Parliament: 'When you have a small Bar and very small talent pool'

The Workers' Party yesterday made judicial independence the reason for not supporting an amendment to the Constitution tabled by Law Minister K. Shanmugam.

It was an odd move on the part of the opposition party. As Mr Shanmugam pointed out, the objections raised by Aljunied GRC MPs Sylvia Lim and Pritam Singh - both lawyers - had nothing to do with the amendment before the House, but were related to changes the WP wished the Government were making instead.

Any amendment to the Constitution - being the supreme law of the land - is a serious matter. To be passed, it needs the assent of not less than two-thirds of the elected Members of Parliament.

The key aspects of yesterday's amendment were to create two new judicial appointments, namely, International Judges and Senior Judges; and to introduce a gratuity plan in place of pensions for future holders of judicial and statutory appointments.

The first relates to the setting up of the Singapore International Commercial Court, as the Republic moves to realise its vision of becoming the leading dispute-resolution hub in the region.

The second follows from the Public Service Division's review of salaries last year.

These were clearly set out in Mr Shanmugam's speech.

But when Mr Singh joined the debate, he announced the WP's opposition to the Constitution Bill on the grounds that the party was uncomfortable with the change to allow retired High Court judges to be appointed on short terms as Senior Judges.

"This weakens a concept critical to judicial independence, namely, the security of tenure," he said.

The WP's view, as set out in its manifesto, is that the Constitution should instead be amended to extend the retirement age of Supreme Court judges from 65 to 70, with no prospect for extension thereafter, he said.

"While extensions and short- term appointments are administratively convenient," he added, "it is the Workers' Party view that they weaken the protective wall that upholds judicial independence.

"Under the existing regime, which this Bill re-enacts, it is conceivable that a judge past the retirement age may be retained by the Government because his or her judgments are 'safe' ones and acceptable to the Government, even as the Judiciary remains a separate organ of state.

"While I am not suggesting that this has occurred, such judgments may well be read as a signal by other judges who have not reached retirement age, as a factor that might determine the prospects for future judicial employment past the statutory retirement age or for a permanent appointment in the case of Judicial Commissioners."

A Judicial Commissioner or JC has all the powers and functions of a High Court judge but is appointed on a short tenure. Singapore's practice of appointing JCs dates back to 1979, when the Constitution was amended to allow for it.

Yesterday's amendment merely extended this practice to the appointment of Senior Judges.

Still, Mr Shanmugam chose to address the WP's concern over security of tenure seriously and factually, for which he is to be commended.

Currently, judges enjoy security of tenure up to the retirement age of 65. Should that be raised to 70?

In an ideal world, perhaps, he said, adding that on the issue of tenure, "fundamentally, we don't disagree".

"But the point is you have to take the profession as you find it and try and fit the rules to the best you can, and if you are too theoretical or too dogmatic about this, in the end you will not have had the judiciary that we have had with the outstanding reputation that it has," he said.

In 1979, Mr Lee Kuan Yew had explained to the House the need for JCs. Lawyers in private practice indicated - and they continue to indicate, said Mr Shanmugam - a preference for short-term appointments to the High Court bench, after which they could decide whether they wanted to continue or to go back into practice.

In 1986, former Chief Justice Chan Sek Keong became the first person to be appointed a Judicial Commissioner.

CJ Chan is "possibly the greatest jurist of his generation", Mr Shanmugam said, citing him as an example of an outstanding judge who started out as a JC.

The Law Minister also stressed the need to deal practically with the reality of "a small Bar, which is what we have, and a very small talent pool".

Therein lies a key difference between what those in Government find they have to do and what those in the opposition prefer they do.

All seven WP MPs voted against the constitutional amendment.

But it passed easily with 69 ayes, 11 more than the 58 needed, thanks to PAP MPs' strong turnout - the best the House has seen for some time.

lydia@sph.com.sg

This article was first published on Nov 5, 2014.
Get a copy of The Straits Times or go to straitstimes.com for more stories.