Bill to set up Public Defender’s Office passed, qualifying income criteria could be relaxed in future
SINGAPORE: Parliament on Monday (Aug 1) passed a Bill to set up the Public Defender’s Office (PDO), allowing more vulnerable people to get financial aid for legal representation.
The PDO, aimed to be set up by the end of this year, will be available to eligible Singaporeans and permanent residents who have a per capita household income of up to S$1,500 and are charged with non-capital criminal offences.
Senior Parliamentary Secretary for Law Rahayu Mahzam said on Monday that the qualifying income ceiling could be “further refined”, depending on available funds, after the PDO starts operations.
The office will not take on offences covered by 10 Acts that are deemed to be morally depraved or bring negative externalities to society, such as gambling and betting, organised and syndicated crime, as well as terrorism.
Regulatory offences like traffic summonses and minor departmental or statutory board charges, as well as private prosecutions, will also not be covered.
This comes after Law and Home Affairs Minister K Shanmugam in April announced plans for the PDO so the Government could “go further” to provide criminal legal aid. A Bill was introduced in Parliament on Jul 4.
In 2020, while addressing the case of Parti Liyani, the Indonesian migrant domestic worker acquitted of stealing from her employer, Mr Shanmugam said the Government would study the details and feasibility of a public defender scheme.
The PDO will function alongside the existing Criminal Legal Aid Scheme (CLAS), which covers fewer offences and applies to accused persons with a disposable income and assets of not more than S$10,000 over the last 12 months. This is equivalent to a per capita gross monthly household income of S$950.
In April, Mr Shanmugam also announced that authorities were looking at raising this requirement from S$950 to S$1,500.
Ms Rahayu said in her closing speech on Monday that the Government in Financial Year 2020 funded CLAS to cover 712 cases.
“With the enhancements to income and offences coverage, we estimate that this number will likely increase by about 50 per cent,” she said.
While CLAS is a voluntary scheme co-funded by the Government and run by the Law Society, PDO will be established as a department under the Ministry of Law (MinLaw), and be fully funded by the Government.
The PDO will be headed by a Chief Public Defender, appointed by the Minister for Law, and be staffed by Public Defenders, who will be full-time lawyers.
The Chief Public Defender can approve an application for criminal legal aid if the applicant satisfies means and merits tests.
An applicant who fails these tests might still get aid if there are “extenuating factors” like medical illnesses and caregiving obligations.
The minister also has the discretion to direct the Chief Public Defender to grant aid in a case where aid was not granted, if he believes it is in the interests of justice to do so.
WILL APPLICANTS STILL HAVE TO PAY?
The Chief Public Defender can require an applicant to co-pay the costs of legal aid in a lump sum or by instalments. The Chief Public Defender will have the discretion to reduce, waive or refund any such contributions.
“The less (the applicants) have, the less they pay and vice versa. Those who have very little savings and investments may even pay nothing,” Ms Rahayu said in her opening speech.
“This ensures that applicants contribute towards their defence and do not abuse the system.”
At a later date, the PDO will adopt a hybrid model of managing some cases in-house while outsourcing others to the private sector.
The Chief Public Defender can appoint a panel of solicitors to act for applicants who have been granted aid, and to provide for fees to be paid to these solicitors.
The fees payable will be agreed on between the Chief Public Defender and the solicitor based on considerations like the complexity and novelty of the issues involved in the case, the skill and specialised knowledge required, and the time and labour expended.
“Some applicants may require legal aid urgently. Examples are those in remand or who are minors,” Ms Rahayu said.
“Such applicants can be issued with a provisional grant of aid if they are likely to pass the means and merits test. This ensures that no deserving applicant will be denied aid while waiting for the means and merits test to be completed.”
Under the Bill, those who try to abuse the PDO by applying for legal aid even if they could afford it could be jailed for up to six years or fined a maximum of S$5,000.
This includes making false or misleading statements, failing to make full and frank disclosure of means, and failing to inform the Chief Public Defender of any change to means or circumstances that could make them ineligible for legal aid.
Some MPs, however, questioned if the qualifying per capita household income ceiling of S$1,500 was too low.
Progress Singapore Party Non-Constituency MP Leong Mun Wai suggested that the figure be raised to S$2,200, in line with his party’s recommendation of a minimum living wage of S$2,200 for Singaporeans.
“The Government may argue that this would be fiscally irresponsible and unnecessarily drive up costs,” he said.
“A scaling co-payment model could easily be implemented to ensure that applicants pay their fair share of their defence, and yet at the same time increase access to legal representation for underprivileged people.”
MP Saktiandi Supaat (PAP-Bishan-Toa Payoh) pointed out that a three- to four-member household with an income just above the ceiling could still struggle to pay the S$5,000 to S$8,000 of legal fees that private lawyers might charge for simple criminal defence matters.
In response, Ms Rahayu said the Government needs to be prudent and careful in spending taxpayers’ monies.
“The House knows that expenditures are increasing, and there is some resistance to how we raise the monies needed,” she said in her closing speech.
“The provision of legal aid has been the subject of abuse elsewhere, and we need to be fiscally prudent. We will start with S$1,500 and consider whether it should be further refined after the PDO commences operations. It depends on the available funds as well.”
CRIMINAL LEGAL AID FOR FOREIGNERS
MP He Tingru (WP-Sengkang) also asked if the Government would consider expanding PDO’s coverage to long-term residents subject to more stringent criteria.
She referred to Ms Parti’s case to highlight how a “sizeable proportion of the more vulnerable parts of our society include work pass holders”.
“These individuals would continue to have to rely on the goodwill of lawyers to act pro bono if they do not have the financial resources to engage a criminal defence lawyer,” she said.
Ms Rahyu responded that the Government’s intention is for the assistance under the Bill to be provided to Singapore Citizens.
“Non-Singapore Citizens can look at other avenues for legal aid,” she said.
HOW PDO WILL WORK WITH CLAS
Other MPs asked how the PDO would work with CLAS, and whether the Government would consider centralising all legal aid.
MP Hany Soh (PAP-Marsiling-Yew Tee) said a single centralised system will allow an applicant’s record to be visible to both parties, reducing the time needed to verify if the applicant previously benefited from either scheme.
Ms Rahayu said accused persons can use a common platform to apply for both schemes, either online or at a “physical shopfront” at the State Courts.
Cases that are time sensitive, like in remand cases where the eventual sentence could be shorter than the remand period, will be assigned to the PDO. Ms Rahayu said she does not expect many of such cases.
The remaining cases will be shared between PDO and CLAS.
“The actual number of cases taken on by the PDO or CLAS will depend on factors such as workload and capacity,” Ms Rahayu said.
“Apart from urgent cases that will be assigned to the PDO, we do not expect fundamental differences between the cases handled by PDO or CLAS.”
INDEPENDENCE OF PDO
Another issue that MPs raised was whether the PDO would encounter a conflict of interest, given that it is under MinLaw. The Attorney-General’s Chambers (AGC), where prosecutors are from, acts as the Government’s lawyers and also advises ministries.
MP Louis Ng (PAP-Nee Soon) highlighted potential areas of conflict given the “proximity” between MinLaw and AGC.
“There is some basis for concerns about conflict given that the Government’s position previously was that it may not make sense for the Government to be both prosecuting the accused and paying for their defence,” he said.
Ms Rahayu said PDO will be set up as a department under MinLaw but separate from the ministry, to ensure the Government has oversight of PDO.
She said the Government decided on PDO’s structure after studying common law jurisdictions such as the UK, Australia, New Zealand and Hong Kong, where officers are accountable to the executive arm but retain independence in day-to-day operations.
“This accountability is necessary to ensure better governance and fiscal control. Second, this structure ensures independence from the prosecution, which is under AGC,” she said.
“Officers in the PDO will be employed directly by the Ministry of Law and are placed on a different scheme from the officers in the AGC. They will report to the Permanent Secretary and Minister for Law. This ensures a clear separation of powers and responsibilities from the prosecution.”