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The Hour of Criminal Legal Aid

A review of the history of the Legal Aid and Advice Act in modern Singapore, and a recommendation with respect to the need for legal aid in non-capital criminal cases, as envisaged by the original proponents of the Act.

The Advent of Legal Aid

At the second reading of the Legal Aid and Advice Bill to make legal aid and advice readily available for persons of limited means and to enable the cost of the service to be defrayed out of monies provided by the legislature, the then-Chief Minister of Singapore, Mr. David Marshall, spoke on attempts made in 1939. In 1939 Mr. Marshall had sought to obtain the assistance of the Bar at its annual meeting to put forward a scheme for free legal aid. The Bar Committee subsequently appointed him as a one-man committee. His report was duly received and rejected. The Bar Committee, Mr. Marshall said, wanted to shut him up. He was therefore very happy to assist in making a social service which he considered essential in every democratic society to help the poor.

The Bill was before the legislative assembly at a time when constitutional changes were taking place. The Bar Committee doubted the wisdom of giving a Minister unlimited powers to make regulations. Mr. Marshall feared for the life of the Bill. Pleading for the poor he said:

any motion to commit the Bill to a select committee is a motion to kill it.

Mr. Lee Kuan Yew said that politically his Party supported the principle of the bill and suggested it would be advisable to hold up the coming into operation of the Bill if it passed through all its three stages. His suggestion resulted in the Bill being passed through all its three stages.

A form of legal aid existed in 1956 before the Legal Aid and Advice Bill was introduced. It was then available only in the High Court and not in the lower Courts. It was a privilege given to indigent persons to prosecute an appeal, without payment of fees and the costs incident to such prosecution. The applicant however could not possess property exceeding S$300, in special circumstances S$750 in value, and an applicant's income from all sources could not exceed the fixed sum. Free legal representation however, was provided where necessary to persons charged with murder. This continues to be the practice in Singapore. Legal advice was provided as a free service by the then Department of Social Welfare. This did not include representation in court.

Justice and Right

The then-Minister of Social Welfare, Mr. Lee Yew Hock, moving the Bill for the second time, said that the principle on which the case for legal aid legislation might be based is in the Magna Carta.

To no man will we deny, to no man will we sell or delay justice or right.

The idea of fairness to rich and poor alike required no man to suffer in the prosecution or defence of his legal rights for want of professional assistance and advice. All citizens should enjoy equality and there should be no necessity or the need for a golden key to unlock the door to the courtroom. Fairness to rich and poor alike required no man to suffer in the prosecution or defence of his legal rights for want of professional assistance and advice.

Putting the need for legal aid in the context of the judicial system, the Minister said the success of any judicial system depended on three factors:
a The courts of the country must be impartial;

b The laws administered must be fair and reasonable; and

c The courts must be freely accessible to all.

There was a need for provision of legal aid to ensure the success of the judicial system and its equal application to all - whether wealthy or indigent.

The objection to the grant of legal aid in criminal cases where the public defender and the prosecutor are both public officers was considered. The Minister did not think it would be right if the same department was to be responsible for both the conduct of the prosecution and defence. The Legal Aid Organisation would therefore come under the control of the Director of Legal Aid whose department would be separate and distinct from that of the Attorney-General's. The Minister said that it should not be the object of the State primarily to obtain convictions but to arrive at the truth and to mete out justice. The proper balance would be achieved by the office of the Director of Legal Aid. The time was now overdue for a comprehensive legal aid service.

The Legal Aid and Advice Ordinance (No. 19 of 1956) - to make legal aid and advice available for persons of limited means and to enable the cost of legal aid granted to be defrayed for monies provided by the Legislative Assembly) - received the assent of the Governor on 12 June 1956.

At the second reading of the bill the minister said that the Bill was arranged in five parts for the Governor to appoint different dates for the coming into force of the different parts and provisions of the Legal Aid and Advice Bill to enable the Legal Aid Organisation in Singapore to start modestly and expand as the need arose. It would also enable costs to be controlled since there was difficulty in making an accurate estimate of the costs of operating legal aid. Legal Aid was initially limited to proceedings in the High Court. Costs were estimated to be in the vicinity of S$280,000 per annum.

Legal Aid in Criminal Cases - or the Lack Thereof

Commencement of legislation

Any legislation may state that it is to come into force on such date as a specified Minister may by order make by statutory instrument or as otherwise appointed. This method of commencement gives all the advantages of extreme flexibility. Before a new Act is brought into operation, administrative action has to be taken. Consultations may have to be held with interested parties such as the Bar Committee. Explanatory material for the guidance of officials and the public may have to be prepared and so on. The need for wanting different dates for the coming into force of the different parts of an Act is understandable. The question is whether after an Act or Ordinance has been passed by Parliament, can a government make the decision not to make a commencement order? Can a government lawfully decide as a matter of policy never to bring an Act or part of an Act into force at all?

One view is that if the Act states that the Act or a part of the Act shall come into force on a date to be fixed by order made by the Minister and provides no more than that, it is within the discretion of the Minister as to when he brings the Act into force. Where there is an opposition party alive to what is taking place pressure may be brought to bear on him and require him to justify any inactivity. It would appear on the face of things there is otherwise no way by which the Minister can be compelled to bring an Act into operation. There is however, another point of view. A commencement order is a statutory instrument. Therefore an application can be made to the High Court for judicial review. In R v Secretary of State of the Environment ex parte Greater London Council (1983), judicial review was allowed where there was a failure by a minister to make a statutory instrument of a different kind. Hodgson J said:

Parliament is supreme, and the Act is an Act of Parliament. Until Parliament amends or repeals it, it remains the will of Parliament. The fact that the executive of the day do not want to do something which is required by an Act of Parliament to do is nothing to the question: and if that executive because of no other reason than its own political posture exercises its discretion in a way contrary to the intention of Parliament as expressed in the legislation then the courts can and will intervene.

In Singapore the Constitution, not Parliament is supreme. Courts of construction must ignore the fact that what to the majority in one Parliament seemed a defect in the existing law may appear the reverse to their successors. Judges are not to enter into politics. If an Act has been passed in a particular Parliament it must be assumed that the majority of legislators in that Parliament considered there to be a defect in the law needing remedy.

It is submitted that where a Minister must make orders before an Act can be brought into force and time was requested in Parliament to enable the organisational structure to be set up, the Minister must perform his duty within a reasonable time. Any other reading would enable the Minister to frustrate the clear intention of Parliament. This is contrary to the whole essence of rule of law.

The coming into force of the Act

In the 1970 Revised edition of the Laws of Singapore the Legal Aid and Advice Ordinance appears as the Legal Aid and Advice Act (Chapter 9) (the 'Act'). Part One of the Act came into force on 1 July 1957. Parts Three, Four and Five came into force on 1 July 1958. Part Two of the Act on Criminal Legal Aid was not brought into force.

The case of Haw Tua Tau v PP [1981] SGPC 1 (Privy Council),
[1982] A.C. 136

The case of Haw Tua Tau [1981] SGPC 1 (Privy Council), was an appeal from the Court of Criminal Appeal of Singapore to the Privy Council. The case was heard by the Privy Council in 1982. It is a very important case and has been the subject of much discussion. At the appeal before the Privy Council, Stuart Mckinnon QC, Jonathan Harvie and Richard King appeared for the Public Prosecutor. The Law Report Appeal Cases gives a brief summary of the submissions made by counsel. It includes the following statement:

'Reference was made to Section 5 of the Legal Aid and Advice Act, Statutes of the Republic of Singapore, 1970 rev.c.9'. [1982] A.C. 136-145

Section 5 of the Act reads as follows:

S. 5 (1) Any person committed for trial under the provisions of the Criminal Procedure Code may at any time within 14 days after committal, apply in writing in the prescribed form to a judge of the Supreme Court for legal aid for his defence.

(2) Any person charged in a District Court may apply in writing in the prescribed form to a District Judge for legal aid for his defence.

(3) Every application under the provisions of this section shall be accompanied by a statutory declaration verifying the facts stated in the application.

The report of the case besides stating that reference was made to section 5 does not state why the Prosecution found it necessary to make reference to section 5. The question is whether the Prosecution or the State could thereafter say that section 5 of the Act and Part Two of the Act were not brought into operation after reference was made to them before the Privy Council, then the highest court of Singapore, and the commencement of the Constitution of the Republic of Singapore on August 9, 1965. The Act must be regarded as 'existing law' within the meaning of Article 162 of the Constitution.

We must now go from the Privy Council in 1970 to the Parliament of Singapore in 1995. On 7 July 1995, the Minister for Law at the reading of the Legal Aid and Advice Bill which repealed and reenacted the provisions of the Act said:

The main objective of the Bill is to update the means test for eligibility for legal aid without increasing the manpower resources available in the Legal Aid Bureau. The Bill deletes Part Two of the Act on Legal Aid in Criminal Cases which has never been brought into operation.

Then Nominated Member of Parliament Associate Professor, Walter Woon, who spoke in support of the Bill said:

... I would like to make a brief comment on the question of criminal legal aid. In the old Legal Aid and Advice Act, Part II, as the Minister has said, was never brought into force. It is well and good to give legal aid to civil litigants. The danger, of course, of giving legal aid in civil litigation type situations is that sometimes one encourages frivolous litigation. And when we are talking about civil litigation, it is a question of money. But in the case of criminal prosecutions, very often, a poor person cannot afford a lawyer. Here, it is not just money at stake. The person could go to jail.

In capital cases we have assigned counsel. But in all other cases, the only legal aid that poor people can get for criminal cases is the Criminal Legal Aid Scheme run by the Law Society of Singapore. This is financed, entirely, I think, out of the generosity of the members of the legal profession. It seems paradoxical that in something like civil legal aid, the Government should provide funds. But in matters where a person could actually lose his livelihood, lose his freedom, there is no such provision of funds.

May I ask the Minister, who said that it is not the Government's policy to provide criminal legal aid, to reconsider this, to at least look into the possibility of some sort of criminal legal aid for poor people. These are the people who need this most. Millionaires can buy legal advice by the ton, gold-plated. They can have a media circus, as we have seen in other countries. It is the poor who need criminal legal aid most of all. And I do not think in this kind of situation that leaving it to private enterprise is an entirely satisfactory matter.

Conclusion

Then-Associate Professor Walter Woon is now the Attorney-General of Singapore. He has very properly pointed out the paradox in our legal system. In civil matters we have legal aid funded by the Government but where liberty and livelihood and freedom is concerned there is no such provision. Worse, provisions made in an Act were not brought into force. Part Two now stands repealed.

Part Two of the Act of 1970 consisting of Sections 5,6 and 7 should be resurrected so that legal empowerment of the poor in criminal cases envisaged by one of Singapore's founding fathers is realised. The sections enacted in 1956 and repealed in 1995 could also be resurrected. The sections in the Statutes from 1956 till 1995, before they were unceremoniously repealed are as follows:

5. (1) Any person committed to trial under the provisions of the Criminal Procedure Code, 1955, may at any time within fourteen days after committal, apply in writing in the prescribed form to a Judge of the High Court for legal aid for his defence.

(2) Any person charged in a District Court may apply in writing in the prescribed form to a District Judge for legal aid for his defence.

(3) Every application under the provisions of this section shall be accompanied by a statutory declaration verifying the facts stated in the application.

6. (1) Any person convicted of and sentenced for an offence by the High Court who desires to appeal to the Court of Criminal Appeal against the conviction or sentence may make application to the Judge by whom he was sentenced for legal aid for the preparation and conduct of such appeal.

(2) Any person convicted of and sentenced for an offence by a district Court who desires to appeal to the High court against the conviction or sentence may make application to the Judge by whom he was convicted or sentenced for legal aid for the preparation and conduct of such appeal.

(3) Where the Public Prosecutor has lodged notice of appeal against any judgment, sentence or order pronounced by a District Court the respondent may make application to the judge by whom the judgment, sentence or order was pronounced for legal aid for resisting the appeal.

(4) Any person making an application for legal aid under the provisions of this section may be required to furnish a statutory declaration verifying any facts stated in the application.

7. (1) Where the application is made to a judge under the provisions of section 5 or section 6 of this Ordinance the judge may refer the application to the Director of Social Welfare for a report on the means of the applicant.

(2) If the judge is of the opinion on the facts brought before him including any report by the Director of Social welfare means to obtain legal aid and that is desirable in the interests of justice that such legal aid such legal aid should be supplied, he shall certify this to the Director of Legal Aid, who may thereupon cause arrangements to be made for the defence of that person and payment of the expenses of all material witnesses or for the preparation and conduct of the appeal or for resisting the appeal, as the case may be.

(3) Any doubt whether an applicant's means are sufficient to enable him to obtain legal aid or whether it is desirable in the interests of justice that he should have free legal id shall be resolved in favour of the applicant.

(4) For the purposes of this Section -
"Director of Social Welfare" means the person for the time being executing the duties of the Director of Social Welfare and includes such other officers as the Minister may, by notification in the Gazette, declare to be vested with the powers of the Director of Social Welfare for the purposes of this section.

In civil proceedings we have full discovery. It ensures a fair trial. It seems odd that in matters where a person may actually lose his livelihood or lose his freedom there is no discovery by the prosecution. The Minister said that it is not the Government's policy to provide criminal legal aid. He was invited to reconsider it. May I also invite the Government and the Attorney-General to empower the poor. The danger of losing livelihood and freedom is real. Consideration should also be given to giving full discovery in criminal cases in the lower courts.

K S Rajah, SC
Harry Elias Partnership
E-mail: [email protected]