SPEECH ON THE PUBLIC DEFENDERS BILL

On 1 August 2022, Parliament passed the Public Defenders Bill. With this, persons with limited means facing criminal prosecution, will be able to legal representation from the Government. This is a significant development and is a further step taken to ensure that everyone, irrespective of their economic background, will have access to justice.

I spoke on the occasion of the 2nd reading of the bill. In my speech, I traced the evolution of the Government’s stance on providing criminal legal aid. I highlighted that to ensure that the aim of the bill is met, we need to ensure that the Public Defenders are competent and of high quality. We also need to ensure that the Public Defenders’ Office are adequately resourced. I provided several suggestions in this regard.

My speech may be accessed below.

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Mr Deputy Speaker, Sir, hon Members will recall the marathon debate on the criminal justice system Motion moved by my honourable friends across the aisle, Ms Sylvia Lim and Ms He Ting Ru, on 4 November 2020.

In my speech during the debate, I said that our society has and continues to be strongly anchored in the rule of law. I observed that since Independence, great strides have been taken to improve the administration of justice in Singapore. I acknowledged, however, that further work needs to be done in our quest to ensure that such administration is accessible to all.

This arena will always be a work in progress. For new proposals to be implemented, there is a need to strike a balance between the interests of the crime victims, accused persons, members of public and effective marshalling of public resources.

The introduction of this Bill represents an important development in this quest. It formalises the arrangement for provision of legal representation by the Government to accused persons of limited means in criminal proceedings. This is to enhance access to justice for these vulnerable persons. I believe this is a development that hon Members from both sides of the House would welcome.

It is also noteworthy that the Government’s position on the issue of providing legal aid to accused persons in criminal proceedings has evolved over the years. Let me trace this evolution.

Twenty-seven years ago in this House, the hon Minister for Law then, Prof S Jayakumar, stated in unambiguous terms the Government’s original position that it was incongruous for the state to fund the legal defence of accused persons.

He said that accused persons are only brought to book after a thorough and careful process. He went on to state, “Why are they prosecuted? They are prosecuted in the public interest and the state expends these monies in the public interest and in order to protect the law-abiding majority… It is incongruous and inconsistent that public funds should be used to defend an accused person which the state has decided ought to be charged in Court and use public funds at the same time to get him off. The exception is where life is involved and for capital cases, counsel is assigned.”

The Government’s position changed in November 2013 when it announced its decision to fund the Criminal Legal Aid Scheme, a volunteer scheme run by the Law Society since 1985 to help indigent accused persons.

At the launch of this funding programme in 2015, the hon Minister for Law stated that, “This represents a significant shift in the Government’s philosophy.”

But there remained the issue of the model. Which model serves us best?

In 2006, the hon Minister Indranee Rajah, then a backbencher, put it pithily. She said in this House, “It just seems a little odd that for something as serious as a criminal charge, these persons would actually have to defend on a volunteer scheme.” She then called on the Government to extend legal aid to cover criminal matters as well.

Sixteen years later in April 2022, the hon Minister for Law finally announced the Government’s decision to set up a Public Defender’s Office for indigent accused persons in certain criminal proceedings that will be -funded by the Government. This was described as yet another significant shift. This Bill was then introduced in July 2022, after extensive consultations.

I applaud this move. We agree that on the point of fairness, access to justice cannot be denied to those who cannot afford it.

Can I ask the hon Senior Parliamentary Secretary for some data relating to accused persons who have legal representation and those without? As a percentage of the cases prosecuted by the state, how many have legal representation and how many do not? Where the accused persons claim trial, what is the percentage of success in terms of acquittal for those who have legal representation and those who do not?

I am aware that this is a crude piece of data. The difference in the acquittal rates is a function of many factors, of course, but one wonders to what extent this is due to the lack of a professional defence presented for some of these cases.

In any case, we should have this data as a point of comparison and to revisit this after the PDO has had time to run once this Bill is passed. The Government will then be able to gauge what other considerations that it may have to monitor compliance with the policy objectives of the Bill.

In addition to the duty to ensure access, the Government also has a corresponding duty to maintain fiscal prudence. The basic point Prof Jayakumar made about the need to ensure fiscal sustainability when committing public resources is something we must continue to bear in mind in structuring this new office of the PDO. It does cost serious money to fund the defence of accused persons and we heard the hon Senior Parliamentary Secretary mention about the Hong Kong experience just now.

We all agree that the setup of the PDO and the provision of criminal aid to indigent accused persons is a commitment we have to make to enhance the rule of law in Singapore. This is a cost that we are collectively prepared to incur in priority to other needs.

As responsible Members of Parliament, therefore, we will have to bear this commitment in mind when we make a case for our Government to commit further public funds in other areas.

Let me now turn to the proposed workings of the PDO. For us to ensure that indigent accused persons are provided with good quality representation in criminal proceedings, we need two things: first, adequate resources; and second, competent public defenders.

Dealing with the second issue first, may I ask what steps are or will be taken to ensure that the public defenders consistently provide a good quality representation to indigent persons? I would also like to offer several suggestions on this matter.

First, in my research, I have come across models in other countries where committees consisting of independent and eminent legal experts are set up with a view to regularly audit the work of the public defenders. I wonder if the hon Senior Parliamentary Secretary is minded to follow suit.

Second, in some countries, the PDO publishes annual reports providing information on its key performance indicators. In fact, this is mandated in some pieces of legislation that provided for the set-up of the equivalent of the PDO. I recommend that this practice be followed too.

Turning to adequate resources, the hon Minister for Law in his April 2022 speech cautioned against following the examples in several countries where escalating costs eventually had the effect of undermining the very objective of setting up the PDO in the first place.

I fully agree. We need to strive to strike an appropriate balance. In this regard, I support the Ministry’s intent to cover accused persons in households with a PCHI of $1,500 or lower. At the 35th percentile, these households would basically have little excess income that can be used for payment of legal fees.

What we need to ensure is that PDO is adequately staffed to ensure that it can handle the expected volume of cases that will be generated. May I ask the hon Senior Parliamentary Secretary what are her plans to ensure this?

There is also another aspect of providing other defence resources which I wish to touch on.

Regularly, in criminal cases, there is a need to procure public documents which are ordinarily subject to payment under the Fees Act. Examples include the First Information Report, Traffic Accident Reports and cautioned statements of the accused.

There is also a need to procure expert evidence such as medical opinion, handwriting expert opinion and so on.

May I ask what is the plan to procure such support for the PDO such that costs can be managed?

In particular, one issue I am concerned about is where the Government has provided resources to the Prosecution, say in form of a psychiatrist, from IMH or the College of Psychiatrists, to opine on the state of mind of the accused. Would the Government be willing to share similar resources with the PDO?

It seems to me that waiver of fees and sharing of resources will have the salutary effect of bringing down the costs of defending the accused. I therefore would like to encourage the Government to explore this idea.

One practical point which I wish to offer is whether the Prosecution and PDO can explore, in appropriate cases, the joint appointment of experts that will bind both sides. This trend is already being promoted in the Civil Courts.

One concern I have though involves the issue of timing. Usually, the Prosecution may have already dealt with these issues even before an indigent person is charged in Court. However, the indigent accused person may only be entitled to criminal defence aid from the PDO after being charged in Court.

In other words, there may not be an opportunity to make a joint appointment in the circumstances I outlined.

It seems to me that having the PDO involved earlier in certain cases may allow for better cost management. I seek the hon Senior Parliamentary Secretary’s views on this.

Finally, I turn to the provisions in the Bill. I wish to make three points.

First on the definition of “Court” appearing in clause 2 of the Bill, I note that it is widely defined to include any Court of competent jurisdiction before which any “proceedings” are heard.

“Proceedings” is defined as proceedings mentioned in clause 8(1) or 12(8) of the Bill which deals with circumstances in which a grant of aid may be issued. In clause 8(1), it is provided, amongst others, that a grant of aid may be issued in respect of any “criminal proceedings” instituted in respect of an offence.

So, what constitutes “criminal proceedings” is not specifically defined. As a matter of statutory interpretation, it should be interpreted in a manner that promotes the aims of this Bill. Potentially, this may also include proceedings involving military offences in the Subordinate Military Courts and the Military Court of Appeal set up under parts 5 and 7 of the Singapore Armed Forces Act 1972.

It may also potentially include proceedings under part 7 of the Industrial Relations Act 1960 for contempt in the Industrial Arbitration Court set up under the same Act.

May I please confirm with the hon Senior Parliamentary Secretary that Government’s intention is to restrict the provision of Criminal Legal Aid to accused persons facing criminal proceedings in the State Courts and the Supreme Court?

Second, may I ask how will the PD deal with an accused with mental illness? As can be imagined, the PD can face formidable challenges when he is instructed to act for an accused with mental illness. He needs to ensure that he is authorised to act for the accused. He needs to take instructions on the conduct of the case as well as provide advice. The question is who should be the proxy for the accused in these circumstances?

In other jurisdictions, there are specific provisions that will enable a PD to be empowered to act for and take instructions on behalf of a mentally ill accused through a Court appointed guardian or intermediary.

From my perusal of the Bill, although there are provisions dealing with applications for the grant of criminal defence aid to a minor, there are no similar provisions dealing with persons with mental issues. This is, with respect, a little bit incongruous, because there is no legal difference in the situation between a minor and a mentally incapacitated person in that both of them cannot act on their own.

I seek a clarification from the hon Senior Parliamentary Secretary as to how she proposes that the PDs deal with accused with mental illnesses in the absence of the empowering provisions in the Bill.

Finally, I note that under clause 16(1) of the Bill, it is proposed that the Chief Public Defender may cancel a grant of aid in prescribed circumstances.

I take it that it is proposed that the prescribed circumstances are to be provided in subsidiary legislation. If I am right, may I ask the hon Senior Parliamentary Secretary to outline the prescribed circumstances she has in mind for the purposes of cancellation of the Grant of Aid bearing in mind the aims of this Bill.

Once this Bill is passed, the Government will both prosecute and defend its citizens — there will be no contradiction if we see both acts as necessary for the pursuit of justice and protection of the public good.

Of the two functions, we need to see that the prosecution of persons who do harm as mainly driven by the pursuit of public goods such as safety, peace and security. The public prosecutors are not vengeful vigilantes but impartial officers of the state. So too are public defenders. They are not activists or lobbyists for specific causes, but advocates presenting the best defence possible for their clients. They are driven by the fairness of due process, which includes the exercise of mercy and compassion — a point that the hon Senior Parliamentary Secretary made admirably in her speech.

Together, these officers — prosecutors and defenders — make for a true commitment to the rule of law in Singapore. Sir, I support the Bill.

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Murali Pillai

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