EFFECT OF THE COURT’S DIGITAL TRANSFORMATION ON LITIGANTS IN PERSONS AND ACCUSED PERSONS INCARCERATED IN PRISON; AND CODIFYING THE COMMON LAW POSITION THAT THE ATTORNEY-GENERAL IS THE GUARDIAN OF PUBLIC INTEREST.

The Courts (Civil and Criminal Justice) Reform Bill sought to: 1) Entrench the digital transformation of the Courts; and 2) enable the Attorney-General to more quickly intervene in civil court proceedings to safeguard public interest.

I spoke in favour of the Bill during its second reading in Parliament on 13 Sep 2021. One silver lining to the Covid-19 pandemic is that it has hastened the digital transformation of the administration of justice in Singapore. We have experienced productivity gains by adopting remote hearing procedures that were put in place last year after the Circuit Breaker period. I supported the Government’s objective to permanently entrench the Court’s pivot to the utilization of technology that enabled all stakeholders in the administration of justice to continue with their important work. In my speech, I asked how litigants in persons and accused persons in prison will be supported so that they are not left behind. With respect to the 2nd point, I noted that, as a matter of common law, the Attorney-General is recognized as a guardian of public interest. Hence, he has the standing to intervene in civil court proceedings. I suggested that this standing be codified in the Constitutional provisions dealing with the Attorney-General’s responsibilities.

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I rise in support of the general aims of the Bill which, inter alia, are to support the digital transformation of the Courts and to enable the Attorney-General to safeguard public interest in Civil Court proceedings.

On the first point, one silver lining to the COVID-19 pandemic is that it has hastened the digital transformation of the administration of justice in Singapore.

Thanks to the efforts of MinLaw, which is led by the hon Minister Edwin Tong, which launched the Legal Industry Technology and Innovation Roadmap in October 2020, law firms are supported in their endeavour to develop legal tech solutions, manage and mitigate risks that come with increasing digitalisation and benefit from the eCourt model, which has enhanced functions such as system integration, speech to text technology and leverages on AI.

The Courts transformed quickly to regain lost ground in terms of lost hearing days arising from the circuit breaker in April and May last year when it pivoted to remote hearings.

I would like to draw from my own experience over the past year. I have attended numerous virtual Court hearings and online dispute resolutions as counsel.

The productivity gains and cost savings arising from the usage of digital platforms are significant and acknowledged by all Court users. Hearings nowadays are also more focused in that the parties would have made full written submissions and the Courts, at all levels, would generally take the lead in asking pointed questions of counsel before making decisions.

All these translates to efficiencies in the administration of justice and provides litigants with higher value.

For these reasons, I fully support the move to enact a permanent framework that will empower the Court to conduct remote hearings or even paper hearings. This will ensure that these hard-won costs savings and productivity gains will endure beyond the pandemic.

One concern I have though is how to ensure that litigants-in-persons (LIPs) who may not be familiar with or do not have access to video conferencing technology or have concerns about expressing themselves in writing are not disadvantaged by remote or paper hearings.

The hon Chief Justice in his address in the Opening of the Legal Year this year sounded a cautionary note on the impact of technology on such persons. He said, “As we embrace and explore the greater use of technology, we must remain keenly sensitive to the needs of Court users who are less technologically equipped or inclined and ensure that technology is an enabler rather than an impediment.”

In light of the Chief Justice’s observations, may I please ask what measures will be put in place to help LIPs so that the interests of justice would be met?

The hon Minister did mention that the raison d’etre of Court proceedings would be to ensure fairness. Clearly, at one level, the remote hearing requirements can waived for LIPs. But I am just wondering whether there could be avenues for LIPs to learn how to have access to remote hearings, how to use the remote hearing functions or even draft submissions for paper hearings.

Another associated question I have is with respect to the intention to allow accused persons to appear and give evidence remotely from prisons.

Again, conceptually, I have no issue. May I ask, however, how is it being proposed in such situations where they would continue to have access to their lawyers during these proceedings? How is it being proposed that conversations between the accused persons in prisons and their counsel joining in from another location in the course of remote proceedings will be kept strictly privileged and confidential?

I now move to my second point on the matter of the AG’s right to intervene in Civil Court proceedings.

I note that the provisions dealing with the right is premised on the standing of the AG as a guardian of public interest under Common Law. This standing does not stem from the duties of the Attorney-General as set out in article 35 of the Constitution.

I am aware that the AG’s standing as the guardian has been recognised by the Court of Appeal on several occasions. Notwithstanding that, it seems to me desirable that the AG’ role as the guardian of public interest should be codified in our Constitution.

As acknowledged by the Court of Appeal, the AG’s office is a high constitutional office equal in status to the judiciary. His power over prosecution stems from a constitutional grant under article 35(8) of the Constitution. His role as the Government’s legal adviser is also constitutionally entrenched.

It is also important to entrench his role as the guardian of public interest so that whatever steps he may take to safeguard public interest in civil proceedings is derived from an exercise of a power that is not only independent but constitutionally protected. In this way, his power cannot be trumped by ordinary legislation.

My other questions are on the mechanics of the two-step procedure that is being contemplated when the Attorney-General applies to intervene.

Sir, I note that at the first instance, the Attorney-General here is proposed to be permitted to apply to the Court to intervene without notice to other parties. In the event the Court allows the AG’s application, then at the second instance, parties may apply to set aside the intervention.

May I please ask when the Attorney-General applies at the first instance, does he have a duty of full and frank disclosure?

As the hon Minister who spent a lot of time in private practice would be aware, such responsibility is usually assumed by litigants making Court applications without notice and to some extent, it may address some of the concerns expressed by the hon Leader of the Opposition as well.

On the twin threshold questions of (a) whether a question of public interest has arisen and (b) whether it is necessary in the public interest for the AG to intervene, I seek clarification as to what is meant by the words “has arisen”.

Sometimes, public interest issues may be not part of the key issues as framed by the private parties to the proceedings.

There could also be a situation, as was discussed in the Court of Appeal case of ARW vs Comptroller of Income Tax, where the core decision of the Court may not trigger a public interest issue although the issue may have been discussed but not, perhaps, germane for the disposal of the case.

My next question is whether it is intended that when a Court decides that it is necessary for the AG to intervene, it would still have a discretion to consider all factors which are relevant to the balance of justice in the particular case, before it makes its decision whether or not to allow the intervention.

This is the power that is provided for with the Courts under the Rules of Court when hearing the usual joinder applications. I seek the hon Minister’s clarification as to whether it is intended that the same approach will apply to the AG.

Sir, I would like to conclude now. My two points may appear separate but they are, in fact, intertwined. The first relates to a key moral imperative, that in the administration of justice, the means of administration must not disadvantage any group. This speaks to the principle of fairness as put by the hon Minister. My second point is also a moral imperative, that in the administration of justice, the source of power for the guardian of public interest, the hon AG, must derive, not just from Common Law, but from the highest law of the land, our Constitution. This speaks to the need for legitimacy. I welcome the hon Minister’s views on my suggestions. With that, I support the Bill.

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Murali Pillai

Member of Parliament, Bukit Batok SMC, Advisor to Bukit Batok SMC GROs.