Second Reading Speech by Second Minister for Law, Mr Edwin Tong, on the Courts (Civil and Criminal Justice) Reform Bill

13 Sep 2021 Posted in Parliamentary speeches and responses

I. Introduction

1. Mr Deputy Speaker, I beg to move, “That the Bill be now read a Second time.”

2. Singapore is internationally recognised for having a justice system that is fair, transparent, and effective. We have a world-class Judiciary that is known for its competence, independence, and utmost integrity.

3. The sound justice system has brought about many tangible benefits to Singaporeans:

1. The value of our legal industry, and jobs in the legal sector, have grown in tandem with our status as a legal hub.
2. A reputation for being an efficient dispute resolution centre and respect for the rule of law have also enhanced Singapore’s attractiveness as an investment destination.

4. But we cannot afford to rest on our laurels. We have to constantly look ahead and improve on what we have to stay relevant and competitive.

5. So, this Bill represents the latest of our continual efforts to improve our justice system. Let me now take Members through the key aspects of the Bill.

II. Digital transformation of the courts

6. First, I would like to touch on the digital transformation of the courts. As Members will appreciate, the COVID-19 pandemic has necessitated a reduction in the level of person-to-person contact.

7. In April 2020, we introduced a temporary remote hearing framework under the COVID-19 (Temporary Measures) Act to maintain access to justice amidst safe distancing measures. These measures have brought convenience to court users, and also increased administrative efficiency.

8. We are now looking to enact a permanent framework that will facilitate the use of technology in court proceedings.

Live video-link hearings in civil and criminal proceedings

9. Under the Bill, courts will be generally empowered to conduct hearings remotely, using appropriate electronic means such as video-link. For example, we may have hearings where only one party is physically present before the Judge, while the other party appears via video-link. We may also have hearings that take place entirely online.

10. Regardless of the specific remote hearing arrangements, the court’s overriding duty in each case will be to ensure that proceedings are conducted fairly to all parties. There will also be statutory powers to exclude certain types of matters from being heard remotely, should this prove necessary.

11. Where witness testimony is concerned, the courts have existing powers under the Evidence Act to allow witnesses to give evidence remotely in civil matters.

12. The Bill will now amend the Evidence Act to enhance safeguards relating to remote testimony. For example, matters which the court must consider before it allows witnesses to give evidence remotely can be prescribed.

13. For criminal matters, the courts already have existing powers under the Criminal Procedure Code (CPC) to allow a witness to give evidence via live video-link, if the witness is in Singapore. The Bill seeks to expand this in two ways:

1. First, the court may now allow an expert witness, or a witness of fact, to give evidence via video-link, even if the witness is not in Singapore. There will of course be appropriate safeguards for this. For example, in the case of a witness of fact, all parties – including the defence – must agree to the witness giving evidence from outside Singapore. Where parties do not agree, the witness will only be allowed to do so if he is unable to give evidence in Singapore, and has set out in writing the evidence which he proposes to give to the court. This provides advance notice to the other parties, so that the veracity of the witness’s evidence can be adequately investigated.
2. Second, the court may allow an accused person to appear or give evidence via video-link from a stipulated location in Singapore, such as in court or from a prison. The court may also allow an accused person to appear or give evidence via video-link from another place in Singapore if all parties agree.

14. In both cases, the court must be satisfied that allowing the witness or the accused person to give evidence remotely will be in the interests of justice. The court must also be satisfied that there are sufficient administrative and technical arrangements in place, in order to facilitate the taking of evidence. For proceedings relating to contempt of court, a framework similar to that in the CPC will be introduced.

Documents-only hearings

15. The Bill will also empower the courts to decide any matter based on written submissions and documents tendered by the parties, without any oral hearing. This is commonly known as a ‘paper hearing’.

16. A paper hearing can improve efficiency in the conduct of administrative pre-trial matters, and can also save time and costs when it comes to the disposal of substantive matters that are document-centric. Appeals can also be heard on paper where appropriate.

Asynchronous hearings

17. Next, let me touch on asynchronous hearings. The Bill will also make clear that parties can address the court and make their arguments via an “asynchronous” exchange in appropriate cases.

18. The intention is also to adopt what we call an “omni-channel” approach. So, lawyers and judges will be able to log in to the e-Litigation system or use the new SG-Courts application to communicate with the court. They will be able to give information to the court such as the number and availability of witnesses, or other pre-trial preparatory matters, whilst they are “on the go” and from remote places.

19. This would also reduce the need for litigants, lawyers and the court to schedule fixed timeslots when they must all appear together at the same time and at the same location to deal with a matter. This will bring about increased convenience and improved productivity.

Flexible approach to court proceedings; Closing the Justice Gap

20. Overall, the amendments will empower our courts to conduct their proceedings in a flexible manner, through the use of technology.

21. However, technology is but a means to an end. The foremost consideration for the court in all cases will be to ensure that proceedings are conducted fairly for the parties, including and perhaps in particular for litigants in person, and that justice is done.

22. In considering what a suitable mode of hearing might be in each case, the court may consider matters such as whether the case is a civil or criminal one, the complexity of the case, and the kind of and the degree of fact-finding that might be required in each case. The stage of proceedings would also be an important consideration – for example, the court may consider it appropriate to deal with administrative pre-trial matters via an asynchronous hearing. The court may also decide that certain interlocutory issues can be dealt with on paper, but may direct parties to appear in-person when it comes to other matters.

23. Let me add that if at any point, the court assesses that a remote hearing would unfairly prejudice any party to the proceedings, then a remote hearing would not be ordered. Litigants in person who find it difficult to cope with technology can also request for an in-person hearing, and make their reasons known to the judge.

24. Let me now move on to some other amendments under this Bill.

III. Related amendments to the Administration of Justice Protection Act

25. First, related amendments to the Administration of Justice (Protection) Act. Part 2 of the Bill will update the Administration of Justice (Protection) Act to ensure consistency in the way physical and remote court proceedings are treated. Therefore, unauthorised recordings of court proceedings which are conducted by electronic means, or publication or transmission of such proceedings, will constitute contempt of court. This will safeguard the sanctity of remote hearings in the same manner as physical hearings. In other words, what you could not have recorded or transmitted in a physical setting in court, you cannot also do in a remote, online court proceeding.

IV. Supporting the implementation of the new Rules of Court

Modernisation of terminology

26. Next, the Bill also introduces amendments to modernise and simplify court terminology. The aim is to make it easier for court users and the general public, who are not legally trained, to understand our laws and court practices, without the jargon. This is part of the overall effort to simplify legal processes and also enhance access to justice.

27. This Bill will modernise archaic Latin terms – terms which perhaps lawyers are most familiar with – and also technical legal jargon across more than 150 Acts.

Power to order parties to attempt amicable resolution

28. Let me now touch on another amendment, which stems from the recommendation of the Civil Justice Commission that parties ought, where possible, to consider resolving disputes amicably. If the court is not satisfied that parties have made efforts on this front, the court will be empowered to order parties to attempt amicable resolution before continuing with litigation.

29. The learned Chief Justice, in a 2019 speech, has said that there is a need to challenge the long-standing assumption that disputes are inherently confrontational, and therefore, solutions must be adversarial in nature.

30. The Chief Justice opined, and I agree, that justice must be more than the enforcement of legal rights and obligations. Justice must also be about the maintenance of peace and the promotion of compromise, conciliation, and closure between parties.

31. As a litigator myself for many years, I agree with the Chief Justice’s observation that maintaining relationships is sometimes even more valuable than vindicating one’s legal rights in court.

32. This amendment will therefore give force to that exhortation and will hasten a shift in mindset as to how justice may be achieved, by focusing on the common interests of the litigants and reaching common ground through mutual agreement and compromise.

V. Statutory right for AG to intervene in court proceedings

33. Let me now move on to the next bucket of amendments under the Bill.

34. Part 4 of the Bill amends the Attorney-General (Additional Functions) Act to provide a statutory framework for the Attorney-General (“AG”) to intervene in court proceedings to fulfil his duty as guardian of the public interest.

35. This statutory framework is based on the well-established role of the AG as the guardian of the public interest. The AG has a right and a duty to represent and safeguard the public interest.

36. The AG does not intervene in court proceedings with a view to advancing the interests of any litigant. Rather, the AG intervenes to represent the public interest, and to place before the court a non-partisan perspective on public interest issues. This strengthens the integrity of proceedings before the court, especially in cases where the court’s decision may have ramifications on the wider public good.

37. Let me touch on the framework briefly:

38. First, the AG may apply to the court for permission to intervene in any court proceeding, if he is of the opinion that the proceedings raise a question of public interest, and the intervention is necessary in the public interest. To be clear, this will not affect the AG’s right to intervene in court proceedings under any other written law.

39. If the court is satisfied that the AG has adequately set out the reasons in support of the application, then the AG is made a party to the proceedings. In deciding whether to grant permission, the court does not, at that stage, enquire into the merits of the AG’s application or opinion.

40. An existing party to the proceedings may still apply thereafter to set aside the intervention on the basis that this would be in the interests of justice. But pending the resolution of the setting aside application, the AG remains a party to the proceedings. This ensures that proceedings do not come to a standstill, once an application to set aside is made.

41. The court has the power to order costs for or against the AG, as it thinks fit.

42. Overall, the amendments in the framework that I have just outlined will provide greater clarity to the process for the AG to intervene in court proceedings and also minimise uncertainty and satellite litigation.

VI. Freestanding interim relief

43. Next, let me touch on Part 5 of the Bill, which deals with freestanding interim relief. This part amends the Civil Law Act to enable the General Division of the High Court to grant interim relief in aid of foreign court proceedings, even if there are no substantive proceedings in Singapore. This is commonly known as ‘free-standing interim relief’.

44. Under these amendments, the General Division may grant any type of interim relief which it has the power to grant, in proceedings within its own jurisdiction. In other words, the court is circumscribed by the power it already has within its jurisdiction to grant in those proceedings. For example, Mareva injunctions, which is quite typical, or search orders, or Anton Piller orders. However, warrants for the arrest of property and provision for obtaining evidence are excluded.

45. The amendments are consistent with the approach in the UK and Hong Kong, and will support our efforts to promote Singapore as a leading international dispute resolution hub.

46. Mr Deputy Speaker, let me now touch on four other proposals quickly under the Bill, which collectively aim to harmonise and enhance the court process.

VII. Amendments to harmonise and enhance the court process

Summary dismissal

47. First, on summary dismissal. At present, the Court of Appeal and the Appellate Division have powers to summarily dismiss unmeritorious appeals. The Bill will introduce amendments to empower the General Division, the State Courts, and the Family Courts to also summarily dismiss appeals that arise from the lower courts, or from a decision of the Registrar. To avoid doubt, the courts have the ability to exercise their powers of summary dismissal without hearing oral arguments.

48. The summary dismissal powers are narrowly scoped and are intended to manage frivolous appeals that are a drain on judicial resources.

49. We have also provided that the court must consider representations made by the appellant and must also give the appellant a reasonable opportunity to show cause, before exercising its summary dismissal powers.

50. Sir, at this stage, I would like to highlight that my ministry will be moving a Notice of Amendment during the Committee Stage to address two other issues relating to summary dismissal:

1. First, to make drafting changes and align the phrasing of the summary dismissal provision for the Family Court at Clause 25 of the Bill with the equivalent provisions that apply to the General Division and to the State Courts. These provisions are intended to have the same effect.
2. Second, to ensure that the Court has the power to summarily dismiss certain unmeritorious criminal applications on its own motion. For example, these could be applications brought without any sufficient grounds, or in a particular case where the court has no jurisdiction. This power will apply to criminal matters, such as an application for criminal revision or a criminal motion, where the existing summary dismissal provisions in the Criminal Procedure Code do not currently apply.

Agreements not to Appeal

51. Second, agreements not to appeal. We will align the position across all the courts for Agreements not to Appeal by introducing a clear and simple framework that the parties may use to restrict their right of appeal.

52. This already exists to some extent in the State Courts Act, and the Family Justice Act today.

53. Under these amendments, Agreements not to Appeal must be in writing and signed by or on behalf of all parties. This ensures that parties’ attention is drawn to the implications of their agreement, and minimises ensuing satellite litigation over whether there was in fact an agreement or not.

Providing for the flexibility to adjust the size of the coram

54. Third, flexibility in the size of the coram. Currently, proceedings in the General Division are usually disposed of by a single Judge. Clause 53 of the Bill introduces amendments to allow the Chief Justice to convene a coram of 3 or more Judges to hear any civil or criminal matter before the General Division, if he considers appropriate. This may be the case where, for example, there are novel or important questions affecting the public interest, which could benefit from the collective wisdom and insight of a larger coram.

55. Let me now touch on one final amendment in this Bill.

Proceedings under the Arbitration Act and International Arbitration Act to be heard in private

56. Today, proceedings under the current Arbitration Act, and the International Arbitration Act, are heard in open court by default, unless a party applies for the matter to be heard otherwise than in open court, in camera, for instance.

57. We have considered feedback from various stakeholders, practitioners, that, as a matter of practice, it would be common for parties involved in proceedings, involving arbitration, such as in those two Acts, to make applications for the matter to be heard in private. Given that these applications relate to arbitrations, such applications are often allowed by the court.

58. Hence, to better reflect the prevailing practice and streamline the process for parties, Clauses 8 and 30 of the Bill will amend the Arbitration Act and the International Arbitration Act respectively, to provide that proceedings under these Acts are to be heard in private by default, unless the court orders that the proceedings be heard in open court.

59. This is in-line with the overall confidential nature of such arbitral proceedings and will result in cost and time savings for parties, who now do not have to apply for such proceedings to be heard in private.

VIII. Conclusion

60. Mr Deputy Speaker, our courts play a critical role in upholding the rule of law, through the fair administration of justice in Singapore.

61. This Bill is the culmination of years of effort to re-design our court system to enable it to be future-ready, and well-equipped to meet the evolving needs of society. The Bill also implements the recommendations of the Civil Justice Commission, and the Civil Justice Review Committee.

62. I would like to end by thanking the Judiciary, members of the Bar, and all the stakeholders who have worked with the Ministry of Law on shaping the future of justice system.

63. Sir, I beg to move.

Last updated on 13 Sep 2021