The Attorney-General's Chambers has been critical in helping Singapore uphold the rule of law, Prime Minister Lee Hsien Loong said last Friday at a dinner to mark the chambers' 150th anniversary. Below is an excerpt of his speech.
When the Attorney-General's Chambers(AGC) celebrated 100 years of its existence in 1967, it had no time to celebrate.
Singapore had become independent less than two years earlier and we had too much on our plate. We were finding our way forward, building a nation, creating institutions that would help us survive in an uncertain world. Fifty years have since passed. Singapore has not only survived, but prospered. One fundamental factor is that we have upheld the rule of law and built a fair, respected and efficient legal system.
What does the rule of law mean? It means everyone must obey the law, and everyone will be treated equally under the law, whether he is an individual or the Government. Individuals can get redress for their grievances, be it against their peers, persons in high positions, or the Government. It means people trust the courts to hear their cases impartially, and render judgments in accordance with the law and the facts. Justice is accessible to all and wrongdoing is punished firmly and fairly, with mercy and compassion shown to deserving cases.
It means a transparent and rational business environment where commerce is governed by transparent, predictable rules and contracts can be enforced and investments protected.
It means upholding individual rights and freedoms while carefully balancing them against society's need to maintain law and order, fostering harmony and social cohesion among people of diverse races and religions who call Singapore home. Because we emphasised all these aspects of the rule of law, Singapore distinguished itself from other developing countries, and made it from Third World to First.
Internationally, the rule of law among nations is also a vital national interest of a small state like Singapore. We say what we mean, and we mean what we say. We honour agreements we enter into and we expect others to honour agreements they enter into with us.
Sometimes we are faulted for being rigid and inflexible - too straight. But it is absolutely critical for our words to count and for us to hold others to what they have undertaken to us. Having a reputation for insisting on these key points is perhaps not a bad thing.
The AGC, together with the judiciary, is critical to upholding the rule of law.
In particular, the AGC plays four important roles. It is an independent public prosecutor; it is the Government's legal adviser; it is the drafter of our laws; and it is our international lawyer. Let me talk about them one by one.
RISKS AND BRICKBATS
First, as public prosecutors, you ensure that everyone is accountable for their actions. You enforce all our laws, whether it is against drug misuse, organised crime, unauthorised money-lending or terrorism. Because our laws are enforced, Singaporeans and foreigners know that here in Singapore, they are safe and secure. Whether you are prosecuting a mover and shaker for criminal breach of trust, charging a senior public officer for corruption, or dealing with offences involving race or religion, you always do your duty professionally, competently and faithfully, without fear or favour.
Second, you are the Government's legal adviser. You advise the Government on its legal rights and obligations, and the limits of the Government's powers. This is not a straightforward matter of just informing the Government what the law is. If it were, any civil servant could look up the statutes himself. You have to see the issues through the lens of the government department, understand what it seeks to achieve, and work closely with the department to come up with solutions, where necessary by amending the law.
This is very hard to do.
In the private sector, legal counsel will try to go along with the client if the client wants to fight the case. In fact, they even encourage the client to fight the case because he has a chance. If the client wins, you are happy for him. If the client loses, it cannot be helped.
But with the Government, as the Attorney-General (AG) said in your anniversary book: "If you win, the public will not give you special credit but if you lose, brickbats may come your way."
Thus we face the risk of what economists call a "principal-agent" problem. Your incentives may not be completely aligned with the incentive of your client, who is the government department.
The government department hopes to receive from the AGC cast-iron advice to justify the action it needs to take so that is completely covered. But the AGC hedges its advice just in case the outcome is different from that desired and it gets blamed. Because responsibility is split, the Government ends up unable to act decisively and without a clear appreciation of the issues and the risks. This is a risk. It does not always happen, but we have to guard against it.
Therefore, it is important that government departments and the AGC work closely together as partners, jointly taking responsibility for the advice and the decisions, so that the department has the benefit of professional, unbiased legal advice and can confidently do what is necessary, informed by a full understanding of the legal position and its consequences.
Third, as the legislative drafter, you advise the Government when the laws need to be updated, or new laws need to be introduced. In doing so, the AGC has to work very closely again with the government departments, the ministries and sometimes even directly with the Cabinet.
I remember one occasion, when I was a young Cabinet minister, we were working on one particular legislation and the then AG Tan Boon Teik came with his legal draftsman to the Cabinet room to meet the ministers and take instructions. We briefed the AG on our policy intent. Mr Tan went into the next room, sat down and dictated straight off the clauses to his officer, with no hesitation or pauses, off the reel, and soon came back into the Cabinet room with a typed-up draft. We discussed it further, he did the same again. After a few iterations, we had settled the draft legislation. I looked on in awe, and the episode left a deep impression on me.
LAWS WITH NO PRECEDENT
One key principle in drafting laws is that we try our best not to re-invent the wheel. Wherever possible, we study what other countries have done to tackle similar problems, and base our legislation on these existing models.
When Mr Lee Kuan Yew was in Cabinet, every time a Cabinet Paper proposed a new legislation, his first question would be: "Which country have we copied this legislation from?" Because when he knew we had found a good precedent, he was reassured that we were benefiting from the experience and mistakes of others. But when we have to make laws on our own that have no precedent elsewhere, we have to be very deliberate, think creatively and feel our way forward; and recognise that we will have to amend the laws later as we gain experience with them, to deal with unexpected issues or to react to changing circumstances.
That is what we have done with the institution of the Elected President. We amended the Constitution to introduce an Elected President with custodial powers. These arrangements were complex and novel, with no precedent elsewhere. We mulled over the problem for several years. We published two White Papers - in 1988, again in 1990. We finally legislated in 1991, introduced the Constitution amendment, held a select committee, and passed the Constitution amendment.
In the last 30 years, we have amended the Elected President provisions in the Constitution multiple times, to make the system work properly as intended. The recurring theme has been to strike the right balance between the Government's need for operational flexibility with the President's duty to exercise effective oversight.
Most recently, the AGC helped to translate the Constitution Commission's recommendations on the Elected Presidency into law, in particular, introducing reserved elections to safeguard minority representation in the Elected Presidency. On the Elected President legislation, I speak from first-hand experience of almost the whole process in the last 30 years. I worked closely with AGC draftsmen, especially Mrs Owi Beng Ki and her drafting team. Mrs Owi, too, has been there from the beginning, and probably knows more about the legislation than anybody else.
Fourth, as Singapore's international lawyer, AGC protects our interests abroad. It advises us when we negotiate international agreements and helps us to resolve disputes in accordance with international law. The best example of AGC's work is the Pedra Branca dispute with Malaysia. The AGC worked behind the scenes for many years, with our international counsel, to research and defend our sovereignty claims in Pedra Branca. Leading up to 2007, when Singapore and Malaysia presented their cases to the International Court of Justice (ICJ) at The Hague, our team was led by Mr Chan Sek Keong, who had started off doing this as AG, but by the time the hearing was held, he had become the Chief Justice and he appeared at the ICJ even though he was CJ, and he was leading the Singapore team.
The litigation over Pedra Branca was unprecedented in its scale and complexity. The disputed facts between the parties spanned 300 years. The AGC officers who worked on the case displayed professionalism and dedication to the highest degree. The outcome in our favour reflected their efforts and their capabilities.
Many of them, including Mr Chan Sek Keong, who is now a senior judge, are with us tonight. We thought that their duties were completed and we had a good dinner to thank them when the case was over but Malaysia is now taking steps to revise that judgment.
They are entitled to try but it is our Government's duty to defend Singapore's interests in accordance with international law. I am confident of the eventual outcome, because we have a capable and experienced team in the AGC and advising us including Professor S. Jayakumar who has been involved in this for about 40 years. Furthermore, we not only have strong lawyers, we have a strong case, so I think we are alright.
NEED FOR GOOD PEOPLE
These are important roles that the AGC will continue to play. While your mission remains unchanged, the volume of your work has grown, and the actual tasks are growing ever more complex. This makes it all the more important to have good people in the legal service, and in particular in the AGC. You have to be equal to the best lawyers in the private sector.
You need ability and sharpness, passion for the law, a dedication to their duties and a sense of public service. Thus a key priority for the AGC is to make sure your people are well-managed, developed, assessed, promoted, rewarded and deployed, working with the Legal Service Commission and its personnel boards. AGC officers must be assigned to challenging tasks, and as they grow in their jobs and prove themselves, be given timely and ample opportunities to rise and develop.
Indeed, we have expanded the posts at the top of the AGC. We have now several Deputy AGs, and two Solicitors-General. It reflects the growing scope of the AGC's work but it also means more opportunities for AGC officers to rise within the organisation. The best legal officers may be elevated to the Bench, as several have (been) in recent years.
Aside from top leadership posts within AGC and the Bench, the AGC has also expanded paths for specialists like Mrs Owi Beng Ki who was promoted to staff grade within the legal service this year. At the same time, it is important for the AGC to attract some of the best from the private sector and academia, to join mid-career, not just to beef up the team in terms of numbers but also to bring in people with diverse experiences, who have operated the system on the other side, and can bring a different perspective to the AGC's functions.
We have been able to do this over the years. At the top, we have had Mr Walter Woon, Mr Sundaresh Menon, most recently, Mr Lucien Wong and Mr Hri Kumar. At the working level, we have brought in good officers to join the service, and who have brought something extra with their experience and knowledge.
It is not just legal officers but the entire system that makes the AGC tick. Executives are the backbone of the institution. They support the lawyers so that the AGC can perform its legal functions well. It is equally important for the AGC to attract talented non-legal officers into its ranks. They too are part of AGC's history, and AGC's story.
For most of the AGC's history, Singapore was one of the Straits Settlements, and then after the war, a Crown Colony. In fact, the AGC was formed when Singapore became one of the Straits Settlements and was cut out from the East India Company. The AGC staff used to be expatriates. The AG himself was an Irishman.
You have heard of Sir Thomas Braddell, who was the first AG. You may not be familiar with the others, but Coleman Street, Collyer Quay, Napier Road, Goodman Road and Whitley Road are all named after AGs of Singapore, so you know more AGs than you realise, as I discovered very recently after browsing through the book. But on our road to independence, we had to shift to an AGC that was staffed by Singaporeans.
When the last expatriate AG, Ernest Shanks, was appointed in 1957, Singapore was preparing for self-government. Mr Lee Kuan Yew was then leader of the opposition. He criticised Shanks' appointment in the Legislative Assembly, because this went against the policy of Malayanisation - appointing local officers to the civil service instead of expatriate officers.
The reply from the Chief Minister, Mr Lim Yew Hock, was that so long as there was not yet self-government, the post would be filled "with the ordinary principles of qualification and experience" - a condescending answer with the implied premise that colonial officers were superior to the local officers. Two years later, in 1959, Singapore achieved self-government. The newly elected PAP Government appointed the first Singapore AG, Dr Ahmad Ibrahim, who showed himself as capable as his expatriate predecessors. By 1965, when Singapore separated from Malaysia, the AGC was staffed entirely by locals. We steadily built on this base.
Today, we have in the AGC a Singapore team, recruited on the basis of experience and ability - one which Singaporeans can trust to uphold justice and defend our interests; one which we are proud of and can hold their own internationally.
While there was no time to celebrate when the AGC turned 100 years old in 1967, at your 150th birthday, we can take one evening out. Look back on how far you have come and I have no doubt that you deserve a good celebration. I thank AGC officers past and present for your services to Singapore.
You have played a critical role in getting us here. Your passion for fairness and justice and compassion for citizens are the hallmarks of what you have built at the AGC. I am confident that you will continue to play a major part in Singapore's success for many years to come.
A version of this article appeared in the print edition of The Straits Times on April 03, 2017, with the headline 'A passion for fairness and justice'. Print Edition | Subscribe
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