Sylvia Lim & Edwin Tong spar on splitting Attorney-General’s roles of public prosecutor & govt legal advisor – – News from Singapore, Asia and around the world

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During the Attorney-General’s Chambers (AGC)’ Committee of Supply Debate on Feb. 28, Workers’ Party (WP) Chair Sylvia Lim observed that the Attorney-General performed a dual role.

Currently, the Attorney-General acts as both public prosecutor and chief legal advisor to the government.

The Aljunied GRC MP suggested that the powers of the office should be split so that the public prosecutor is not the same person taking instructions from the government in non-legal matters.

“In this advisory role, the government is his client, and it is the government who will decide what should be done. The AG may have to take certain courses of action even if they go against his own advice.”

She also noted that the Attorney-General decides who should be charged, who should be “let off with a warning”, who should have their sentence reduced, compounded, and so on.

Lim contended that the Attorney-General was “more powerful than a High Court judge”, as he or she exercises discretion in private, and his decisions can’t be appealed against.

Public confidence in Singapore’s legal system and the AGC is high

In response, Senior Minister of State for Law Edwin Tong said the government agrees that public confidence in Singapore’s institutions is important.

He cited survey statistics referred to during the 2016 Committee of Supply debates, which showed that 92 per cent of respondents had trust and confidence in Singapore’s legal system, and that 90 per cent said they had trust and confidence in the AGC.

Tong said this trust did not come about by chance, and it was the result of “proven legal safeguards” and the integrity of those in the system.

“Dual-key” system to appoint an Attorney-General

The Attorney-General is also appointed via a “dual-key” system, Tong said, in that both the President and the Prime Minister must agree on the appointment.

Tong said this was a more “robust” system than countries like Australia and England, in which the officers in charge of prosecutions are appointed solely by a government minister.

Tong added that the Attorney-General is not a political office holder, which further reinforces the independence of the role.

This means they are not subject to political pressure when conducting independent exercise of prosecutorial discretion.

Lim suggested giving the Attorney-General “security of tenure”

Lim also suggested giving the Attorney-General security of tenure, such that they cannot be removed unless in exceptional or specific circumstances, instead of serving a fixed term as per the current system. She explained:

“The Constitution originally envisaged the AG to hold office until 60 years of age, and was later amended to allow AGs to hold office for a specific period. In the recent past, some AGs had held office for short terms of two to three years.”

Lim suggested referring to the term of office of the Auditor-General, which is six years.

But Tong said that it is “very difficult” to remove an Attorney-General in Singapore.

The stringent criteria involves getting the President, Prime Minister and a tribunal of three judges, which must include the Chief Justice, to all agree that the Attorney-General can’t discharge their functions, or that there has been misbehaviour.

Tong said that what drives Singapore’s decision “ultimately has to be output, performance, and the way in which the public retains and reposes confidence in the functions of the AG”.

Attorney-General has acted against highly-placed individuals

Although these safeguards are in place, Tong said that alone cannot maintain public trust, and the actions of the Attorney-General’s actions are also important.

Tong gave examples when the Attorney-General acted against individuals in high positions or who may have been well-connected, including actions against:

• A Minister of State.
• Sitting and former Members of Parliament.
• A former SCDF Commissioner.
• A former NKF CEO.
• A former Deputy Chief Executive of PUB.

Tong said by appointing individuals of the “highest calibre and integrity” within the broader legal system contributes to the public trust.

Should it be a matter of design?

In her follow-up clarifications, Lim referred to an article written by a former Attorney-General in the Straits Times in 2017 about “this issue”.

Lim appeared to be referring to this article, written by former Attorney-General Walter Woon, who called for the separation of the “two functions” of the Attorney-General.

Lim said Woon said the separation should be introduced into the system as a “matter of design”, not because of current issues, but to pre-empt future problems.

Lim added that while it was difficult to remove the Attorney-General, if they were appointed for a short term, they could leave the office after a short period of time and not be able to see through “certain matters that are of public interest.”

Lim also asked if Tong was acknowledging that there was a principle of the separation of the roles of the chief legal adviser to the government and the chief prosecutor in other jurisdictions.

Edwin Tong: The system is working

In response, Tong said that there were different systems in other jurisdiction, where Attorneys-General elsewhere are considered political office-holders and each country had to decide what works best in the local context.

He said that in Singapore’s context, “we look at it from the perspective of what the broad institutional protections are (for the Attorney-General) in terms of the appointment, in terms of the removal, in terms of the fact that they have no political affiliation, and hold no political office.”

Tong said that the “high-profile prosecutions” he mentioned earlier demonstrate that the system is working, and the fact that public confidence is high is clear from the surveys that have been done.

Top image from gov.sg YouTube Channel.