Keynote Address By Mr K Shanmugam, Minister for Foreign Affairs and Law, at the Criminal Law Conference 2011

13 Oct 2011 Posted in Speeches

The Honourable The Chief Justice Chan Sek Keong,
The Honourable Datin Seri Paduka Hayati Salleh, Attorney-General of Brunei,
The Honourable Attorney-General Sundaresh Menon,
The Honourable Judges of the Supreme Court,
The Right Honourable Lord Goldsmith,
Mr Kevin Zervos SC, Director of Public Prosecutions with the Hong Kong Department of Justice,
Datuk Wira Kamaludin bin Md. Said, Head of Appellate and Trials pision of the Attorney-General’s Chambers Malaysia,
Distinguished guests,
Ladies and gentlemen,

Introduction

1. This Conference, jointly organised by the Law Society of Singapore, the Attorney General’s Chambers (AGC), the Association of Criminal Lawyers and the Singapore Academy of Law, is a joint effort to look at our Criminal Justice System, and is really to be welcomed.

2. This process has taken place over some years. The Ministry of Law (MinLaw) has also started taking this same approach. For example, when we dealt with the Criminal Procedure Code, we put in the agencies, the stakeholders from the bar, the courts, and also the Ministries to really look at it. We have to go forward treating the Bar as a key partner and stakeholder in the criminal justice system, and take in the ideas of the Bar. In those meetings, Mr Subhas Anandan, amongst others, was a somewhat heavy and big presence, as he usually is. His imprimatur is to be found in at least some respects of the new Criminal Procedure Code. The approach and the aim in all of this are for us to have a first rate, world class criminal justice system.

3. Today, I will spend a few minutes dealing with a couple of questions in that context that I am asked in relation to the AGC and the Prosecution Service.
   • First, what sort of Chambers or Prosecution Service does the Government want to see; and
   • Second, the relationship between the Government and AGC / the Prosecution Service.

AGC

What sort of Prosecution Service / Chambers

4. What sort of Prosecution Service or AGC do we want to see? Government’s philosophy is very simple. AGC must attract its share of the best legal brains from law schools, and it must retain and develop them. There can be no second guessing on that.

5. With sustained efforts over the years, the Chambers now has more than 200 officers doing a variety of work: civil, legislative, constitutional, international and criminal.

6. It is recognised as having some of the best legal talent in Singapore.

7. For example, in the International Division: In a major matter that Singapore was involved in, we had some of the top international counsel acting for Singapore. At the end of the matter, they had only fulsome praise for our International Affairs Division officers. They commented, and this was not simply flattery, that this was the best team they have worked with.

8. That is also reflective of the talent available across the other divisions. Those of us who have been in private sector, and now worked with the best in Legal Service, including AGC, know that they do compare with the best lawyers outside. Their exposure is a little different, they may be a bit uncertain of the commercial market and how it operates, but in terms of talent and ability, they are second to none.

9. This has not happened by accident – The Honourable Chief Justice, when he was AG, and his successors worked at this very hard.Now you have heard from the AG that there is a comprehensive / rigorous programme to train the AGC’s crime cluster. It is structured training to develop advocacy skills. Lawyers who join AGC conduct cases in early career.

10. AG is thinking of much more – to train and to give exposure, including suitable outside attachments. For promising officers – attachments with top notch barristers’ chambers/ law firms overseas. These are all plans that the AG has, and which he has shared with MinLaw. So it is really a very exciting time to be in Chambers – very forward looking.

11. What do we want to see out of all this?
    • Prosecutors with a keen sense of justice.
    • The intellectual capacity to handle complex criminal litigation.
    • Most important: integrity and the moral fibre to make the right decision.
    • The Government will do everything to support the achievement of these objectives.

12. Useful for me in this context to set out also the role of the AG and AGC in the Constitution because it relates to second question, of how the Government views its relationship with the AGC.

13. Article 35 (8) of the Constitution gives the AG the power:
    • Exercisable at his discretion – complete discretion,
    • To decide on prosecution.

14. This is a serious and great responsibility:
    • It deals with the well being of the community.
    • And the liberty of the individual.
    • Abdication of this responsibility would take place if prosecutors take the attitude
      • let us charge and let the Court decide. That should never happen.
    • The exercise of this discretion is quasi judicial.
    • The act of bringing a charge itself has serious consequences for people’s lives and their careers.
    • So great care and discretion is necessary.
    • In some cases, the Courts have commented that the prosecution should never have been brought. If the reason for that prosecution having been brought is an exercise of judgment wrongly, we can understand, though we should minimise that. But it should never happen because judgment was never exercised in the first place.
    • And I emphasize another point – equally, it is also abdication of responsibility if a prosecutor believes honestly that an offence is disclosed, but lacks the will or will not proceed for extraneous reasons.
    • So, we need clear minded, strong prosecutors, who will exercise the prosecutorial discretion according to the law as they see it.

15. In summary, on that point: we need an outstanding, world class Prosecution. That is also the Government’s philosophy on how prosecutions should be conducted.

16. How does this relate to the relationship between the Government and the AGC:
    • Article 35 (8): spoke about this.
    • Article 35 (7): Government’s chief legal advisor.
    • Ministries, particularly mine, deal regularly with AGC – on a variety of issues.

17. There, there is this dualistic role:
    • As the Government’s chief legal advisor, AG works closely with the Executive to ensure Government policies are legally defensible.
    • AG advises on the legal framework necessary to support the Government on its policy framework.
    • But this collaborative/ advisory role ends, has to end, when the AG exercises his rosecutorial discretion under Article 35 (8). The AG has to make the final decision on prosecutions.

18. There is a line – and you need a clear understanding of the constitutional position on both sides: a Government and an AGC which understand the line, and respect that line.

19. The Government views the AGC as a key institution; and will do everything to support that constitutional role.

20. I have set this out as sometimes there is a lack of understanding on the AG’s role and how we interact with the AG.

Conclusion

21. Today’s conference is the product of close collaboration between AGC and the Criminal Bar. Hopefully many such events will come on. I wish everyone an enjoyable and fruitful conference over the next two days.

Last updated on 25 Nov 2012