Refuting Law minister Shanmugam

I refer to the 7 Nov 2014 Straits Times report “Parliament: ‘When you have a small Bar and very small talent pool’”.

Contrary to what Minister Shanmugam said, if the constitution is changed to suit what the government finds it has to do, that’s not fitting the rules to the best it can but changing the rules to suit whatever purpose it may have.

Mr Chan Sek Keong isn’t the greatest jurist of his generation

Many Singaporeans may not agree with Minister Shanmugam that former chief justice Chan Sek Keong is the greatest jurist of his generation.

During the general election of 1997, Mr Goh Chok Tong and Mr Tony Tan entered Cheng San polling station in contradiction to general election rules but Mr Chen Sek Keong, as Attorney General then ruled that no laws were broken.

But according to Parliamentary Elections Act (Chapter 218), contested elections:

(4) The presiding officer shall —
(c) exclude all other persons except the candidates, the polling agent or agents of each candidate, the Returning Officer and persons authorised in writing by the Returning Officer, the police officers on duty and other persons officially employed at the polling station.
(5) The number of polling agents that may be admitted to any polling station for an electoral division shall be as follows:
(a) only one polling agent for each candidate contesting the election in that electoral division; or
(b) in the case of a polling station for a group representation constituency, only one polling agent for each group of candidates contesting the election in that constituency. [42/96]
(5A) Notwithstanding subsection (5), where more than one polling place has been established at any polling station, only one polling agent for each candidate or each group of candidates, as the case may be, shall be admitted to each such polling place. [42/96]
(6) No polling agent whose name has not been notified to the presiding officer as required by section 64(1) shall be admitted to a polling station.

It was unlikely that Mr Goh Chok Tong and Mr Tony Tan entered the polling station as polling agents which are minion roles to them. So going by this section of the law, the presiding officer should have excluded Mr Goh Chok Tong and Mr Tony Tan from entering the polling station. The fact that both gentlemen entered the polling station when they ought to have been excluded from entering means something must have been wrong then. If not, why didn’t Mr Goh Chok Tong and Mr Tony Tan continue to enter polling stations of other candidates in subsequent general elections? The failure of Mr Chan to catch this transgression will forever mar his good name.

Mr Shanmugam contradicted himself

Mr Shanmugam contradicted himself when he said on the one hand that we have a small Bar and a small talent pool but said on the other hand that Singapore faces a glut of lawyers.

Over just four years up to March last year, the number of practising lawyers here leapt by nearly 25 per cent to more than 4,400. Another 1,500 are expected to join them in the next three years. And there has been a sharp rise in those heading overseas to study law. In Britain alone, the number of Singapore law students more than doubled from 510 to 1,142 between 2010 and last year. Law Minister K. Shanmugam dished out these numbers yesterday as he warned that Singapore could soon have more lawyers than jobs for them all. He urged law students to temper career and salary expectations, and maybe even consider other jobs. Speaking at the Criminal Justice Conference organised by the Singapore Management University (SMU) and National University of Singapore, which both have law schools, he said the number of lawyers is expected to grow by nearly a third in the next three years. But “the market is not going to grow by 30 per cent”, he said, pointing out that this year, nearly 650 graduates will compete for about 490 practice training contracts at law firms, to get the training they need before being admitted to the Singapore Bar. About 150 students will have difficulty getting a training contract, let alone employment after that,” said Mr Shanmugam, who is a senior counsel himself. “The study of law provides an excellent training of the mind, so I don’t want to be seen as discouraging people… but you have to have a realistic understanding of the market, the economy, the total structure.”

[Straits Times, S’pore facing a glut of lawyers, 17 Aug 2014]

Difference between government and opposition

Unlike what Minister Shanmugam said, the government differs from the opposition in the sense that it bends laws in ways that are so clumsy and outrageous it defies common reasoning and makes them the laughing stock of the world.

Straits Times, Parliament: ‘When you have a small Bar and very small talent pool’, 7 Nov 2014

The Workers’ Party yesterday made judicial independence the reason for not supporting an amendment to the Constitution tabled by Law Minister K. Shanmugam.
It was an odd move on the part of the opposition party. As Mr Shanmugam pointed out, the objections raised by Aljunied GRC MPs Sylvia Lim and Pritam Singh – both lawyers – had nothing to do with the amendment before the House, but were related to changes the WP wished the Government were making instead.
Any amendment to the Constitution – being the supreme law of the land – is a serious matter. To be passed, it needs the assent of not less than two-thirds of the elected Members of Parliament.
The key aspects of yesterday’s amendment were to create two new judicial appointments, namely, International Judges and Senior Judges; and to introduce a gratuity plan in place of pensions for future holders of judicial and statutory appointments.
The first relates to the setting up of the Singapore International Commercial Court, as the Republic moves to realise its vision of becoming the leading dispute-resolution hub in the region.
The second follows from the Public Service Division’s review of salaries last year.
These were clearly set out in Mr Shanmugam’s speech.
But when Mr Singh joined the debate, he announced the WP’s opposition to the Constitution Bill on the grounds that the party was uncomfortable with the change to allow retired High Court judges to be appointed on short terms as Senior Judges.
“This weakens a concept critical to judicial independence, namely, the security of tenure,” he said.
The WP’s view, as set out in its manifesto, is that the Constitution should instead be amended to extend the retirement age of Supreme Court judges from 65 to 70, with no prospect for extension thereafter, he said.
“While extensions and short- term appointments are administratively convenient,” he added, “it is the Workers’ Party view that they weaken the protective wall that upholds judicial independence.
“Under the existing regime, which this Bill re-enacts, it is conceivable that a judge past the retirement age may be retained by the Government because his or her judgments are ‘safe’ ones and acceptable to the Government, even as the Judiciary remains a separate organ of state.
“While I am not suggesting that this has occurred, such judgments may well be read as a signal by other judges who have not reached retirement age, as a factor that might determine the prospects for future judicial employment past the statutory retirement age or for a permanent appointment in the case of Judicial Commissioners.”
A Judicial Commissioner or JC has all the powers and functions of a High Court judge but is appointed on a short tenure. Singapore’s practice of appointing JCs dates back to 1979, when the Constitution was amended to allow for it.
Yesterday’s amendment merely extended this practice to the appointment of Senior Judges.
Still, Mr Shanmugam chose to address the WP’s concern over security of tenure seriously and factually, for which he is to be commended.
Currently, judges enjoy security of tenure up to the retirement age of 65. Should that be raised to 70?
In an ideal world, perhaps, he said, adding that on the issue of tenure, “fundamentally, we don’t disagree”.
“But the point is you have to take the profession as you find it and try and fit the rules to the best you can, and if you are too theoretical or too dogmatic about this, in the end you will not have had the judiciary that we have had with the outstanding reputation that it has,” he said.
In 1979, Mr Lee Kuan Yew had explained to the House the need for JCs. Lawyers in private practice indicated – and they continue to indicate, said Mr Shanmugam – a preference for short-term appointments to the High Court bench, after which they could decide whether they wanted to continue or to go back into practice.
In 1986, former Chief Justice Chan Sek Keong became the first person to be appointed a Judicial Commissioner.
CJ Chan is “possibly the greatest jurist of his generation”, Mr Shanmugam said, citing him as an example of an outstanding judge who started out as a JC.
The Law Minister also stressed the need to deal practically with the reality of “a small Bar, which is what we have, and a very small talent pool”.
Therein lies a key difference between what those in Government find they have to do and what those in the opposition prefer they do.
All seven WP MPs voted against the constitutional amendment.
But it passed easily with 69 ayes, 11 more than the 58 needed, thanks to PAP MPs’ strong turnout – the best the House has seen for some time.


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