Courts (Civil and Criminal Justice) Reform Bill

Mr Louis Ng Kok Kwang (Nee Soon): Sir, this Bill will support the digitalisation of proceedings and signal a focus on amicable dispute resolution, among other changes.

The Courts have shown remarkable resilience in this pandemic, adapting to ensure that the judicial system remains open to users and that justice is both done and seen to be done. I thank the Registry and judicial officers who have worked tirelessly to ensure the continuity and integrity of judicial processes.

I have three points of clarification to make.

First, I seek clarification on the Court's new power to order parties to attempt amicable resolution in civil proceedings. 

Amicable resolution, such as negotiation and mediation, work best when parties participate in good faith. Good intentions are critical. This point is underscored in the Rules of the Court. The Rules allow the Court to consider how parties acted during their attempts at alternative dispute-resolution when making its decision on costs orders.

However, with the new paragraph 23 of the First Schedule of the Supreme Court of Judicature Act, the Court can now order parties to attempt an amicable resolution. In such cases, the process is no longer voluntary and it raises four sets of questions about effectiveness and implementation. 

One, has the Ministry studied what cases are amenable to amicable resolution? Clarity on such situations will help the Court decide on what circumstances to order an attempt at an amicable resolution.

Two, what constitutes an attempt at amicable resolution? Will there be clear requirements to verify such attempts? For instance, it may be useful to require that parties attempting mediation go through an accredited mediator.

Three, how will the Court ensure that parties participate with good faith in attempts at amicable resolution? I can imagine a bad-faith party relying on the Court's order of amicable resolution as a strategic manoeuvre by parties to prolong litigation and financially wear down opponents. 

Four, will there be consequences of non-compliance with such an order?

The Minister's answers to these questions will help ensure that Court orders for amicable resolution do not get undermined by bad-faith actors.

My second clarification is on the new section 79, which gives legal immunity to the Court registrars and Court-appointed mediators for actions that they take as part of mediation or alternative dispute resolution for the Supreme Court. The immunity is limited to actions done in good faith and without any fraud or wilful misconduct.

This appears to mirror section 68(4) of the State Courts Act, which provides similar protections for judicial officers and Court-appointed mediators for alternative dispute resolution in the State Courts.

Alternative resolution processes, such as mediation and conciliation require different skills from hearing a case as an adjudicator. These specialised skills are honed by professional mediators and conciliators over years of training and experience. For this reason, judicial officers in the State Courts are required to undergo basic training in mediation.

With the extension of immunity to officers in the Supreme Court, will the Registrar, Deputy Registrars and Assistant Registrars be required to undergo training in mediation and other alternative resolution processes?

Will there be a minimum requirement that officers and mediators at both State Courts and Supreme Court must meet?

High quality training will ensure that alternative resolution is a realistic and cost-effective alternative to litigation. Accreditation is offered by the Singapore Mediation Centre, Singapore International Mediation Institute and International Mediation Institute, just to name a few.

In addition, who will be the Court-appointed mediators in the Supreme Court? Are there plans to set up an equivalent of the State Courts' Court Dispute Resolution Cluster in the Supreme Court?

How will the Ministry also support the growth of the private mediation service providers? Private mediation service providers stimulate our mediation sector with innovation and competition. With the expanded reliance on mediation and similar processes in Singapore, we should integrate and regulate such private providers carefully.

My third and final point is a proposal. Today's Bill amends the law to allow various proceedings at the State Court and Supreme Court to be heard by a live video link. This is a welcomed move that mirrors changes which have already taken place on the ground due to COVID-19.

However, with more proceedings taking place by live video link, there is also greater risk of issues which may undermine the security and integrity of Court proceedings. These include, for instance, unauthorised recording of Court proceedings, witness coaching or poor Internet connection affecting the quality of evidence presented to Court.  

Will the Court consider implementing a protocol for proceedings conducted by way of a live video link to standardise the way video link hearings are conducted? Such protocol should address issues from the testing of the video link to the arrangements that should be in place for witnesses to give evidence remotely.  

Sir, notwithstanding these points, I stand in support of the Bill.

Mr K Shanmugam (The Minister for Law):  Mr Speaker, Sir, I thank the Members who spoke in support of the Bill. Let me address their questions now.

First, on the protocols for proceedings via video-link.

Mr Louis Ng asked whether the way that live video proceedings are conducted can be standardised. He mentioned the need to maintain the security and integrity of Court proceedings.

The specific ways for participation in remote hearings are published in the Registrar's circulars and set out on the Courts' websites. The specific protocol that applies may vary, depending, for example, on the type of case and the litigants involved.

On the security and integrity of proceedings, the Courts have protocols in place. We will take the point and emphasise this to the Courts.

Mr Murali Pillai asked how conversations between accused persons in prison and their counsel joining in from another location will be kept confidential and how accused persons will continue to have access to lawyers during remote proceedings.

The Singapore Prison Service (SPS) has a set of purpose-built video-link facilities. In the course of a remote hearing, over Zoom or tele-presence, SPS will facilitate the private consultation sessions between accused persons and their lawyers. These can be done through the telephone, a virtual breakout room on Zoom or a separate cubicle with a Zoom session between the accused person and his lawyer.

Mr Desmond Choo expressed concern with the rise of deepfake technology and the impersonation of parties or witnesses.

The actions mentioned by Mr Choo are, of course, criminal offences. In terms of safeguards, the Courts are considering adopting new identification technologies. They are planning for them under the National Digital Identity project.

Ms Hany Soh proposed the creation of a virtual Court platform with an integrated chat function and a dynamic queue system and she explained the benefits of it.

The Courts are working on several improvements that are aligned with Ms Soh's suggestions.

First, there will be a new queue management system. It will allow the judge to re-sequence parties according to some specified criteria. There may also be a forecast of the number of cases which are pending, which can be made visible to all.

Second, the Courts are also enhancing the SG Courts app to allow for formal "on the record" discussions between lawyers and the Court.

Ms Soh has also asked about assistance schemes for smaller law firms to defray the cost of purchasing virtual hearing equipment. She has also asked whether filing fees can be reviewed and whether the Courts are able to provide more spaces for practitioners to communicate with their clients in-person.

She did mention that MinLaw has been working on initiatives to help law firms, especially the smaller ones, ramp up their use of technology. These efforts include Tech-celerate for Law and Tech Start for Law, as Ms Soh has pointed out.

We will build on these to further help law firms adopt technology and transit to remote hearings. This will also help with their transition onto the electronic Court systems.

Major initiatives that law firms can look forward to will be a Legal Tech Platform which will enable, in an affordable way, law practices and lawyers to work anytime, anywhere.

This is a matters management tool designed specifically around legal workflows. My Ministry is actively working on this.

We aim to integrate the platform with commonly used technology solutions like practice management solutions, document management solutions, communication tools like WhatsApp and Microsoft Teams and Government systems like LawNet, eLitigation and ACRA that lawyers commonly interact with.

This platform will be a one-stop shop to help lawyers access key functions from such solutions and systems more seamlessly.

We aim to introduce the platform to the industry in phases, starting from the first quarter of 2022.

We are also putting together an Industry Digital Plan, which will provide a step-by-step guide for lawyers to assess their own digital readiness and provide information on the technology solutions commonly used by lawyers, which will be mapped to different stages of digital maturity.

The industry digital plan will be launched in tandem with the legal technology platform.

On Ms Hany Soh's question about defraying hardware costs, generally, the Government does not favour any particular group, say, lawyers and so on, to buy equipment for their practices. But we made an exception last year because of COVID-19. We worked to provide 80% funding support for all SMEs, including law firms, to procure laptops and commonly used software, such as Microsoft Office.

On the provision of physical space, there are already many spaces within existing courthouses which lawyers can utilise to meet with their clients.

As for filing fees, we agree. Filing fees should be reasonable. We will pass the feedback onto the Courts.

Moving on to paper hearings, Mr Zhulkarnain Abdul Rahim sought clarifications on paper hearings. Let me take each of his questions in turn.

First, whether parties can opt in for paper hearings. If parties prefer the matter to be heard on paper, they can inform the Court. The Court, ultimately, has the final say but it will take this into account when considering whether to proceed with a paper hearing.

Second, on the benefits of paper hearings. It, obviously, saves costs and time, provided the matter can be dealt with through a paper hearing.

Third, Mr Zhulkarnain asked whether there can be a fast track for the case management of paper hearings. That, really, has got to depend on each case, its nature, complexity and how prepared parties are for a speedier management of the case.

Fourth, Mr Zhulkarnain asked about paper hearings in criminal proceedings. In the context of remote hearings, Mr Sharael Taha also underscored the need to be mindful of the human aspect in criminal matters. So, we have to make sure the use of paper or asynchronous hearings do not undermine the accused's right to be heard.

This Bill protects the accused's right to be heard. The Courts will exercise the discretion to conduct paper or asynchronous hearings judiciously.

Mr Murali Pillai also raised a query on how the Courts will ensure that litigants-in-persons (LIPs) are not disadvantaged by remote or paper hearings.

LIPs who have concerns with using remote technology or with a paper hearing can notify the Courts. LIPs will be encouraged to take advantage of remote or paper hearing processes but, ultimately, it is an option for them.

If a litigant does not have the equipment or Internet connectivity, he can, of course, come to Court to use in-Court facilities that do cater for remote hearings.

The Courts have published detailed guidelines on the conduct of remote hearings. Users may also reach out to the Courts to get help.

Dr Shahira Abdullah mentioned that under the amendments to the Administration of Justice Protection Act, litigants and lawyers will now be prohibited from making their own non-official audio transcripts of Court proceedings.

The amendments under this Bill do not change the underlying position today. Today, it is already contempt of the Court to record physical Court proceedings. The amendments simply update the provisions so that unauthorised recordings of remote Court proceedings will likewise be in contempt.

Mr Louis Ng asked a number of questions.

One, on the scope of the Court's powers to order parties to attempt amicable resolution. An attempt at amicable resolution may be appropriate where strict legal remedies may not necessarily address the underlying concerns and interests of parties or where litigation is not cost effective.

Second, where parties have gone through formal processes, such as mediation, neutral evaluation, settlement negotiations with exchange of draft settlement agreements, these are all likely to constitute clear attempts at amicable resolution.

Third, Mr Louis Ng asked how the Court will ensure that parties will make good faith attempts at amicable resolution and what would be the consequences of non-compliance with the Court's direction to attempt such amicable resolution. Mr Desmond Choo also sought clarification on whether the Court will consider the intentions of the parties before exercising the powers.

The short answer to Mr Louis Ng's question is that it is not easy to ensure good faith negotiations. But in deciding whether to order parties to attempt amicable resolution, the Courts will take into account all the facts before them, including whether any of the parties have refused to attempt to resolve the dispute by amicable resolution, and why. Where necessary, the Courts may require the parties or their counsel to explain why the matter cannot be settled amicably.

Mr Louis Ng asked whether Registrars will be required to undergo training in mediation and other alternative dispute resolution processes (ADR), and whether there will be a minimum requirement that must be met and who the Court-appointed mediators will be.

In the State Courts, mediation may be conducted by specially-trained District Judges or Court Volunteer Mediators. The District Judges are experienced trial judges. They have extensive experience in mediation and other ADR processes, and they undergo continuous training in ADR.

As for Court Volunteer Mediators, they must minimally be an Associate Mediator with the Singapore Mediation Centre with at least three years of mediation experience. Alternatively, they should minimally hold a Level 3 qualification as a Singapore International Mediation Institute Accredited Mediator.

For the Supreme Court, a Registrar conducting ADR, or a Court-appointed mediator, will similarly be trained in the particular ADR processes.

Mr Louis Ng asked if there are plans to set up an equivalent of the State Courts' Court Dispute Resolution Cluster in the Supreme Court. Given the nature of the disputes and the value of the claims filed in the Supreme Court, there are no immediate plans to do so.

Lastly, on Mr Louis Ng's question on how MinLaw supports the growth of private mediation service providers, MinLaw's role is to ensure a conducive environment for our dispute resolution ecosystem to thrive. We work closely with mediation service providers, such as Singapore Mediation Centre (SMC), Singapore International Mediation Centre (SIMC) and so on, to ensure that their service offerings address the different user needs and complement the Court-based dispute resolution mechanisms.

We also have the Singapore International Mediation Institute (SIMI). It looks at accreditation and mediation standards to support professionalising mediation.

Mr Zhulkarnain Abdul Rahim asked about security for costs in the context of an application for freestanding interim relief. A defendant may apply for security for the defendant's costs of the action, on the basis that the applicant has no nexus or assets in Singapore.

On vessel arrests, these fall outside the scope of freestanding interim relief that the General Division can grant. This is consistent with the UK position.

Mr Zhulkarnain sought clarification regarding the Singapore International Commercial Court (SICC)'s jurisdiction. He asked when the action, and the counterclaim taken as a whole, would still maintain an international and commercial character. The assessment cannot be a purely quantitative one. The Court will have to consider all the relevant facts and circumstances, assess whether the counterclaim, third-party proceedings change the nature or substance of the action in such a way that the action, seen as a whole, no longer maintains an international or commercial nature.

Mr Zhulkarnain also asked about the consolidation of proceedings under SICC and whether similar considerations would apply if one proceeding is in a different Court from SICC. The consolidation of proceedings under SICC may require different considerations, as parties would have already commenced separate proceedings. If proceedings are not before the same Court, but a party believes that an application for consolidation is necessary, then a transfer application should be taken out to bring the proceedings before the same Court, before applying for any consolidation.

Mr Zhulkarnain also pointed out the joinder of a non-consenting party to SICC proceedings, and spoke about the enforcement of an SICC judgment in a foreign jurisdiction. It is possible for a party to be joined to existing proceedings before SICC without that party's consent; just like it is possible for a party to be joined to existing proceedings before the High Court or the State Courts without that party's consent. There are rules on how that takes place. But, of course, the requirements for proper service on that party will still apply.

With regard to enforcement, the enforcement of a SICC judgment against a party, who has been properly served, but has not submitted to SICC's jurisdiction, will be similar to the enforcement of a judgment issued by the General Division of the High Court against a party that has not submitted to the jurisdiction of the General Division.

As with any judgment of the General Division of the High Court, an SICC judgment is likely to be enforceable in major commercial jurisdiction and many other regional ones. There are standard laws on how this takes place.

Mr Pritam Singh, Ms Shahira Abdullah, Mr Zhulkarnain and Mr Murali Pillai have raised a number of queries regarding the Attorney-General (AG)'s right to intervene. Let me make some broad points before addressing the specific queries.

First, as my colleague Minister Edwin Tong mentioned in Parliament yesterday, the statutory framework is based on the established role of the AG. He is the Guardian of the public interest. This has been recognised by our Courts as well as by Members who have spoken on this Bill and previously. The proposed amendments are consistent with that principle.

The Court of Appeal, for example, has noted that the AG intervenes on a non-partisan basis. He is disinterested in the interests of the parties to the litigation. The issues that he raises most logically, must have a discernible impact beyond the specific parties and the specific dispute before the Court.

Second, it is important to understand the context in which this proposal arises. Let us say you have a civil case between two parties. Prima facie, nothing to do with the state, or the public. But in the course of the dispute or from the pleadings, or in the course of the arguments, issues arise which, potentially, are detrimental to the public interest.

For example, the AG has intervened on the applicable legal test for negligence in relation to the provision of medical advice, in the case of Hii Chii Kok v Ooi Peng Jin, between two parties. But the test that is laid out by the Courts on what amounts to negligence will impact on future claims on the basis of medical negligence. So, it will impact both patients and doctors, and they cannot come forward and intervene in this case. The only party who can do so in the public interest is the AG. So, this relates to the provision of medical advice.

To take another example, the AG has intervened on the nature and scope of professional and ethical duties. For example, in Deepak Sharma v Law Society of Singapore, on what duties are owed by lawyers in making claims for costs. In such cases, it is sensible, obvious, that the AG must have a right to intervene, to protect the public interest and put forward arguments. Ultimately, of course, it is up to the Courts to decide on the validity of the arguments.

So, the amendments provide for the right of the AG to intervene for that purpose but, ultimately, the Court decides on the merits of the substantive case. The AG's presence assists the Court and also informs the Court of the possible broader implications on the public interest.

Third, the AG's application to intervene is only an intermediate step in the dispute. Broadly, there is a two-stage process. At the first stage, the Court will check to ensure that the AG has set out adequate details, the basis, grounds for his request to be added as a party. Only if the Court is satisfied that the AG has explained the reasons for his intervention sufficiently, then the Court will grant permission for the AG to intervene. Of course, that is prima facie.

If anyone wishes to oppose the AG's intervention, then they may apply to set aside the Court's permission.

This brings us to the second stage, which will involve the AG and the other parties, because the first stage is ex parte. At this stage, the parties can raise any concerns they might have about the AG's addition to the proceedings. If any party objects to the intervention, the Court will assess whether the permission that has been granted to the AG should now be reversed.

The Court's assessment will be made based on the interests of justice. It can take into account and balance various considerations, including the possible inconvenience, costs to a party, if AG is added; and the potential benefits if AG is allowed to join the proceedings, to add his perspectives on the matter.

Any Court will proceed on the basis that the AG is a Guardian of the public interest, and if he comes to Court and says there is an important matter of public interest here, it is, generally, not assumed that the AG is being frivolous. There must be a serious point and it is a matter of public interest. When someone comes in, particularly the AG, to put forward the arguments, the Court knows that it will be of tremendous assistance to the Court. Ultimately, how it decides is for the Court, but the Court gets tremendous assistance from the AG.

Mr Pritam Singh asked if this is a shift in the common law position. He has asked why not we just stick with the existing position, why do we need a new framework. The common law position does allow AG to intervene. For example, in the case of ARW v Comptroller of Income Tax, the Appellant was a private company, which applied for specific discovery of internal documents belonging to IRAS. So, this is a taxpayer, I believe, who sought documents from IRAS, but it goes beyond that to a broader principle of when you can apply for documents against a Government agency. Whether it should be allowed or it should not be allowed is a matter for the Court. Whether such a principle should apply to all public departments in the context of a private civil dispute, albeit against IRAS, is a matter of public interest. The AG should be entitled to put forward his position why it is or it is not in the public interest to make a particular order. And that is for the Courts to decide.

So, the AG applied to intervene to make representations on the issue of public interest privilege under the Evidence Act. Application for intervention was filed in the High Court. The company resisted the application. There was dispute on the addition of the AG to the proceedings. It was resolved by the Court of Appeal 20 months later.

The Court of Appeal allowed the AG to intervene, affirmed the AG's position as Guardian of public interest and it further held that if the AG does not intervene despite taking the view that there are issues of the public interest, then the AG would, in fact, be in dereliction of his public duty.

All that is good, but 20 months have been lost. Taking into account what the Court of Appeal had said and the fact that you do not want these things to be unnecessarily delayed, I will say this to Members. As in the cases cited, parties to civil litigation are often seeking to interpret the rules in their own favour. If they succeed, sometimes, it is the man in the street who will pay the bill, ultimately, if it is against the public interest. The AG is intervening to protect the man in the street – the common man.

We are moving to enact a clear statutory framework for the AG's right to intervene, to lend certainty to this area of law, so that parties can proceed expeditiously to the substantive issues in the case.

As I have said, the addition of AG to the proceedings is a procedural step. It does not mean that either of the original parties has somehow "lost" or "won" the original lawsuit, though I can understand, they may not like what the AG is going to say. In that sense, they would prefer if the AG is not present, but that is not the way hearings and arguments should go.

Mr Pritam Singh has cited various statutes which expressly provide for the AG's right to intervene: Charities Act, Industrial Relations Act. And he is right. In those pieces of legislation, the AG has an unqualified entitlement to intervene in the specified categories of proceedings. It is broadly similar principles, but unqualified. Here, the proposal is that even the addition itself, the parties can oppose if they wish; then, the Court has got to decide after hearing both sides.

Let me now turn to some of the specific queries. Mr Murali Pillai had a suggestion that the AG's role as Guardian of the public interest be codified in the Constitution. As mentioned, the AG's role as Guardian of the public interest has been affirmed by the Court of Appeal in a number of cases. It has also been recognised by this House yesterday by Mr Murali Pillai and Mr Pritam Singh. My Ministry will study this suggestion whether we should put it in the Constitution the AG's established role in this respect, taking into account how this area of law and the jurisprudence develop.

Mr Pritam Singh asked if the amendments are intended as a contingency or whether there are new areas of public interest that the Government is concerned about.

I am not sure what Mr Pritam Singh is concerned about; or that we always think ahead and are planning something else that he is concerned about. The short answer is, the amendments say what they say on the face of it. They are meant to lend clarity to the procedure for the AG to intervene and to minimise satellite litigation and delays. But it is not going to be possible to predict how other areas of laws in which such interventions may be required in the future, might take place. And what questions of public interest may arise, will depend on the facts and circumstances of each case.

Mr Zhulkarnain also asked whether there will still be a need for AG to intervene if a party to the proceedings can put forth an opposing view to the Court.

The AG's role is not to put forward supporting or opposing views but to represent the public interest and what, in his view, is best stated in terms of the public interest, whereas the views of parties to the proceedings will obviously be influenced by their respective interests. And, sometimes, there cannot be a substitute for the non-partisan views of the AG. The parties to a civil litigation are not there to advance public interest. They are there to advance or forward their own case. Sometimes, it is necessary that somebody else is there to protect the public interest.

Mr Zhulkarnain also asked whether the Court can instead invite the AG to make submissions as an independent counsel under the Legal Profession Act. The role of an independent counsel is to address the Court on specific issues of law, at the invitation of the Court. Whereas the AG's submissions on issues of public interest may well go beyond specific issues of law. Unlike an independent counsel, the AG will be deemed a party to the proceedings if he is added on. And when he intervenes as Guardian of the public interest, like other parties, he will be able to make applications, file affidavits and will also have the right of appeal.

Mr Murali Pillai asked whether the AG has a duty of full and frank disclosure, since he will be making an ex parte application when applying for permission of the Court to intervene. The AG will have a duty to disclose properly his grounds for intervention to the Court.

Dr Shahira asked who should bear the costs where the parties choose not to appeal the Court's decision but the AG decides to do so. These are properly matters for the Courts. The Courts, generally, understand that the AG does not act frivolously, vexatiously or egregiously in pursuing the public interest, but, ultimately, it is a matter of discretion for the Courts.

Mr Sharael Taha and Dr Shahira spoke in support of the terminology amendments. Laws must be clear and easy to understand. The new rules of Court will contain a clear list of definitions upfront. Dr Shahira had highlighted the differences in terminology amendments that will apply across the Courts and said that this might cause confusion. For the Family Justice Courts (FJC), the rules are being reviewed and will be revamped in due course. The terminology changes will be effected with the revamp and the majority of which are aligned with other Courts.

However, because of the unique nature of family proceedings, some terminology amendments will be specific to the FJC. For example, the terminology of parties in a divorce. The naming of parties as "applicants" and "respondents" is intended to avoid calling them "claimants" and "defendants". Calling someone a "defendant" sometimes could be seen as pejorative. So, this is really in line with FJC's move towards therapeutic justice.

For the Singapore International Commercial Court (SICC), the differences are relatively limited. They, generally, relate only to two items. These differences arise as a result of the differences in Court procedure in SICC and the General Division. The procedure in SICC is specifically tailored to facilitate international commercial litigation. We, therefore, do not think that this will give rise to confusion since the respective rules of Court will make clear the procedures that should be used.

On legal representation, public education, building a world-class legal system raised by Mr Sharael Taha, these are issues which my Ministry is working on. And I would say our legal system is, generally, highly regarded.

That, Sir, brings me to the end of my responses to the questions raised. I believe I have answered all the questions raised by Members. And with that, I beg to move, Sir.

Source: Hansard(1), (2)