Workers’ Party (WP) member He Ting Ru spoke in support of party chairman Sylvia Lim’s “Justice For All: Enhancing Equity In The Criminal Justice System” motion, in Parliament on Wednesday (4 Nov).
The motion, which was the very first motion she moved in the 14 years’ she has spent in Parliament, called on the House to affirm that “fairness, access and independence are cornerstones of Singapore’s justice system.” It also urged the government to “recognize and remedy its shortcomings” to enhance the justice system and facilitate a review of the system.
Read Ms He’s speech in full here:
I am honoured to give my support to the motion raised by my colleague Ms Sylvia Lim. The topic of our motion today is ‘Justice for All’. Within the criminal justice context, we often take this to mean that the guilty must be caught, get sentenced to and serve their punishment. Of course this is an important outcome that our justice system must strive towards.
The House of Justice For All has four pillars: First, the police, investigative process and the system; Second, the Attorney-General’s Chambers, in the form of public prosecutors to review a case; Third, judges who set the standard of evidence required; and Fourth, the Law Society, in the form of defence lawyers, who take on criminal cases to ensure that the presiding judge does not just listen to one side of a story, just like Parliament making sure there are different views on specific issues, to ensure a more robust outcome.
When these four pillars function well and are strong, they can withstand the load of the House of Justice. How big and strong the House of Justice can be to accommodate the notion of Justice For All, depends entirely on the strength of each of the pillars. The bigger the house, the wider the roof, and therefore the strong the pillars must be.
Recent acquittals such as the Parti Liyani case have illustrated why it is essential for the House of Justice to have strong pillars, to ensure it is able to also deliver just outcomes for those who are innocent.
As my colleague the member for Aljunied pointed out earlier, Singapore’s system is generally well regarded, both domestically and internationally, and we do not mean to take away anything from the hard work being done by the judges, police officers and prosecutors who ensure that the public interest is defended and protected.
And to repeat the point made by Ms Lim, the Workers’ Party is not suggesting that the system is broken or ineffective, but that we believe that more attention must be paid to ensure fairness, access and independence.
We must therefore reduce any barriers to fair access to ensure that the next Parti Liyani will not have quite as daunting a task to prove her case.
This is especially important for those from vulnerable or disadvantaged backgrounds. The risk of wrongful conviction is especially challenging as they tend to be unrepresented in front of judges. Engaging counsel requires resources they do not have, and some may feel overwhelmed in the face of the charges being brought against them, and simply plead guilty in order to bring the matter to a close.
To make matters worse, even if the accused person manages to gain access to legal representation, they may often lack the financial means to post bail, and often end up facing further disruption to their families and stigmatisation due to being stuck in remand.
Additionally, defence lawyers often face an unequal playing field – they do not have similar powers to the prosecution to seize evidence or compel witnesses to give statements.
If we do not put in adequate measures to address these concerns, such as the proposed review of police investigative processes and building in balances on the power of the public prosecutor’s office to decide whether to proceed to charge the accused in court, we could end up having a justice system that is oppressive for the poor and disadvantaged.
It is with this in mind that Ms Lim has spoken at length about suggestions such as allowing composition fines to be paid by instalments, considering non-monetary bail conditions, and allowing written police statements to be made in our other official languages”: Malay, Chinese and Tamil.
All of these would go some way to ensure that individuals from vulnerable backgrounds who don’t have the resources, have a fair, balanced shot at justice.
It is careful balancing act: we want law enforcement and judicial officers to have the right amount of power to ensure guilty criminals do not walk away scot-free, but not so much power that the innocent find it extremely difficult to fend off wrongful accusations or charges. However, we should at the same time ask ourselves: are we, as a society, comfortable with having a system which leans heavily on the side of caution, risking wrongfully convicting innocent persons of crimes they did not commit, to ensure that we do not let any guilty persons walk away free?
After all, if the roof of the House of Justice is too narrow, we risk a situation where individuals start finding that the cost of entering the House is too high, or they are unable to squeeze into it, we may end up with a fragmented society.
Justice and equality are the fundamental tenets of our national pledge upon which our leaders promise to the people to build a nation based on them. It is therefore paramount that we keep strengthening the pillars of the House of Justice and expand the roof of the house until all citizens have a roof of justice over them. Justice For All is where justice is not only served, but seen to be served, and is a foundation upon which our nation’s democracy should be built.
Mr Speaker, in English.
Access to Legal Representation and Legal Aid
As I have mentioned earlier, one of the pillars of the House of Justice represents defence counsel, who represent persons who are accused of crimes. These lawyers are there to ensure that the accused person is aware of their rights and obligations under the criminal justice system, and to act as their advocates in their cases before the judiciary.
Given the crucial role of defence counsel, it is disquieting to see that a significant proportion of accused persons still appear before the courts unrepresented, with approximately 40% of accused persons who claim trial appearing unrepresented at the State Courts during the pretrial stages.
It is possible that this figure is significantly higher if you include accused persons who plead guilty. Studies – some conducted within the Singapore system – have also shown that unrepresented persons have a significantly greater chance of being convicted, and are also more likely to receive more severe sentences upon conviction, raising the risk of miscarriages of justice occurring.
As a concrete example, what would the chances be that Parti Liyani or Portela Vilma Jimenez would have secured an acquittal upon appeal if they had not been represented by a defence lawyer?
Some of the more common reasons for accused persons appearing unrepresented include lack of funds, and also awareness. Many of us are familiar with residents stating that they either cannot afford a lawyer, or that they do not know where to begin to find one for themselves.
One of the ways in which we should improve access to justice for all, would be to enhance existing legal aid. The right to consult and be defended by a legal practitioner of choice is a fundamental liberty found in Article 9(3) of our Constitution. Can we be said to be taking this right seriously if a significant number of individuals who face criminal proceedings are unrepresented?
Presently, only those charged with capital offences are guaranteed to have legal counsel appointed in the form of the Legal Aid Scheme for Capital Offences if they do not have means to engage their own lawyers. There is no means test to pass or eligibility criteria to satisfy, and the scheme applies to all accused persons, regardless of nationality.
For non-capital offences, the Criminal Legal Aid Scheme (CLAS) administered by the Law Society of Singapore and also funded by the Ministry of Law provides that accused persons with a disposable income of not more than $10,000 per annum and a disposable capital of not more than $10,000 may be granted legal aid, subject to an additional merits test. Foreigners too can apply for this scheme.
Finally, the Ad Hoc Pro Bono Referral Scheme administered by the Law Society of Singapore offers legal representation for persons with exceptional circumstances who do not meet the criteria for existing legal aid schemes but are nonetheless in urgent need, may apply for it.
Yet, it appears that the schemes are still limited in their reach, as can be seen by the large number of unrepresented persons, and such pro bono legal representation still largely relies on the goodwill of lawyers.
Additionally, the rights to be allowed to consulted and be defended by a legal practitioner of choice in Article 9(3) of our Constitution has been qualified by case law such as Jasbir Singh v Public Prosecutor, a 1994 case of the Court of Appeal that an arrested person is only entitled to consult defence counsel a “reasonable time” after arrest. The consequences of this is that accused persons can be held without access to counsel when police investigations are ongoing.
This is contrasted against other countries such as New Zealand and Denmark. In New Zealand, legal aid is available to persons arrested and detained on criminal charges, persons charged with a criminal offence, and persons imprisoned on criminal charges.
The state is also obliged to provide legal aid to persons with intellectual and mental disabilities, persons who face a potential prison sentence of 6 months or more, and persons who meet a financial threshold.
The legal aid scheme also does not have a set income level in determining the means test, but instead adopts a flexible approach by considering various factors such as a person’s gross income for the past 12 months, together with their disposable capital.
In Denmark, the police have a duty to guide an accused person on their option to have defence counsel appointed when provisionally charged in a criminal case, and in a number of cases, the court may appoint a public defence counsel for the accused person.
As a general rule, defence counsel must be appointed in all criminal cases, unless the case is minor, and the cost of appointing public defence counsel is initially paid out of public funds, with such costs to be recovered only upon conviction.
Given all this, perhaps it is now time for us to enact the provisions of the original Legal Aid & Advice Ordinance, which were first introduced after David Marshall in 1955 called for a statutory requirement for the provision of legal aid – including for criminal matters – to the indigent, for everyone in Singapore to have equal access to the justice system, rather than rely on having these resources provided on a voluntary basis by the profession.
Apart from that, the review we are calling for should also consider automatically providing legal aid to certain groups, such as to all individuals charged with serious non-capital offences carrying long-term imprisonment sentences and do not qualify for CLAS, or, as in the case of Canada, where legal aid is mandatory for all youth offenders.
The review should also look into how we can ensure that vulnerable segments of society are informed of their rights and where to seek legal aid. It should also look into considering amendments to the Criminal Procedure Code and whether there should be a fixed time within which an accused person is permitted access to a lawyer.
Finally on this topic, I am happy that the law minister stated that we are seriously considering setting up a publicly funded Public Defender’s Office for all criminal matters, which takes on defence counsel work for accused persons throughout a criminal matter.
We can explore having a system of rostering state funded police station or court duty lawyers, enabling a person arrested on suspicion of a criminal offence to consult with a lawyer after arrest, or allow an accused person to be represented by a lawyer at a court on their first appearance if they do not have, or have not been able to contact, their own lawyer.
Statutory Compensation for Miscarriages of Justice
The final topic I would like to speak on today, would be in relation to the statutory compensation for miscarriages of justice. The member for Aljunied has already spoken about compensation for victims of crimes. However, I believe the review we are calling for should also look into whether there is scope to bolster the current compensation scheme that we have for accused persons who have been acquitted.
Currently, Section 359(3) of the Criminal Procedure Code allows for the acquitted person to be compensated a sum not exceeding $10,000, provided that the court is satisfied that the prosecution was frivolous or vexatious.
This qualifier does not account for how an accused person still suffers emotionally from having to go through a trial where they stand accused of a crime, and that they may also suffer financial losses or loss of income while the charge is hanging over their heads, even if the prosecution was taken out in good faith.
Genuine mistakes do happen, and given that cases can last a long time, such as the case of Chukwudi being a recent one where the accused was in remand for 9 long years after his arrest for drug trafficking.
This contrasts against the schemes in other jurisdictions such as the United Kingdom, where Section 133 of the Criminal Justice Act 1998 states that the state shall pay compensation for the miscarriage of justice to the person who has been convicted, suffered punishment, and subsequently had his conviction reserved or pardoned on the grounds of a newly discovered fact that shows that there was a miscarriage of justice.
The legislation is very specific about the circumstances which make such persons eligible for compensation, and the amount of compensation depends on the seriousness of the offence of which the person was convicted or accused, the severity of the punishment suffered, the conduct of the investigation and prosecution of the offence, and any other convictions of the person.
I realise that this is a complex issue which requires a balance in ensuring that genuine victims of miscarriages of justice are compensated, against being so generous as to possibly introduce a chill factor in carrying out prosecutions that may hamper the efficient administration of justice for crimes committed.
However, note that in the UK, there were only 14 successful cases between 2010 and 2019 out of a total of 398 applications. Be that as it may, serious consideration of our existing scheme is still warranted, to ensure that wrongly convicted persons may be adequately compensated in what is after all a serious deprivation both financially and to their personal liberty.
Mr Speaker, in conclusion, while the House of Justice and its four pillars may be strong today, it does not mean we stop looking for ways to continually strengthen each pillar, to ensure that the House remains strong and able to provide shelter to all despite any storms or subsistence that may batter away at it.
Mr Speaker, I support the Motion.”
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