Why the Attorney-General can be both a public prosecutor and Government legal advisor: Edwin Tong explains
SINGAPORE: The Attorney-General does not hold political office and has independent prosecutorial discretion that is protected by the Constitution, Senior Minister State for Law Edwin Tong said in Parliament on Friday (Feb 28).
The appointment is also done through a dual-key system, Mr Tong said during his Committee of Supply debate speech.
This is why the Attorney-General can hold the dual role of Public Prosecutor and chief legal advisor to the Government, he added.
Mr Tong was responding to a suggestion by Workers' Party MP Sylvia Lim during the committee of supply debate that an amendment be made to the Constitution to de-couple this dual role.
Ms Lim said the Attorney-General has a responsibility to decide on criminal prosecutions on behalf of the State: "Who should be charged, who should be let off with a warning, who should have their charges reduced and compounded, and so on."
"He is arguably more powerful than High Court judge, as his exercise of discretion is done in private and (cannot be appealed)," she said.
Ms Lim suggested that the roles be split "so the person who is public prosecutor is not the same person taking the Government's instructions in non-criminal matters".
But in Singapore, Mr Tong said the Attorney-General does not hold a political office, further reinforcing the role's independence.
This is unlike jurisdictions such as England and Australia, he highlighted, where the Attorney-General holds a political office and is subject to “political pressure”.
In these jurisdictions, Mr Tong said separation of the role is necessary to ensure the independent exercise of prosecutorial discretion.
“The Constitutional safeguards in Singapore ensure that the Attorney-General is protected from such pressure and allows him to discharge both his roles as Public Prosecutor as well as the Government’s legal advisor without fear or favour,” he added.
Mr Tong said the Constitution provides that the Attorney-General has the discretion “to institute, conduct or discontinue any proceedings for any offence”.
Another legal safeguard, Mr Tong said, is the dual-key system for the appointment of the Attorney-General.
Both the President and the Prime Minister must agree to the appointment, with Mr Tong stating that the Presidential veto makes a more robust system compared to other major common law jurisdictions like England and Wales, Australia, and New Zealand.
In these jurisdictions, Mr Tong said officers in charge of prosecutions are appointed solely by a government minister.
Ms Lim had also suggested that the public prosecutor be given security of tenure, which means he or she cannot be removed from office except in exceptional and specified circumstances, as opposed to the current system of serving for a fixed term.
Referring to "other mature common law jurisdictions, the officers in charge of prosecutions in England and Wales, Australia, New Zealand and Hong Kong do not have security of tenure and typically serve pre-determined renewable terms”, Mr Tong said.
What’s more important, Mr Tong said, is that it is “very difficult” to remove the Attorney-General in Singapore, highlighting that the President, Prime Minister and a tribunal of three judges, including the Chief Justice, must all agree that the Attorney-General is unable to discharge his functions, or there has been “misbehaviour”.
“In some of the other mentioned jurisdictions, the requirements for removal are considerably less stringent,” he added.
These safeguards must also be coupled with the Attorney-General’s actions to maintain public trust, Mr Tong said, adding that he has not shied away from prosecuting high-profile or well-connected individuals.
“Some examples of more recent and those further back prosecutions include: Actions against a Minister of State, against sitting and former Members of Parliament, against at that time, the Singapore Civil Defence Force Commissioner, the then-National Kidney Foundation CEO, and also the then-Deputy Chief Executive of PUB,” he said.
Mr Tong also pointed to the high confidence of the public in the legal system, highlighting survey statistics referred to during the 2016 Committee of Supply debate that showed 90 per cent of respondents had trust and confidence in the Attorney-General’s Chambers.
“The Government fully agrees that public confidence is important,” Mr Tong said. “And because of the way we have built up our institutions, public confidence in our institutions is high. Our institutions work well and have worked well.”
Mr Tong said this confidence did not develop by chance, and is the result of “prudent legal safeguards, as well as the integrity of those in the system”.
He said the public trusts the Attorney-General and the broader legal system because it appoints “individuals of the highest calibre and integrity, and they exercise their discretion independently”.
“The high levels of public trust in our legal system, and the Attorney-General’s Chambers, speak for themselves,” he stated.
However, Ms Lim cited a 2017 Straits Times commentary where a former Attorney-General suggested the introduction of this de-coupling, not because of current issues, but to "pre-empt future problems".
She also highlighted that the writer said a constant change in Attorney-Generals affects the morale of other public prosecutors.
In response, Mr Tong said from a Singapore context, the Government looks at the broad institutional protections, the integrity of the individual, and the fact that there have been high-profile prosecutions.
"We constantly review the system that we have. We understand that other countries look at the separation. We look at our system and we constantly evaluate it and we will make adjustments as appropriate," he added.
"But at the end of the day, what drives the decisions that we make ultimately has to be output, performance and the way in which the public retains and reposes confidence in the functions of the Attorney-General."