the Bill.

Article 37C, which today provides for the appointment of temporary members, will be repealed. It will be replaced with a new Article allowing the President to appoint two alternate members to act in place of any of the Council members, other than the Chairman, who is temporarily prevented from taking part in any proceedings of the Council. The requirement that the temporary disability should be for more than three months will be omitted.

One alternate member will be appointed by the President in his discretion. The other alternate members will be appointed by the President on the nomination of the Prime Minister, after the Prime Minister has consulted with the Chief Justice and the Chairman of the PSC, the latter being the two other nominating authorities for the other Council members. The two alternate members will each be appointed for a term of four years, and each will be subject to the same disqualifications as for Council members.

In the event a Council member is temporarily unable to attend at any Council proceedings, whether by illness, absence or any other reason, one of the two alternate members appointed can then be selected to act in place of that member. Where a Council member is appointed to act as Chairman of the Council, such as whenever the Chairman of the Council himself is Acting President, an alternate member may also be selected to act in that member's place.

The selection as to which alternate member will actually serve at any instance will be made either by the President, the Prime Minister, the Chief Justice or the

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Chairman of the PSC, depending on whose nominee on the Council is temporarily unable to attend Council proceedings. The President will make the selection solely at his discretion if the Council member who is temporarily unable to attend is the President's nominee. Where, however, if the Council member who is temporarily unable to attend is the nominee of the Prime Minister, the Chief Justice or the Chairman of the PSC, the selection will be made by the Prime Minister, the Chief Justice or the Chairman of the PSC, respectively.

Sir, the alternate members are like full Council members. Each alternate member has to take an oath of office and allegiance before assuming his duties as an alternate member. However, to avoid repeated oath-taking, the alternate member need not be required to take such an oath more than once during his term of office as an alternate member.

Oaths of Office for the Prime Minister, Ministers and Parliamentary Secretaries

Mr Speaker, Sir, let me now turn to the amendments to shorten the oaths of office for the Prime Minister, Ministers and Parliamentary Secretaries. The existing oaths of office are too lengthy and may be shortened without affecting the substance of the oaths. The present oaths of office for the Prime Minister, Ministers and Parliamentary Secretaries in the First Schedule of the Constitution will be replaced with shorter oaths.

Let me stress, Sir, that while the new oaths are more succinct and concise, their essence remains unaffected. The oaths have been significantly shortened by leaving out two existing paragraphs on confidentiality of Cabinet discussions and maintenance of secrecy. Let me assure the House that, in substance, there is no change, as the Cabinet is bound by Article 24(2) of the Constitution and is

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collectively responsible to Parliament. Secrecy of Cabinet discussions is the foundation of collective responsibility.

Repeated Oath-taking by Judicial Commissioners

Finally, Mr Speaker, Sir, the remaining amendment deals with oath-taking by Judicial Commissioners appointed to hear specific cases. Currently, Article 94 of the Constitution allows for the appointment of Judicial Commissioners for a period of time and also to hear specific cases. Article 97 requires a Judicial Commissioner to take an Oath of Office on each appointment. This means that a Judicial Commissioner who is appointed to hear two specific cases within a relatively short period of time will have to take the oath twice.

The Chief Justice suggested, and the Government agreed, that we can dispense with oath-taking if the interval between cases is short. The Constitution will be amended such that Judicial Commissioners who are appointed to hear specific cases need not take the oath again if the interval between the cases heard is less than 12 months.

Sir, I beg to move.

Question proposed.

3.25 pm

Ms Sylvia Lim: Mr Speaker, Sir, I would like to raise serious reservations about one aspect of the Bill, and that is clause 8 which amends Article 111 to make changes to the composition of the Legal Service Commission.

Sir, these reservations arise because the Legal Service also comprises persons who are serving in the Subordinate Courts judiciary as Magistrates and District Judges. The Subordinate Courts administer justice and all of us have a

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right to expect that the judicial officers will administer justice impartially. As such, we must make all efforts to give the public confidence that the personnel management system of these judicial officers will enhance their standing as independent arbiters of disputes. I listened to the Deputy Prime Minister's justification for the changes. Notwithstanding that, I believe that clause 8 has the potential of undermining public confidence in the courts' independence.

Under the existing Constitution, the LSC comprises the Chief Justice as President, the Attorney-General, the Chairman of the Public Service Commission, a High Court Judge nominated by the Chief Justice, and up to two members of the PSC. Under clause 8 of the Bill, the composition of the LSC is to be changed to include up to two nominees of the Prime Minister. If the Bill is passed, the LSC still retains its role of deciding on dismissal and disciplinary action of legal officers. For officers above a certain threshold grade, the LSC will also make career decisions, such as promotions and transfers.

Could the Minister clarify further the rationale for having a new category of LSC members who are the Prime Minister's nominees? If the concern is to ensure that the Legal Service manpower policies are in line with the rest of the civil service, it seems to me that the PSC representatives on the LSC can already perform that role.

Sir, the Members of the PSC who are sitting on the LSC had originally been appointed to the PSC on the recommendations of the Prime Minister. The Attorney-General who also sits on the LSC is a member of the Government. To now have two members specifically nominated by the Prime Minister potentially gives the Executive branch of the Government even more

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influence over critical career decisions of our judicial officers.

Sir, my concern is that this can be interpreted as a regressive step for judicial independence. Under the existing system, it is already clear that the Subordinate Courts judiciary does not enjoy security of tenure, unlike High Court Judges, as they can lose their judicial role at any time by being transferred out of the courts to other departments. Whatever the rationale of having a category of the Prime Minister's nominees on the LSC, we should step back and ask ourselves what message is being sent. Even if the intention is not to weaken the role of the Subordinate Courts judiciary, how would the public perceive this move? Would they not think that the judicial officers would still need to consider the interests of the Executive Government in reaching their decisions? After all, the system we are putting in place specifically allows nominees of the Prime Minister a say in their career progression.

Sir, clause 9 proposes a new Article 111AA to set up Personnel Boards to exercise the functions of the LSC permanently, ie, once the Boards are constituted, the LSC can no longer exercise these functions. The members of the Personnel Boards will be appointed based on LSC's recommendations. Since the composition of the LSC itself is going to change to specifically include the Prime Minister's nominees, then recommendations of the LSC for the Personnel Boards would carry the same concerns about how independent they are vis-a-vis the Executive Government. While it may well be the case that the nominees are persons of integrity, would they be perceived as truly independent actors?

Sir, this Bill touches on one of the pillars of the rule of law, ie, the law is to be applied to everybody equally,

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regardless of status or power. While we have entrenched safeguards to protect the independence of the High Court judiciary, we have not done the same for the Subordinate Courts judiciary. The Subordinate Courts' jurisdiction has been enlarged greatly over the years. They handle the vast majority of criminal cases - the Deputy Prime Minister himself mentioned a figure of 200,000 a year - and civil claims up to a quarter million dollars are also handled by the Subordinate Courts. According to their Annual Report 2006 , they dealt with more than 350,000 cases in 2006. Thus, in terms of caseload, their role in the administration of justice directly affects more lives than the High Court.

Sir, it is my strong belief that we should avoid taking any steps which might be perceived as weakening the independence of the Subordinate Courts judiciary. I believe that the proposed change in the LSC composition carries a real risk of undermining public confidence in the neutrality of our courts. And, as such, the proposed change is of grave concern.

3.30 pm

Mr Christopher de Souza (Holland-Bukit Timah): In the 10th Singapore Law Review Lecture, delivered in 1996, Attorney-General Mr Chan Sek Keong (as he then was) had this to say of Singapore’s model of the criminal process, and I quote:

"What is perhaps more important is the integrity of the people who operate the system, ie, the investigative and the prosecutorial agencies, and the ultimate supervisor of the criminal process, the judiciary. In other words, it is people who make a system fair and just, and not the reverse."

I understand the constitutional amendment in relation to the Legal Service Commission’s Personnel Boards to be preserving just that model.

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The new Article 111AA seeks to allow the President, on the advice of the Prime Minister, to establish by subsidiary legislation one or more Personnel Boards having charge over Legal Service officers. My understanding is that this amendment seeks to decentralise the management of officers. It seeks to create a more local supervisory system. In essence, it involves a devolution.

The merits of having a more localised Personnel Board are three-fold:

First, the Personnel Board would, presumably, be made up of members within the officer's department. As such, it will be able to better assess the officer's ground skills to ascertain which posting the officer ought to receive next. It will be able to chart the officer's postings, based on a local assessment of the officer's skill-set. The board would also have had the benefit of reviewing his work on a day-to-day basis.

Second, the officer himself will benefit from a proximate "sounding board" from which he is able to establish how he is performing on the job. Such proximity will also enable the officer to communicate what his interests are to the board and which portfolio he prefers for his next posting.

Third, the plurality of the Personnel Boards (ie, if the amendment envisions the establishing of more than just one board) will assist the LSC in the collation of vital data. If multiple Personnel Boards are envisioned, such as one for each arm of the Service (for example, AG's Chambers, the Subordinate Courts, or the High Court Registry), the collation and submission of data by these boards to LSC will enable LSC to: (a) better rank officers across each arm of the Service; (b) assess which areas of practice the Service, in general, needs to improve on; and (c) devote more time to the important

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task of assessing which officers have the potential to take up senior positions within the Service.

Therefore, I wish to highlight that the devolution of functions to Personnel Boards must not be at the expense of LSC's aim of promoting not just the officers who have skills organic to their daily jobs, but also officers who possess the helicopter qualities needed for leadership positions within the Service.

If, indeed, these are goals of the proposed amendments, the LSC's secretariat, whose current function is to assist in the annual grading exercise of officers, must be allocated a larger financial budget so as to meet these new demands.

But the proposed changes must not be viewed as merely enhancing the career development of the officer and the morale within the Legal Service. The amendments merit much more than such parochial appreciation.

The challenge is not only to chart a career path for a Legal Service officer, but it is to ensure that what he is being charted for meets the growing range of legal services that Singapore wants to provide to local and international clients. Intellectual Property, Competition Law and sophisticated litigation are only a few of the fast-changing areas which both the private and public sectors need to be proficient in.

To this end, on 3rd April last year, DPM Jayakumar emphasised, and I quote:

"As lawyers in the House would know, the legal landscape has changed tremendously in recent years, reflecting the wider changes taking place in the world. With each passing day, the frontiers of law are being pushed further and further. We need only to look at the developments in intellectual property, alternative dispute resolution, information technology and financial services."

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Prof. Jayakumar went on to stress:

"Our Legal Service, therefore, needs to keep abreast of these wider developments, and we need good and able minds in the Legal Service with expertise to advise, prosecute as well as to adjudicate."

The profession's private sector and the Legal Service must move in tandem in order to keep ahead of this pace. Neither should have a monopoly of talent. Instead, they should augment each other so that clients will choose the Singapore legal arena as their jurisdiction for adjudicating disputes or concluding contracts because they know that they will be serviced by top minds in Government and in the private sector.

Among the areas of law I practise, two display the need for tandem progress in both the private and public sectors. These areas are Competition Law and Intellectual Property (or IP law for short).

The Competition Commission of Singapore is staffed by Legal Service officers and economists. Among other things, it has a set of guidelines to regularise the manner in which the Commission will treat companies who "come clean" on their anti-competitive behaviour. This set of guidelines also seeks to explain the leniency programme for companies that "come clean" and seek help in how to become competition-friendly. These guidelines detail what level of immunity (whether half or full) the company will receive if the information that they provide is useful. The point I am making here is that the Commission is concerned with promoting competition in the Singapore economy via methods, such as this leniency programme. However, private sector lawyers and their corporate clients are most concerned with what information needs to be told to the

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Commission and what immunity clients will receive. It is crucial, therefore, for the Commission to strike the right balance between enforcement and commercial sense. International as well as local clients will be affected, if the right balance is not struck. This displays how much we need to invest in the career development of our Legal Service officers and the profession as a whole.

Where IP Law is concerned, many areas of IP jurisprudence are still being decided for the first time by the Singapore High Court. In a recent trial I was involved in, both plaintiff and defendant had to submit on what each thought were the criteria for ascertaining when a trade mark was "well-known". For this, parties submitted to Court authorities from the United States 9th Circuit Court, the European Court of Justice, and the Hansard report on DPM Jayakumar's speech in relation to the amendments of the Trade Marks Act. This was a classic example of how plaintiff, defendant and their respective counsel, Court and Parliament all sought to advance Singapore's Trade Marks law. This advancement is able to continue because of the strong judiciary we have developed.

The Personnel Boards will play a key role in ensuring that our officers are trained for and deployed to jobs that they can excel in. We must continue to invest in human capital. The base plate for my view finds itself in the conviction with which former Chief Justice Yong Pung How delivered the following statement at the annual Legal Service dinner in 2001, and I quote:

"It is precisely because of the difficulty in arriving at neat strategic plans of what to do at each critical moment, that makes it vitally important to ensure that the Legal Service has a continuing flow of top talent at all levels. ... The Legal Service will have to be staffed by men and women who are effectively trained, with strong professional knowledge and

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expertise, who can identify and analyse intricate and novel issues, and make sound judgments where the bottomline is not dollars and cents, but unquantifiable yet critical outcomes, ie, the continued Rule of Law and the fair administration of justice in Singapore."

The need to recruit and retain talent in the Legal Service is of paramount importance. In June of 2000, former CJ Yong paid a visit to England and invited six students for lunch at a restaurant near Piccadilly Circus. He asked each of us to seriously consider a career in the Legal Service. Each of us had yet to graduate but took CJ Yong's advice seriously. Five of us returned and joined the Service as judicial clerks. The sixth joined a magic circle firm's offshore office in Hong Kong. Of the five who returned, two are remaining in the Legal Service and have now been posted to the AG's Chambers. Of the three that left Service, one has since joined a management consultancy firm, the second returned to serve out her bond at SembCorp after a year, and I joined the private sector last year.

It was an honour to serve as an officer in the Legal Service and I can attest to the fact that it is the people who make a system proficient and not the other way round. Having received three postings in four years in the Service, I gained a keen respect for my colleagues who had to exercise an immense amount of discretion each day. This included: (a) deciding whether or not to institute legal proceedings against entities or private individuals in the name of the State; (b) the judicial exercise of discerning whether, on the balance of probabilities, one party's case outweighed the other; and (c) as a judicial clerk researching into how other jurisdictions have tackled a novel point in a new area of law and what we could do to improve on it in Singapore. I beg to differ from Ms Sylvia Lim, and I wish to state that never once in

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all these three portfolios of mine was my will weakened.

While the powers given to these officers derive from the office they assume - whether it be a Deputy to the Public Prosecutor, an Assistant to the Registrar of the High Court or a law Clerk to the Court of Appeal - at the end of the day, it is the human mind that makes the decision. And it matters most that that human mind is equipped with the best knowledge, training and experience to make the decision.

I support the efforts of the Legal Service Commission to improve its structure for investing in and developing this human capital. My sincere hope is that these structural changes introduced via this Bill will ensure that our Legal Service continues to remain first class.

3.41 pm

Prof. Thio Li-ann (Nominated Member): Mr Speaker, Sir, this constitutional amendment Bill is, I believe, the 37th such Bill since Independence was gained in 1965. Given the present composition of Parliament in our dominant party State, it will clearly be adopted and its effect will be to further modify our flexible Constitution, the highest law of the land. This latest Bill will not be the last one to shape the contours of Singapore's still evolving, often innovative, constitutional experiment.

After more than 40 years of statehood, the Constitution remains a work-in-progress, as the Government continues to work out our constitutional salvation. While our constitutional order traces its roots to the Westminster parliamentary system, a colonial legacy, this legal transplant has undergone local modifications through the creation of home-grown institutions, such as the Elected Presidency. This has produced a

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unique hybrid which realigns the institutional scheme of checks and balances.

In the amendment Bill before us today, we see the out-working of having an Elected President rather than a purely ceremonial head of state. The President is constitutionally vested with limited negative or reactive executive powers designed to check the Cabinet in exercising its proactive or initiatory powers in relation to specified matters. The powers of the presidency are implicated, as various proposed amendments in this Bill relate to the selection process concerning key civil servants.

One of the chief functions of the Elected President, since it was constitutionally entrenched in 1991, is to check nepotism and corruption from creeping into how key civil servants are appointed. Previously, the Cabinet had unrestricted discretion in this matter. The existing check on the Cabinet today operates through the vehicle of a presidential veto - as it is casually known - or discretion not to concur with the Cabinet's choice of candidates for certain offices, such as the Accountant-General or Chairman of the Public Service Commission. The President exercises personal discretion in this manner. When the presidency was purely ceremonial prior to 1991, the President was constitutionally obliged to act 'on the advice of the Cabinet', which is basically a formality, a rubber-stamping function.

The presidential veto now applies to a new category of civil servants created by the proposed new Article 111AA of the amendment Bill. These are members of the newly-created Personnel Boards of the Singapore Legal Service which will exercise certain devolved functions formerly wielded by the Legal Service Commission, excluding the powers to

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dismiss and discipline legal officers of a certain rank, which the Legal Service Commission retains. The President can refuse to concur with the advice of the Legal Service Commission in relation to who to appoint to these Personnel Boards. The fact that these Personnel Boards fall within the scheme of the President's veto is a recognition of the important public function they play, justifying this extra layer of checks. It also applies in the appointment of Personnel Boards of the PSC under the current legal framework.

The end goal of this institutional setup of having the Elected President check the Cabinet in limited matters is to ensure good, transparent and accountable Government. This is part of the political philosophy underlying our Constitution which establishes the rule of law as a fundamental constitutional principle. This affirms that we aspire and subscribe to a government of law and not the arbitrary rule of man.

The bedrock of wisdom offered by the ideal of constitutionalism is that "ambition must be made to counteract ambition". Since public power may be abused, one method of addressing this classic problem of power is to diffuse political power and share it out among the various Government branches, to prevent an over-concentration of power in one hand. The adoption of checks and balances is an application of the

separation of powers principle which espouses the wisdom and prudence of adopting institutional and procedural barriers to hinder potential abuses of power.

Our institutions are designed on these principles. When amending the Constitution to refine existing institutions or to create new ones, it is important that this should be done with an eye to ensuring consistency with basic constitutional principles and coherence

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with the existing constitutional framework of powers. This is indeed reflected in some of the amendments.

For example, the principle governing the selection of members of the non-elected Council of Presidential Advisers, as set out in Article 37B, is faithfully adhered to in the proposed amendment to Article 37C. This provides for the appointment of alternate members to the Council. This is important to ensure that this advisory organ to the President is fully staffed, should a member fall ill. It also caters to the scenario where the presidency becomes vacant or the President is unable to discharge his functions because he is ill or out of Singapore. In these cases, the Chairman of the Council of Presidential Advisers steps in as Acting President. Clearly, the Chairman cannot wear two hats, that is, the mantle of the presidency and the garb of adviser to the President. There must be some separation of functions or powers.

This is perhaps necessitated because the original proposal to have a Vice-President was eventually rejected. Meeting the contingency of a vacated office always should be provided for, to prevent disruptions to the running of Government. So, too, constitutionally established organs should always be fully staffed and able to function effectively. By providing for alternate members, the new Article 37C seeks to ensure the Council of Presidential Advisers is always fully manned. Just as the power to appoint these advisers is not monopolised by any one Government branch but shared between the President, Prime Minister, Chief Justice and PSC Chairman, the power to appoint alternate advisers under the new Article 37C is parcelled out. The President appoints one and the other is appointed by the Prime Minister, in consultation with the Chief Justice and PSC Chairman. The 'checks and balances' interplay of political,

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administrative and legal constitutional officers in this decision-making process moderates the exercise of power.

Article 111 is also being amended and the change is quite substantive. Article 111 relates to another non-elected institution, the Legal Service Commission, or LSC, how its members are selected and by which constitutional actor.

In addition to enlarging the size of the LSC, the new amendments bring about alterations in two significant aspects. Firstly, it changes the criteria governing who may be appointed to sit in the LSC; the criteria have been modified and broadened. Secondly, it vests the power to nominate candidates to be appointed to sit in the LSC in a new constitutional actor. This is a substantive change and appears to mark a shift in principle or policy.

The principle of de-politicisation buttresses the existing system regulating the selection process and composition of the LSC. This seeks to keep political influence out of this matter or, at least, to minimise such influence. Presumably, this is to secure the institutional values of objectivity, impartiality and fairness in the management of public servants by the PSC, in general, and the appointment, transfer, discipline and dismissal of legal officers under the jurisdiction of the LSC or its Personnel Boards. Otherwise, the weight of politics may exert undue influence or bias into the process, compelling civil servants to comply with the will of their political masters. Some degree of separation or de-politicisation is desirable to preserve the virtues of the rule of law.

Under the existing regime laid out in Article 111(2) of the Constitution, three members of the LSC are pre-selected in the sense they are drawn from the holders of three stipulated constitutional officers - the Chief Justice, Attorney-General and

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Chairman of PSC. The Chief Justice and Attorney-General enjoy tenure until ages 65 and 60 respectively, which is designed to insulate these officers from unwarranted political influence. The Chief Justice appoints the Supreme Court Judge, while the PSC Chairman may nominate up to two PSC members, to make the full complement of LSC members.

Under the proposed new Article 111(2A), the three stipulated officers continue to be LSC members. The point of departure is in the modification of appointing powers and criteria for LSC membership.

The Chief Justice under the new scheme will have an increased power to nominate up to a maximum of two persons. The nominees are not required to be Supreme Court Judges. The PSC Chairman continues to have the power to nominate up to two persons, but there is no longer any requirement that they be PSC members. The general rule governing this refashioned nominating power is that either the Chief Justice or PSC Chairman nominates two persons, at least one must be a qualified person under section 2(1) of the Legal Profession Act for a minimum 10-year period. This indicates that while the membership of the LSC should be dominated by those with legal training and experience, this should not be an exclusively legal affair.

Furthermore, consonant with the principle of de-politicisation, new Article 111(2B) seeks to preclude or minimise the politicised composition of the LSC. This Article is modelled on Article 106 of the Constitution which sets out the disqualifications for membership in the PSC. This principle is also applied to members of the soon-to-be created Personnel Boards of the Singapore Legal Service under the proposed new Article

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111AA(7). Article 111(2B) seeks to institutionally de-link LSC members from political influence, whether actual or perceptual. Article 111(2B) attempts to do so by precluding various categories of persons from becoming LSC members - thus, MPs, trade union members, office holders in political associations and employees of corporations, incorporated under existing laws, other than the Companies Act, such as an employee in a statutory body, are disqualified from LSC membership. Thus, the clear intent is that the process for nominating LSC members should, as far as is humanly possible, be freed from politics or that political influence is at least minimised.

The primary change is the vesting of powers to nominate LSC members in a new constitutional office, that of the Prime Minister, who is added to the current slate of appointing authorities alongside the Chief Justice and PSC Chairman.

Under this amendment, the Prime Minister will have the power, for the first time, to appoint up to two persons to sit in the LSC. This denotes a slight shift in political philosophy because the principle of de-politicisation, designed to shield a constitutional actor from what can be the gale-force of political influence, is somewhat modified.

Under the current system, the influence of the Prime Minister over the composition of the LSC is, in formal terms at least, indirect. Any influence has to be traced to the fact that the Prime Minister has a role in selecting various constitutional officers who sit in the LSC, as stipulated under Article 111, that is, the Attorney-General, Chief Justice and the PSC Chairman.

Under the amendment, the Prime Minister will be able to directly influence the composition of the LSC through exercising his new powers of nomination.

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In what sense does this development represent a shift in principle? Conferring upon the Prime Minister for the first time a formal role in directly selecting LSC members does import in some degree of political influence since the Prime Minister holds an elected office and heads the parliamentary Executive or Cabinet Ministers as the first among equals.

This might raise the concern, as it has done in the past, that it may be possible for the Executive to interfere with the subordinate Judiciary. This is because the LSC has jurisdiction over the appointment, transfer and dismissal of legal officers, including Subordinate Court Judges, who do not enjoy tenure under law. In all likelihood, the probability of such an occurrence may perhaps be remote but the possibility remains. One would however have to presume rather a lot of things to so conclude, including the assumption that the Prime Minister's nominees will not act independently of him but will do his bidding. Such possibilities may perhaps take up residence in the fertile imaginings of conspiracy theorists, but are unlikely to take root elsewhere. Nonetheless, from the perspective of constructing a system for the administration of justice, perceptions do count.

However, I would hasten to add that this new power of the Prime Minister must be appreciated in context. The Prime Minister's discretion in relation to composing the LSC is not absolute. Three factors are worth considering. Firstly, it is shared with the Chief Justice and PSC Chairman - he does not monopolise it. Secondly, this discretion is, in fact, limited by the constitutionally enumerated criteria defining the eligible pool of candidates which is designed to ensure that the LSC members have no formal political affiliations. As mentioned, MPs, trade unionists or other persons who might have political affiliations or formal links to the Prime Minister or a political

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party are expressly excluded from the selection pool. Lastly, the Prime Minister's power is itself subject to the checks of another organ of the Executive - the President. The new Article 111(d) will provide that the concurrence of the President, with the advice of the Prime Minister, Chief Justice or PSC Chair, as the case may be, in nominating his candidates is necessary to finalise the appointment.

The direct involvement of the President as a countervailing check in the exercise of the appointing power in relation to the LSC members is also a new development, but it is consistent with the President's constitutional mandate in relation to key civil service appointments. Currently, members of the Public Service Commission are appointed by the President, provided the President, in his personal discretion, concurs with the Prime Minister's advice. That institutional set-up is now brought into play with respect to the composition of the Legal Service Commission. Thus, there is an official process under which the President can bring his wisdom to bear on the subject and can utilise the power of non-concurrence to influence the process and to even thwart a nomination. This can be a valuable safeguard.

So, in formal terms, while a politicised element is included into the selection process for LSC members by giving the Prime Minister a direct power and ability to influence the composition of the LSC, the pool of candidates he may choose from must formally have no political links, which is a de-politicising measure.

This realignment of power which these amendments will bring about in relation to the selection process for LSC members is a manifestation of the principle of checks and balances and shows the separation of powers and operation. Previously, two important constitutional actors, the

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President and Prime Minister, the Head of State and Head of Government respectively, did not have a direct role in determining the composition of the Legal Service Commission. This will change with the Amendment Bill.

However, it is heartening that a series of checks and balances have been incorporated into the scheme, consonant with the constitutional design of existing institutions. Thus, the power of the Prime Minister or other appointing authorities is subject to the moderating influence of the requirement that the President's concurrence is needed to confirm the appointment.

The need for checks and balances harks back to the perennial twin problem of power: the need to empower Government to govern effectively, and the need to restrain power to curb abusive excesses to ensure Government is conducted fairly, while avoiding institutional gridlock and paralysis.

The function of Constitutions and the institutions and processes they establish is to channel power. As James Madison stated in The Federalist No. 51, governments are the greatest reflection of human nature. He said, "If men were angels, no government would be necessary." Checks and balances are not needed if governors are wise, benevolent and angelic; but it would be the height of folly to assume this to be a permanent fixture in human affairs. History and prudence teach us the need to have precautions set in place to deal with worst-case scenarios.

As this Constitutional Amendment Bill indicates, its framers are aware of the need to emplace checks and balances in our constitutional order - they do exist; the task ahead, as in all constitutional orders, is to ensure that such institutional

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safeguards work effectively for our common good.

3.58 pm

Mdm Ho Geok Choo: Mr Speaker, Sir, the Constitution provides the foundation upon which all other Singapore laws are promulgated. It is the mother of Singapore laws. Unlike my fellow parliamentarians who are celebrated legal talents, I am speaking as a lay person.

I want to take this opportunity to raise one observation and a few questions on the amendments tabled before us. Sir, clause 2 provides for the expansion of the membership base to include a maximum of two members to be nominated, each by the Chief Justice, the Chairman of the Public Service Commission and the Prime Minister. This makes for a maximum of six members to replace three members who include a Supreme Court Judge. Sir, in view of the concerns raised by my NMP parliamentary colleague, I think it is very important for DPM to further explain the rationale so as to ensure that people

do not in any way misconstrue the new structure to be a form of interference by the Executive in the legal process.

Sir, in reading clause 2, I also understand that the LSC membership might include lawyers with more than 10 years of experience in private practice. I welcome this inclusion, as it will no doubt expose the LSC to the best practices of the private sector and, hopefully, sensitise the LSC to the challenges faced by the private sector.

But, Sir, I also wish to enquire why such membership to the LSC did not include members of the academia. I would certainly imagine that these learned men and women of the law, whose activities include in-depth research, would provide the LSC with useful inputs into its deliberations as well as to its decision-making process. Also, coming from an

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academic domain, they may be able to provide fresh insights and perspectives to an issue that may elude practising members, whether from the public or private sector.

Sir, as a human resource practitioner, I warmly welcome the establishment of Personnel Boards for the LSC. Like any other organisations, the Singapore Legal Service faces the challenge of attracting, developing and retaining the best talents. Indeed, our goal so far as to say that the HR challenges of the Singapore Legal Service may be even more daunting, is that it needs to attract talents from a specialised discipline. We need to attract and keep the best legal eagles available to ensure the wheels of justice continue to work efficiently in Singapore. My colleagues before me, Mr Christopher de Souza and others, are such fine examples.

Sir, I am compelled to express some disquiet at the proposed amendments to the First Schedule, in particular, the shortened oaths of office for the Prime Minister, Ministers and Parliamentary Secretaries. The existing oaths are very specific on the duties and responsibilities of these officeholders, especially with regard to counsel and advice to the President and to the need for non-disclosure information. The new shorter oaths are curiously absent on these duties and responsibilities.

It is in the nature of law to be specific because the specifics provide the springwell of accountability. Some would say that the devil is in the details. I would like to enquire why these oaths of office need to be shorter. The existing oaths are only four paragraphs long, and I am sure reciting the existing oath is not onerous on the Prime Minister, Ministers or Parliamentary Secretaries.

4.03 pm

Ms Indranee Rajah (Tanjong Pagar): Mr Speaker, Sir, I wish to speak in support of

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the proposed amendments to the Constitution, in particular, the amendments to Article 111 of the Constitution which expands the composition of the Legal Service Commission, and, secondly, the amendment to insert a new Article 111AA to provide for the establishment of Personnel Boards under the Legal Service Commission for the Legal Service.

I have three main points.

(1) It is vitally important for the Legal Service to attract and retain top talent;

(2) The expansion of the membership of the Legal Service Commission to include appointees from the private sector is a step in the right direction that will help the Legal Service to attract and retain talent; and

(3) The establishment of Personnel Boards is also a progressive move that will enable more efficient HR management within the Legal Service.

On the first point, legal officers, being involved in the administration of justice as they are, have a direct and significant impact on the day-to-day lives of people in Singapore. In their capacities as prosecutors, registrars, district judges and as drafters of legislation, legal officers interface with ordinary people in almost every aspect of their daily lives. The work that the legal officers do and the decisions which they make can change the course of a person's life. As prosecutors, they make decisions on whether someone should be prosecuted for a crime, the way in which a matter is prosecuted determines whether or not someone goes to jail or is otherwise penalised. As registrars, magistrates and district judges, legal officers have to decide on cases. Their decisions affect people in a myriad variety of ways. Should a divorce be granted? Should maintenance be paid? Who gets custody

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of a child? How do you punish someone for the crime? Does he go to jail or probation? The adjudication of commercial disputes which, in turn, affects Singapore's reputation as an economic and financial hub?

Sir, the quality of our administration of justice and our ability to maintain our reputation in this regard depend very much on the quality of people that the Legal Service is able to recruit. Poor quality recruitment means poor administration of justice, something that we cannot afford. Under the Constitution, the Legal Service Commission is tasked with the appointment, confirmation, placement, promotion, transfer and dismissal of all officers in the Singapore Legal Service. In order to fulfill this task, the LSC has to be up to speed, not just with the developments within the Legal Service and Government but also with developments in the private sector, because the Legal Service Commission has to compete with the private sector in order to recruit and retain legal officers.

This competition should not be underestimated. We have a relatively small pool of legal graduates. Currently, our law graduates come from NUS, although the SMU graduates will come onstream in a few years. There are, of course, students with overseas law degrees, but these are also a relatively small number, due to the strict quality control requirements that have to be met in order to practise in Singapore. There is limited supply and, currently, there is a very high demand. And the LSC is faced with stiff competition for the recruitment of talent. Its competitors are not just the local law firms but also foreign law firms, companies which need inhouse counsel, and even employers from non-legal industries who nevertheless want legally-trained people for positions which are not law related. In this regard, I should

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declare my interest as a private practitioner and also the Recruitment Director of my company, because we are in direct competition with the Legal Service Commission, and we will do our utmost to attract and retain the top legal talent.

And it is not just about recruitment. It is also a question of retention. More and more, players in the legal industry are finding that getting in talent is one thing, but keeping it is quite another. And the Legal Service is no exception. Typically, in the private sector, we find that attrition tends to occur after about three to four years when people start to take stock of their careers and decide what they want to do for the future. In dealing with all these challenges in attracting and retaining legal talent, the Legal Service Commission has to be au fait with developments in the legal industry. This includes having to keep up not just with salaries but also understanding what attracts law graduates to join them and what people outside are doing to attract the same people.

Sir, the proposed amendment to Article 111 of the Constitution to allow for expanded membership of the LSC is a step in the right direction, because including or allowing the possibility of including people from the private sector or with personnel management backgrounds will better equip the LSC for its task of recruiting and retaining talent in the face of the fierce competition for talent.

This brings me then to the points made by Ms Sylvia Lim and Prof Thio Li-ann on the question of whether one should include the Prime Minister's nominations to the Legal Service Commission. A lot of noise and smoke have been generated by this discussion. But it is like a mirage in the desert. When you really examine it, you will see that there is nothing there.

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The first point is this. The suggestion is that a nomination of two people to the LSC by the Prime Minister will somehow politicise the work of the LSC. But what people forget - in fact, this was actually alluded to indirectly by Prof Thio - is that it is not the Prime Minister that appoints. The specific amendment and provision provides that the President appoints and he appoints, acting in his discretion, and it is only a matter of whether he concurs with the advice of the Prime Minister. The point to remember is this. Our President is not an appointed President. He is an Elected President. He derives his power, authority and mandate from the people of Singapore. And when he makes this decision, he makes it acting in his discretion and not simply because the Prime Minister requests him to do so. So, that is the first and overriding consideration to remember. This is not a political appointment. This is the Prime Minister giving advice to the President who acts in his discretion with a direct mandate from the electorate, the people of Singapore.

The second point is this. Ms Sylvia Lim has suggested that the Legal Service Commission should remain as it is. She is happy for it to remain as it is because she feels that the amendment, together with the proposed amendment for the appointment of the Prime Minister, would interfere with the independence of the Subordinate Court Judiciary. Let us examine the composition of the current Legal Service Commission. That is provided for in Article 111 of the Constitution.

Article 111 provides for five categories of people from the Legal Service Commission.

First, the Chief Justice, who is the President. Who appoints the Chief Justice? The Chief Justice is appointed under Article 95 of the Constitution. And guess what? He is appointed by the

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President, acting in his discretion on the advice of the Prime Minister.

Second, in Article 111(2A), the second member of the Legal Service Commission is the Attorney-General. The Attorney-General is appointed under Article 35 of the Constitution. And guess what? He is appointed by the President, acting in his discretion on the advice of the Prime Minister.

Third, the Chairman of the Public Service Commission. The Chairman of the Public Service Commission and the members of the Public Service Commission, who are actually appointed under Article 105 of the Constitution, are also appointed by the President, acting upon the advice of the Prime Minister. Under the current provisions, it would have been a Judge of the Supreme Court nominated specially by the Chief Justice. But, of course, Judges of the Supreme Court, like the Chief Justice, are appointed under Article 95, also by the President in his discretion, acting on the advice of the Prime Minister.

Of course, two members of the Public Service Commission, who, as we have already seen, are also appointed by the President, acting on the advice of the Prime Minister.

Sir, what I do not understand is this: why is it that it is fine to have the current Legal Service Commission all appointed by the President acting on the advice of the Prime Minister, but it is not all right to have two additional nominees nominated by the Prime Minister who would only be appointed if the President, acting in his discretion, decides to do so? Logically, it does not make sense. That is why I do not agree with the objections to having the Prime Minister add two nominations.

Next, we have no issue with the appointment of our High Court Judges whose reputation as administrators of

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justice not only in Singapore but internationally is a sterling one, and each and every single one of them is appointed by the President, acting in his discretion on the advice of the Prime Minister. If the quality of our High Court Bench is something that is internationally respected and renowned, then I see no reason why we cannot have the same procedure for the appointment of the Legal Service Commission which, in turn, obviously will decide who gets to enter the Legal Service.

The objections to these amendments also, I think, unjustifiably denigrade or take away from the people who are appointed, because it assumes that they will not act without fear or favour. It assumes that they will not act and carry out their duties in the best manner possible. But all these people who are appointed have, at least, as far as I can see, carried out their duties properly and with a full understanding of what is required of them.

So, for those reasons, I do not agree to the objections to the provision for the Prime Minister to nominate two nominees to the Legal Service Commission.

I move on now to the third point, ie, the Personnel Boards. The setting up of Personnel Boards is a progressive step. Recruitment in today's world is not just about hiring and firing someone. HR management is a much more complex process today than it was in the past. Now, apart from just paying competitive salaries, it involves a HR environment that takes into account the employees' aspirations for training, advancement, quality of life, work-life balance, continuing legal education, etc. It is almost a full-time function in itself, and this is what we in the private sector have to contend with and I do not think that the Legal Service is any

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different. So having a Personnel Board will allow for more efficient HR management in this respect.

I would, however, like to seek clarification from the Minister for Law as to what is meant by having one or more Personnel Boards having charge over different classes of Legal Service officers. What exactly is it meant by "different classes" and how would different Personnel Boards dealing with these different classes work in practice? I am concerned about a possible "silo effect" where each Board does what it likes, because there must be some consistency in dealing with the legal officers.

I would also hope that the establishment of Personnel Boards would allow the Legal Service to develop an overall structure that would allow legal officers to progress based on performance. From feedback that we get as practitioners - and I say that this is feedback as I do not know whether it is actually the case - it would appear that the type of Honours that a legal officer gets for his initial degree, ie, the LLB, pretty much determines not only his entry level but also his advancement for many years after. If this is so, then

it does not take into account late bloomers or those who may not be academically brilliant, but who have good practical skills, are dependable and get the job done. Progression based on the original university degree is actually markedly different from private sector practice where grades are only your passport to entry and that is all. Once you get in, in private practice, the clock is reset and all promotions and advancements are performance-based. I am not suggesting for one moment that academic grades and good performance are mutually exclusive. Usually, top grades are indicative of top talent. However, in practice, we do encounter people whose grades are not in the very top category academically, but

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they really come into their own, when given a practical problem to resolve - they deliver solid results. Grades should therefore not be the sole or major determinant for career advancement once a person gets into the organisation. As far as possible, there should be performance-based advancement and everybody should have the opportunity to shine.

In this regard, I see this issue of advancement depending on entry level as something I would call the "double helix staircase" syndrome. I am not sure if Members have had the opportunity to visit the Loire Valley in France. It is famous for its many beautiful chateaus built by the French Kings in the area. One of them is the Chateau de Chambord built in Loire by King Francis I. It is the largest castle in the Loire Valley and one of the most recognisable with its blend of medieval French and Italian architectural styles. It is well worth a visit, not on public funds, but on a private visit. But a cheaper option is to check it out on Wikipedia. But, anyway, I visited Chambord in my fourth year in law school before I started pupilage. And one of the most noticeable features at Chambord which I saw then, and which I still remember to this day, is the double helix staircase, the conception and design of which has been attributed to Leonardo Da Vinci. It is a rather remarkable design. Essentially, it comprises two spiral staircases, one built on top of each other. They twine round in parallel, from the ground to the third floor of the castle. So what it means is that you can have two people, each going up one staircase and they will never meet. One is always on top of the other and they are just going round until they emerge, and one is always at the lower level than the other. And from the point of entry, they are set on different paths. They also have different emerging points when they come out even though it is on the same floor.

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If progression within the Legal Service is largely dependent on the initial class of Honours, whether it is First Class Honours, for example, you are a JLC, then you will have this double helix effect where your entry point determines your progression and where you emerge, and it is not how fast or how hard you run up the stairs. That does not take into account the late bloomers or those who did not shine academically initially, but later on, are able to do well.

I would hope therefore that the establishment of Personnel Boards will allow things like this to be addressed so that, ultimately, we can have a stronger, more robust performance-based Legal Service and also one where legal officers can find satisfaction in their career development.

With this, I support the proposed amendments to the Constitution.

4.20 pm

Ms Sylvia Lim: Mr Speaker, Sir, I wish to clarify something which Ms Rajah had mentioned about what I said in my speech. At no time in my speech had I said that I was happy with the composition of the LSC, as far as it relates to the career progression of the Subordinate Courts judiciary is concerned. In fact, Members with a longer memory will know that it has been a consistent stand of the Worker's Party that the Subordinate Courts judiciary needs more security in its tenure and this is not a new argument that we are raising. We have raised concerns in the past about the present composition of the LSC because of the perception that they may not be promoting security of tenure as far as the Subordinate Courts judiciary is concerned because of the potential of transfer. So it is not quite accurate what Ms Rajah said about my speech earlier. Just to reiterate, the amendments that we are considering today give the Prime Minister a direct

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nomination role on the LSC. And I think Members will realise that this may have the perception of giving the public the opinion that the career progression of judicial officers is subject to the Executive assessment of their performance and this is something that will not strengthen the system, and my point still remains.

Ms Indranee Rajah: There is no reason why it should give anybody this perception of interference by the Executive if they read the amendments to the Constitution which provide that the appointment is by the President in his discretion and only if he concurs with the advice of the Prime Minister.

Mr Speaker: Order. I propose to take the break now. I suspend the Sitting and will take the Chair again at 4.35 pm.

Sitting accordingly suspended

at 4.15 pm until 4.35 pm.

Sitting resumed at 4.35 pm

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[Mr Speaker in the Chair]:

CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL: Debate resumed.

Prof. Jayakumar: Mr Speaker, Sir, I thank the Members who have spoken and I wish to respond to some of the comments and questions which they have posed.

Let me touch on points raised by Mr Christopher de Souza and also by Ms Indranee Rajah and then on points which were raised by other speakers. Mr Christopher de Souza asked about the separate Personnel Boards, whether there can be more than one Personnel

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Board. Of course, there can be more than one personnel board but, due to the small size and relative homogeneous nature of the Legal Service, I think it is unlikely to exceed two Personnel Boards. But the precise details of how many will have to be decided later. I also cannot give precise answers as to how they will be organised. But I think they are likely to be organised more by grade of the officers, that is, whether they are on the timescale or superscale grade, and not by departments that he seems to suggest. This is to ensure greater consistency and fairness in assessment. This would also, I guess, to some extent, address the silo effect which Ms Indranee Rajah talked about. In any event, the LSC will continue to serve as a check against silos being built up. It has the power to hear appeals from the legal service officers who may not be satisfied with the decision of any Personnel Board and to substitute its decisions for the board's. Following recommendations made by the Legal Service Personnel Management Review Panel which I mentioned, chaired by Justice Lee Seiu Kin, the LSC has also put in place now a Talent Management Scheme, a succession planning framework and other measures to address improvements, not just for the entire Legal Service as a whole, but also the needs of the individual arms of the Service.

Mr Christopher de Souza also asked about a larger financial budget so as to meet new demands. The changes, of course, will bring about a more robust personnel management framework, but I do not expect this to result in any significant increase in the budget. The amendments actually seek to institutionalise Personnel Boards which already exist today. But if additional resources are needed, I am confident that we should be able to make out a case for higher budgetary allocation to the Ministry of Finance.

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I agree with what Mr Christopher de Souza said about monopoly of talent. It is not the intention of the Legal Service to monopolise all the legal talent for itself. I refer to what Ms Indranee Rajah has said and I hope it is not the intention of the big law firms and the profession to monopolise all the legal talent for the profession. There has to be a fair spread. Like the rest of the civil service, the Legal Service must also have its fair share of legal talent if we are going to maintain a first-rate, top-class Legal Service.

Sir, I am afraid I have not followed in great detail the workings and recent events in the Competition Commission. I note the feedback of Mr Christopher de Souza on competition law and IP law, and on the specific issue concerning the Competition Commission. I will refer it to the Ministry of Trade and Industry. But I can agree with the general point that Mr de Souza made about the legal landscape changing, and changing very fast, and, therefore, a consequential need to invest in talent and to ensure that we retain the brightest in the Legal Service. I agree with him fully. This is the point I made in the Ministerial Statement last year, and this is one of the reasons why the panel and the study by Justice Lee Seiu Kin's committee was important to put in place a personnel management system.

I am very aware of the tremendous demands and challenges posed to the Legal Service as a result of these changes. For the past 19 years, I have seen how demanding these changes have evolved, whether it is in the drafting of Bills which come up to the House, whether it is the giving of legal advice on increasingly complex matters to different Ministries and to Cabinet, or in representing the Government, not just on domestic matters but, in recent times, on increasingly complex and important international law issues. The case we had with Malaysia on the reclamation issue is one and, later in the year, in November,

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the International Court of Justice will be finally hearing the arguments on the case concerning Malaysia's claim to Pedra Branca. For this, I have had discussions with the Attorney-General's Chambers for many years in developing the arguments. This is just one example of the kinds of changing demands and challenges which require the Legal Service to have very bright, competent and able people, leaving aside, of course, the need for the judiciary also to have bright and able people.

Ms Indranee Rajah asked about performance-based advancement. I think her point was that it should not be based on the type of Honours or class of Honours. I guess, like many other establishments which recruit fresh graduates, the results achieved in the university examination - class of Honours - often make a difference in the recruitment process. But after recruitment, the career advancement must and will be based on the performance and the merits of the officer's performance. Of course, in the Legal Service, as many of you know, many of the top legal graduates would prefer to work as Justice Law Clerks and they will be given the choice. This is not different from any other much sought after jobs in other parts of the civil service, or even the private sector. The important thing is that, after the initial deployment, the rate of progression will be determined and assessed on the actual performance of the individual officers.

If I may turn to the comments made by Mdm Ho Geok Choo, she referred to the comments of Ms Sylvia Lim on the appointment of LSC members. I will deal with that later. Another point she made was about LSC membership - why do we not include members of the academia? I am a former academic myself! Let me say that if she looks at the provision as it is drafted, it does not exclude consideration of members of the

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academia. It is not one of the disqualifications. I guess if we have a really outstanding member of the academia who is regarded as one who will bring a certain amount of expertise and experience to the Legal Service Commission, I am sure he will be considered. But the actual composition of the LSC will have to be worked out and made known when ready.

Then, she has a point about oaths of office. She said, I believe, that she had some disquiet over the shortening of the oaths because some phrases and wordings seem to have been omitted. Let me assure her of what I said in my Second Reading speech, that the substance and the essence of the oath is really not affected. I should explain and elaborate, if I may, that the oaths are not like a contract where there must be specific itemisation of legal rights and liabilities in order to operate as oaths. An oath actually is a solemn undertaking to conduct oneself and to perform his duties in accordance with whatever instrument that spells out his rights and obligations. The oath itself does not set out the substantive law of what are the Prime Minister, Ministers or Parliamentary Secretaries' duties and responsibilities. They are set out in the provisions of the Constitution - the duties, powers and responsibilities of the Prime Minister, Ministers, Parliamentary Secretaries and their relationship with the Legislature and with the Elected President. I would also add that Cabinet is, by Article 24(2) of the Constitution, collectively responsible to Parliament. I mention this because if she is concerned about the provision of secrecy, the secrecy of Cabinet discussions is actually the foundation of collective responsibility, and the secrecy of Cabinet deliberations and decision-making is recognised at law, because confidentiality is essential. It is not only

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in common law; it is so in other Commonwealth Constitutions.

Let me say that we have looked at the Constitutions of many countries in the world, and ours is one of the few which have such lengthy and outdated structure. On confidentiality, of course, I should add that there is also the Official Secrets Act.

If I may now turn to the points made by Ms Sylvia Lim. In her second intervention in response to Ms Indranee Rajah, she asked the House, especially those who have long memories, to recall that this issue had been debated in this House. Indeed, as she was speaking, I was reminded of a previous Workers' Party Member of Parliament, Mr Jeyaretnam, who made all sorts of allegations about our existing system and raised the spectre of Executive interference in the Subordinate Courts judiciary. And that led to not only a Commission of Inquiry into allegations of Executive interference in the Judiciary, it also led to a Committee of Privileges being constituted by Parliament, both of which found Mr Jeyaretnam was wrong and unjustified in making those allegations.

The difference, it would seem, is that, there, Mr Jeyaretnam made specific allegations of actual interference in the Judiciary but, in the process, he also cast doubt over the entire system. Ms Sylvia Lim, through her speech, is, in fact, resurrecting what, if I may borrow a term from Prof. Thio Li-ann, a conspiracy theory. But is this supported? Both Ms Indranee Rajah and Prof. Thio Li-ann have, in fact, in their speeches, provided the persuasive and convincing arguments which I would have used to rebut Ms Sylvia Lim; firstly, the Prime Minister, in nominating two Members of a nine-member enlarged LSC, is not doing something different from his many roles which Ms Indranee Rajah outlined -

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appointing Judges, the Chairman of PSC, members of PSC, the Chief Justice, all subject to the veto of the President, which is exercised in his discretion.

Secondly, the qualifications and disqualifications for his appointment or nomination are spelt out in the Constitution, and they are spelt out precisely in order to ensure that there are no formal political links.

I may add that not only the nominees of the Prime Minister but every Legal Service Commission member will have to take an oath of office. And that oath of office would have him solemnly swear or affirm that he will, freely and without fear or favour, affection or ill-will, give his counsel and advice in connection with any matter referred to the Commission, and that he will not directly or indirectly reveal any such matters to any unauthorised person. And there is a prohibition in the Public Service Commission Act, which is now going to be suitably amended to include the LSC, which also makes it an offence for any LSC member or PSC member to disclose information of proceedings of the Commission. In other words, Ms Sylvia Lim builds this spectre or prospect of Executive interference. But I have pointed out in my Second Reading speech that we have to do this - the enlargement of the LSC - so that the LSC, which has remained unchanged from the days of our independence, can be geared to deal with modern-day challenges, to bring in people who may have expertise and knowledge about how things work out in the private sector, about human resource management and development. They can bring this expertise and I think the LSC will be that much better and richer in handling personnel management relations. And, as I have explained, the Prime Minister retains overall charge of the civil service, of which the Legal Service is a part. And it is only logical and necessary that the

Column: 1080

Prime Minister has a role in nominating two members. But once he has nominated two members and they are appointed, his role ends there. Neither he nor the other nominating members - the Chairman of PSC or the Chief Justice - can in any way direct the nominees to act or to decide in any particular manner.

Once appointed, because of the oath and the functioning of the LSC, they take decisions in concert together with the other LSC members.

So, I am really surprised that Ms Sylvia Lim resurrects this spectre of possible Executive interference in the Judiciary. I had thought that was an old issue and am surprised that the leader of the party, Mr Low Thia Khiang, has not spoken on such an important issue. If Ms Sylvia Lim really feels that this is going to undermine the independence of the Judiciary, she has to tell us in what ways it is going to undermine the independence of the Judiciary, bearing in mind all the points that have been mentioned by me, Ms Indranee Rajah and Prof. Thio Li-ann. I think it does a disservice to our system. It does a disservice to our Legal Service Commission, and it does a disservice to our reputation.

Mr Speaker, Sir, at the end of the day, we can have any number of systems and any number of models. I know that the Workers' Party in its manifesto wants to scrap the present provisions for appointments of High Court Judges and Judicial Commissioners. They want to scrap the existing system to create a judicial service separate from the Legal Service. They do not want a transfer of members of the Subordinate Courts. In a small place like Singapore, how would it work? I have discussed with the Chief Justice and he is convinced, so is the Attorney-General, that, in Singapore, it is in the interest of the Service and the interest of Singapore to have Legal Service officers exposed to and trained in

Column: 1081

different fields of legal work. It must be so. How can you have somebody appointed as a Judge who has not had experience in prosecution? It is in the interest of our Legal Service, particularly when we have a small Legal Service, to ensure that over a period of time, there is sufficient exposure to different key branches of legal work that Legal Service officers have to handle.

But, at the end of the day, Sir, I come back to this point. As Law Minister, I have been to many Commonwealth Law Ministers' meetings and other Law Ministers' meetings where I have seen seemingly impressive papers presented by other delegations on their systems. Just as you can have any number of constitutions in the world, so too you can have any number of structures that you can think of for the Judiciary and the Legal Service. But the test is the integrity of the system of any model depends on the people who are operating the system and, most importantly, on the leadership in the Government and whether the Government respects the integrity and independence of the Judiciary. If that was not so, how would Singapore, year after year, have rankings from so many different surveying organisations which ranked our legal system and our system for administration of justice as amongst the top in the world? Not just in Asia, but in the world!

So, to Ms Sylvia Lim and others who are ready to raise the spectre of lack of judicial independence, let me say that our system works, and it has gained for us a very valuable reputation. That reputation can be maintained for so long as we get good people in the Legal Service and in the Judiciary and, I say, as important, good people in Government and in Cabinet who will ensure that this system of

Column: 1082

integrity and incorruptibility is maintained. That is the test, not whether you can create any number of structures. We have the system, it works, and we are now finetuning it to work even better, so we can retain good talent in the Legal Service. I say, let us keep what it works and let us not besmirch the reputation we have so carefully built up over the years.

Mr Speaker: The Question is, “That the Bill be now read a Second time.”

A Division will be taken to ascertain that the Second Reading of the Bill is supported by the votes of not less than two-thirds of the total number of elected Members of Parliament, which is 56 Members, pursuant to Article 5(2) of the Constitution. Ring the Division Bells.

After two minutes -

Before I proceed to start the electronic voting, Members are reminded that they are to press 'Present' on their electronic voting unit located at their left armrest, before indicating their vote. Those who fail to press 'Present' will not have their votes recorded. Voting will be open for 45 seconds from the time 'Voting in Progress' is flashed on the display board.

Members are also reminded to check their names and vote indications posted on the display board after the close of voting. If a Member is of the opinion that his vote has been taken in error or has been recorded wrongly, he may rise and request the Chair to have his vote taken correctly, provided that such request is made before the Chair declares the result of the division.

Question put, "That the Bill be now read a Second time."

Column: 1083

Division taken: Ayes, 75; Noes, 2; Abstention, Nil.

Ayes

|

Ayes (cont.)

---|---

Abdullah Tarmugi

Ahmad Mohd Magad

Ang Mong Seng

Baey Yam Keng

Balaji Sadasivan

Chan Soo Sen

Chong, Charles

Christopher de Souza

Fatimah Lateef

Fong, Arthur

Foo Chee Keng, Cedric

Fu Hai Yien, Grace

Gan Kim Yong

Goh Chok Tong

Halimah Yacob

Hawazi Daipi

Heng Chee How

Ho Geok Choo

Ho Peng Kee

Hri Kumar Nair

Inderjit Singh

Indranee Rajah

Iswaran, S.

Jayakumar, S

Khaw Boon Wan

Khor Lean Suan, Amy

Koo Tsai Kee

Lam Pin Min

Lee Bee Wah

Lee Boon Yang

Lee, Ellen

Lee Hsien Loong

Lee Yi Shyan

Liang Eng Hwa

Lim Biow Chuan

Lim Boon Heng

Lim Hng Kiang

Lim Siang Keat, Raymond

Lim Swee Say

Lim Wee Kiak

Low, Penny

Lui Tuck Yew

|

Mah Bow Tan

Masagos Zulkifli B M M

Mohd Maliki Bin Osman

Muhammad Faishal Ibrahim

Neo, Lily

Ng Eng Hen

Ng Phek Hoong, Irene

Ong Ah Heng

Ong Chit Chung

Ong Seh Hong

Palmer, Michael

Phua, Cynthia

Phua Lay Peng, Denise

Seah Kian Peng

Seng Han Thong

Sin Boon Ann

Tan Chin Siong, Sam

Teo Chee Hean

Teo Ho Pin

Teo, Josephine

Teo Ser Luck

Vivian Balakrishnan

Wee Siew Kim

WongKan Seng

Yaacob Ibrahim

Yao Chih, Matthias

Yeo, Alvin

Yeo Guat Kwang

Yeo, George Yong-Boon

Yu-Foo Yee Shoon

Zainudin Nordin

Zainul Abidin Rasheed

Zaqy Mohamad

Noes

Chiam See Tong

Low Thia Khiang

Abstention

Nil

Column: 1084

Mr Speaker: The Second Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of elected Members of Parliament.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Prof. Jayakumar].

Bill considered in Committee; reported without amendment.

Third Reading:

Mr Speaker: Third Reading, what day?

Prof. Jayakumar: Now, Sir, I beg to move, "That the Bill be now read a Third time."

Mr Speaker:

Mr Speaker: The Question is, “That the Bill be now read a Third time.”

A Division will be taken to ascertain that the Third Reading of the Bill is supported by the votes of not less than two-thirds of the total number of elected Members of Parliament, which is 56 Members, pursuant to Article 5(2) of the Constitution. Ring the Division Bells.

After one minute -

We will now take a Division. May I remind hon. Members to press the button marked 'Present' on the electronic voting unit before indicating their vote. Members may now begin to vote.

Question put, "That the Bill be now read a Third time."

Division taken: Ayes, 75; Noes, 2; Abstention, Nil.

Column: 1085

Ayes

|

Ayes (cont.)

---|---

Abdullah Tarmugi

Ahmad Mohd Magad

Ang Mong Seng

Baey Yam Keng

Balaji Sadasivan

Chan Soo Sen

Chong, Charles

Christopher de Souza

Fatimah Lateef

Fong, Arthur

Foo Chee Keng, Cedric

Fu Hai Yien, Grace

Gan Kim Yong

Goh Chok Tong

Halimah Yacob

Hawazi Daipi

Heng Chee How

Ho Geok Choo

Ho Peng Kee

Hri Kumar Nair

Inderjit Singh

Indranee Rajah

Iswaran, S.

Jayakumar, S

Khaw Boon Wan

Khor Lean Suan, Amy

Koo Tsai Kee

Lam Pin Min

Lee Bee Wah

Lee Boon Yang

Lee, Ellen

Lee Hsien Loong

Lee Yi Shyan

Liang Eng Hwa

Lim Biow Chuan

Lim Boon Heng

Lim Hng Kiang

Lim Siang Keat, Raymond

Lim Swee Say

Lim Wee Kiak

Low, Penny

Lui Tuck Yew

|

Mah Bow Tan

Masagos Zulkifli B M M

Mohd Maliki Bin Osman

Muhammad Faishal Ibrahim

Neo, Lily

Ng Eng Hen

Ng Phek Hoong, Irene

Ong Ah Heng

Ong Chit Chung

Ong Seh Hong

Palmer, Michael

Phua, Cynthia

Phua Lay Peng, Denise

Seah Kian Peng

Seng Han Thong

Sin Boon Ann

Tan Chin Siong, Sam

Teo Chee Hean

Teo Ho Pin

Teo, Josephine

Teo Ser Luck

Vivian Balakrishnan

Wee Siew Kim

WongKan Seng

Yaacob Ibrahim

Yao Chih, Matthias

Yeo, Alvin

Yeo Guat Kwang

Yeo, George Yong-Boon

Yu-Foo Yee Shoon

Zainudin Nordin

Zainul Abidin Rasheed

Zaqy Mohamad

Noes

Chiam See Tong

Low Thia Khiang

Abstention

Nil

Mr Speaker: The Third Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of elected Members of Parliament.

Column: 1086

Bill accordingly read a Third time and passed.