SUPREME COURT OF JUDICATURE (AMENDMENT) BILL

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SUPREME COURT OF JUDICATURE (AMENDMENT) BILL: Order for Second Reading read.

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."

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This Bill seeks to amend the Supreme Court of Judicature Act to provide that in all family law cases heard in the Subordinate Courts, there will be an automatic right of appeal to the High Court, with a further appeal to the Court of Appeal only with the leave of court.

_Present position with respect to appeals in family cases
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Sir, at present, most family law cases such as divorce cases, applications for maintenance orders and adoption petitions, are heard in the Subordinate Courts. The High Court only hears contested applications for the division of matrimonial assets under Part X of the Women's Charter, where the assets are worth $1.5 million or more.

The parties in family law proceedings can currently appeal against an order made by the Subordinate Courts to the High Court and lodge further appeals against the decision of the High Court to the Court of Appeal.

Sir, in civil cases, there are some qualifications on the right to appeal to the Court of Appeal. Section 34(2) of the Supreme Court of Judicature Act provides that the leave of court must be obtained, for example, where the subject matter at the trial is $250,000 or less. In family law cases, it is not possible to quantify a divorce or custody matter in monetary terms in most cases. Hence, in practice, family law proceedings heard by the Subordinate Courts have two tiers of appeal as a matter of right.

Why there should be only one tier of appeal as a matter of right

These amendments were proposed by the Supreme Court to address an anomaly. With respect to civil proceedings (other than family law matters), which are

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heard in the Subordinate Courts, a party has, subject to certain statutory conditions, the right to appeal to the High Court. Leave is needed for a further appeal to the Court of Appeal. However, in family law cases, parties currently have the right to appeal from the Subordinate Courts to the High Court and then make a further appeal to the Court of Appeal, without having to seek leave. This is an anomaly which needs correction.

In the interests of finality, there should be only one tier of appeal as a matter of right for family cases, with a second appeal only with the leave of court. The general position in Singapore for civil cases, other than family cases, is only one tier of appeal as a matter of right. This is because having an automatic second tier of appeal delays a final decision on the matter and increases costs for litigants.

Family cases do not generally involve complex issues of law or matters of public interest. Most of the appeals in family proceedings before the Court of Appeal deal with disputes over the facts of the case. Such cases that involve disputes on factual matters, there is no need for more than one tier of appeal. As a matter of principle, the Court of Appeal's resources would be better utilised to deal with questions of law.

Where civil judgments of the Subordinate Courts are appealed to the High Court, leave is granted for a further appeal to the Court of Appeal if certain established principles are satisfied. Leave is usually granted where there is a prima facie case of error of law, a question of general principle to be decided for the first time or a question of importance upon which further argument and a decision of a higher tribunal would be to public advantage. With the passing of this Bill, similar principles will apply to appeals to the Court of

Appeal in family proceedings.

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_Proposed amendments
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The Bill will insert a new provision, in section 34(2), to require leave to appeal to the Court of Appeal where the High Court makes an order in exercise of its appellate jurisdiction with respect to any proceedings under the Adoption of Children Act or under Part VII, VIII or IX of the Women's Charter. Divorce proceedings, including division of matrimonial assets, summary applications to resolve disputes between husband and wife as to possession of property and proceedings under the Guardianship of Infants Act were originally heard by the High Court. These proceedings were transferred to the Subordinate Courts by a 1996 Order of the Chief Justice, made under section 28A. A new complementary provision will be inserted in section 28A of the Act to allow the Chief Justice to make such provision governing appeals relating to proceedings transferred to the District Court, including provisions to restrict the right of appeal. The Chief Justice intends to specify by Order that leave to appeal to the Court of Appeal is required in family proceedings transferred to the District Court for hearing in the first instance. Lastly, a new provision will be inserted under section 34 to clarify that where family law proceedings are heard by the High Court in the first instance, the monetary limit in section 34(2)(a) does not apply to an appeal to the Court of Appeal.

Sir, I beg to move.

Question proposed.

Mr Chiam See Tong: Sir, my complaint is against clause 2 of the Bill. This clause makes an amendment to the principal Act whereby the Chief Justice is given the discretion to stop an appeal, amongst other provisions, which he can make when a case is transferred to a District Court. As an Opposition Member, I cannot allow, consciously, the legislature

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to diminish the rights of a litigant, especially the right of appeal. A litigant must be allowed, all the way, to exhaust his remedies in a court of law. How else can he seek justice except in a court of law?

Take the case of the former Deputy Prime Minister of Malaysia, Mr Anwar Ibrahim. If he were not allowed to appeal, he would not have a chance to clear his name in respect of the sodomy charges levelled against him. He appealed against the charges and he succeeded. He was released pending the hearing of his appeals against other charges which he was convicted of in the first instance. After successfully appealing against the sodomy charges, he, at least, was temporarily released so that he could go to Germany for his medical treatment, and also an opportunity to reunite with his wife and members of his family. If he were not allowed to appeal, as we are now legislating here in Singapore, he would still be tainted with the sodomy charges and would still be languishing in prison without the benefit of getting medical treatment and reuniting with his family and friends.

Sir, I know that the policy of the courts, since the 1990s, has been to administer the judicial process swiftly and efficiently. Much of the backlog of cases has been quickly dealt with. The aim in the courts is, of course, to complete a case within 12 months under the workplan to administer the courts implemented by the Chief Justice.

Although I applaud the courts' policy in promoting efficiency and cutting out delays in the cases that are brought before the courts, I am of the view that efficiency in our courts cannot be achieved at the expense of the rights of the public. A member of the public has the common law right of seeking justice to its ultimate end. One famous English

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judge said, "Justice must not only be done but seen to be done."

Under the amendment in clause 2, how can justice be seen to be done in Singapore when the right of appeal is eventually not even accorded to a litigant?

I also wish to mention that these days, the sentences meted out in appeals heard before the Chief Justice are not always more lenient. On the contrary, we have read in the papers that sentences on appeal before the Chief Justice can be double. And when the sentences involve caning, doubling the sentence can be a very painful experience. So the sentences meted out on appeal is a deterrent to those defendants with frivolous appeals without any merit. Those defendants normally are advised by their solicitors not to appeal, and they normally take heed of the advice of their lawyers. The sentence in the appeal in the High Court is a strong deterrent on would-be appellants with frivolous appeals, and those appellants would normally give up the idea of appealing before the Chief Justice. In this way, there is no fear of taking up the court's time.

Sir, this amendment involves the taking away of a litigant's right of appeal. To me, this is an important amendment, and I say that there should be further discussion on it. I therefore call on the Minister to place the Bill before a Select Committee and let the public have their say on the matter.

Prof. Jayakumar: Mr Speaker, Sir, I think Mr Chiam has come here with a prepared speech which he had to deliver. But had he listened to what I said in my Second Reading speech, he would have realised that the thrust of his points is misconceived and totally unwarranted.

The thrust of his complaint about clause 2 and about the Bill is that somehow the inherent right of appeal has

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been dismembered or suppressed. But that is not the case. As I took pains to explain, this situation covers a category of family law cases which, at one time, was heard in the High Court, but they are now heard in the Subordinate Courts because they were transferred by order of the Chief Justice. Had they not been transferred to the Subordinate Courts, the parties, in these cases, would have one tier of appeal - from the High Court to the Court of Appeal. They have now been transferred to the Subordinate Courts. And in all civil cases heard in the Subordinate Courts, in the first instance, there is a right of appeal only to the High Court, and there is no further automatic appeal as a matter of right to the Court of Appeal. It is by leave of the court. Therein lies the anomaly. As I said, for this category of cases which originally the court of first instance was the High Court, now, because they are transferred to the Subordinate Courts, the Subordinate Courts hear them in the first instance. The anomaly was not rectified. They have a right of appeal to the High Court and right of appeal to the Court of Appeal without leave. So there is an anomaly.

But let me add that there is no curtailment of the right because he has the recourse of appeal to the Court of Appeal, but with leave. And the statistics in the Supreme Court show that in most cases where it involves questions of law or allegations that an error of law has occurred, the court does grant leave. So there is no injustice and there is no suppression of the inherent right of appeal. It is to bring this system in line with the prevailing system for all other civil cases. So all the spectre of injustice that he raised here, including analogy with Anwar's case, is totally misconceived. It was a fairly good speech but for a wrong occasion!

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Mr Chiam See Tong: Sir, I am sorry that my reading of the Explanatory Statement seems to differ from the Minister's reading of it. To clarify my point, I just read this statement and see whether the House thinks I am right or the Minister is right:

"Clause 2 amends section 28A(2) to empower the Chief Justice, when making any order for the allocation of proceedings to the District Court under the section, to also make such provision governing appeals relating to such proceedings as he thinks fit, including provisions restricting the right of appeal."

As I understand it - if I can still remember my procedure - some cases can be tried in the High Court but they are transferred to the Subordinate Courts. Under these circumstances, we are giving the Chief Justice legislative power to make certain provisions limiting probably the number of witnesses or the time, but including in that provision is the stoppage of the right of appeal. That is my understanding of this section, unless I am wrong. So the right of appeal, under these circumstances, is that the litigant is denied of the right of appeal.

Prof. Jayakumar: Mr Speaker, Sir, all I need to say is that he has to read that provision in the context of the totality of the Bill and also with regard to the intent of the Bill, as I have explained in my Second Reading speech. If the Member thinks that this provision entitles the Chief Justice to completely prevent a litigant from making any appeal, that is obviously not a correct reading of the provision and that is certainly not the intent of the Bill.

Mr Chiam See Tong: Sir, as I understand it, the right of appeal can be stopped by legislation, and this is exactly what we are doing. We are legislating to deny a litigant a chance of appeal. Parliament can stop a court from giving that right of appeal, and this is what we are doing, and this is my fear.

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Prof. Jayakumar: Mr Speaker, Sir, I can do no more than to state and reiterate that that is a misreading of the Bill and that is not the intent of the Bill. And may I take this opportunity also to say that the second part of his speech where he went on sentences of the court, I think this had been dealt previously on other occasions by my colleague, Senior Minister of State Assoc. Prof. Ho Peng Kee. But if he wishes to make an issue of this, he is free to file a Question for Oral Answer or an adjournment motion where we can thoroughly go into that matter. But that is irrelevant to the Bill in question.

Mr Chiam See Tong: Sir, I think the Minister brings up the issue of sentencing. I only brought it up because it is a deterrent for people making frivolous appeals, because the sentencing in the first instance appeal is quite stern.

Prof. Jayakumar: If Mr Chiam says, in his own words, it is intended to discourage frivolous appeals, I say, indeed, the Court is right to try to discourage frivolous appeals.

Question put, and agreed to.

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; read a Third time and passed.