FEASIBILITY OF SETTING UP A JUDICIAL SERVICE COMMISSION FOR JUDICIAL OFFICERS

In November last year, I asked the Minister for Law & Home Affairs whether the Government was prepared to set up a separate Judicial Service Commission under the Constitution of Singapore. I felt then that such a move will allow our judicial officers to deepen their competence to keep pace with the ever more complex factual and legal issues that are being considered in the courts. The Minister’s reply then was that he felt the current integrated model under the Legal Service Commission which manages legal officers in the judicial and legal career tracks is probably the best for the time being. I filed a motion that was heard on 27 Jul 2021 to ask the Government to conduct a feasibility study to set up a separate Judicial Service Commission. Hon MPs, Mr Christopher de Souza and Mr Lim Biow Chuan also spoke in favour of my motion, In his reply, Minister Shanmugam agreed with my proposal and announced the set-up of a high level working committee co-chaired by Chao Hick Tin, SJ and Attorney-General Mr Lucien Wong, SC to conduct a feasibility study. I look forward to receiving the committee’s report in due course. My speech made in Parliament is reproduced below.

FEASIBILITY OF SETTING UP A JUDICIAL SERVICE COMMISSION FOR JUDICIAL OFFICERS

On 4 November 2020, I asked the hon Minister for Law and Home Affairs in this House about the merits of having a separate Judicial Service Commission (JSC) principally to deepen the competence of judicial officers. I am not alone in asking for the set-up of the JSC. Hon Members of Parliament from both sides of the House have made similar calls for a variety of reasons.

The hon Minister’s reply to my question was that in the current circumstances, the integrated Legal Service Commission (LSC) model that we have for the Legal Service is probably best for the time being.

I agree with the hon Minister that the integrated model served Singapore well. The LSC contributed indelibly to the upholding of the rule of law in Singapore. It ensured that our Judiciary is both independent and impartial.

Our Judiciary is held in great esteem not just within Singapore but also internationally. In a MinLaw Public Perception Survey conducted in 2020, 90% of respondents indicated that they had trust and confidence in Singapore’s legal system. Singapore was also ranked overall first out of 180 countries in the Heritage Foundation Index of Economic Freedom 2021 and was given a score of 90.8 for judicial effectiveness.

The upholding of the rule of law in Singapore has directly resulted in Singapore’s growth as an inclusive nation with good outcomes in education, opportunities for all irrespective of race, religion or gender, care for the less fortunate, cohesion amongst people and low crime rates.

What is good for today, however, may not be adequate for tomorrow. It is our work to improve our institutions over the years that has made us what we are.

The point we should consider today is whether the integrated LSC model, which has served us well, needs to be adjusted with regard to the evolving responsibilities that will be placed on the Judiciary in the future. The main arguments I make in support of this motion are as follows.

Considering the increasing factual and legal complexities of the cases presented in court, quickening the pace of specialisation amongst our Judges will better equip them with the skills, tools, especially technological tools, and experience to discharge their solemn duties consistently and at the highest standards.

A separate JSC with its own secretariat set up under the Constitution and vested with the power of appointment, control and human resource development of the judicial officers in the Singapore Legal Service will be in a better position to nurture a specialist corp of judicial officers.

Additionally, with the autonomous power to recruit, the JSC can exercise more flexibility and use a wider range of talents. For example, someone with experience in programming can be trained and taught law. Then, he or she can navigate the technical facts of a case much better than a legally trained judge. That is a deeper, more specialised approach to intentionally growing our judicial service.

Nonetheless, I must acknowledge that I make these points drawing from merely my own knowledge and experience as a legislator and a private legal practitioner. Hence, I am calling on the Government to study the feasibility of my proposal rather than presenting a specific case for it.

Let me now say a few words on the significance of my proposal on fellow Singaporeans.

Specialisation amongst judges should not mean higher costs for litigants. Rather, I have in mind is the opposite. With greater specialisation, our Judges will be more efficient and productive and in a position to further reign in legal costs.

The end state that I envision is a specialist judiciary that ensures that its decisions remain consistently of the highest quality and delivered with due despatch. Furthermore, it should allow litigants using its processes to be satisfied that they have been provided with good access to justice, their cases have been heard and they have been treated fairly and impartially.

Lastly, it is responsive and keeps abreast of fast paced developments, particularly technological developments, that are making cases more complex. One good example of a technological development arose last year when the Court of Appeal had to deal with novel legal issues arising in the world of cryptocurrency algorithmic trading.

A specialist Judiciary that can achieve all these will strengthen our public’s trust, confidence and respect in our legal system.

I now make the case for further specialisation of the Judiciary. I say “further specialisation” because the Judiciary has already developed specialist routes for some years now in response to the increasing complexity of cases. Let me cite some examples.

The Family Justice Courts were set up out of the recognition that family justice is a specialist discipline that requires specific focus and jurisprudential development. There have been dedicated specialist commercial lists in the General Division of the High Court in areas such as building and construction, finance, securities, insolvency and trusts, and arbitration.

As a private practitioner in active legal practice for some time now, it is clear to me that the Judiciary continues to hear and decide on more complex cases over the years. It is not easy to measure complexity of the cases in our Courts objectively but there are several proxies that can provide rough and ready guides.

In an article titled “The Development of Singapore Law: A bicentennial retrospective” by the hon Andrew Phang JA, Prof Goh Yihan SC and Prof Jerrold Soh, it is stated that the average reported judgment comprised 4,763 words in 2002. Now, the average count hovers around 11,000 words. This statistic is both for State and Supreme Courts judgments.

Between 2017 and 2020, based on my manual count, the Court of Appeal, the highest court of our land, has sat as a special five-judge bench about 45 times to deal with novel and complex issues of law.

There is also an upward trend of Singapore cases being cited and commented on overseas, including in the UK and Australian courts. This is an indication that our Courts are increasingly having to grapple with frontier legal issues. I will give three examples.

First, the UK Supreme Court had occasion to cite two decisions of the Singapore Court of Appeal in its 2015 judgment on requirements to imply a term in contract law. Next, the New South Wales Supreme Court in 2016 quoted observations of the Singapore High Court on the role of liquidators in legal proceedings. Finally, the 2017 Court of Appeal’s reported approach to the issue of damages arising from a birth of a healthy child through in-vitro fertilisation (IVF) as a result of a medical professional negligently fertilising an ovum using sperm from a wrong source, received much attention internationally.

So, our Judges carry out a key element of providing order in society, not just in Singapore but, at times, in other Common Law countries.

Our Legal Service has grown significantly, too, over the years. In 1965, our year of Independence, we had 45 officers. Today, this has increased 18 times to over 800 officers, of which, 30 percent are judicial officers.

In 2014, in recognition of the need to specialise, our Prime Minister announced the restructuring of the Legal Service which involved the introduction of two separate career tracks, judicial and legal, for Legal Service Officers, LSOs. However, the specialisation tracks are geared towards the middle ranks of the Legal Service. Junior and senior officers still operate under a fully integrated model, in respect of their career tracks.

Respectfully, given the requirements of the future that I have alluded to, I would think it is good to reconsider the central management of junior and senior officers deployed for judicial duties by the LSC.

It seems to me there is a need to plan for longer runways for the junior officers within specific career tracks leading to deeper specialisation. Even at the top, the senior LSOs in the Judiciary must devote time and effort to continually upskill themselves so as to keep up with the requirements of their jobs.

The establishment of a JSC with its own secretariat can help. At this point in our country’s development, there is also sufficient ballast in terms of the number of LSOs currently serving and expected to serve as judicial officers.

Madam, the proposal to split the LSC into a JSC and LSC is, admittedly, a complex issue. I would not pretend that I have dealt with all the issues in my short speech. Instead, all I seek to do is to make a case for this Government to agree to conduct a feasibility study on my proposal and revert to this House in due course.

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