Mr Hri Kumar Nair’s appointment to the Deputy Attorney General’s position should not be of any concern because he is one of Singapore’s top legal minds who is well qualified for the post, said two Law ministers in Parliament on 2 March. Also, other countries too have politicians in the Attorney General (AG) position.
The ministers were responding to a question posed by the Workers’ Party Member of Parliament, Sylvia Lim. She had raised concerns that Mr Nair’s new role could potentially undermine public trust in the Attorney General’s Chambers (AGC) as Mr Nair had been a PAP MP.
It is the first time that a politician is being appointed to the AGC, and assumes a public prosecutor role.
“The AGC as an organ of state should be independent and ready to rein in the Government if it acts unlawfully or is abusing its power,” Ms Lim said. “It is my view that filling a constitutional post in an organ of state with a party politician is not ideal as it carries a risk of undermining public confidence in the AGC’s stated mission of fair and independent prosecutions.”
Senior Minister of State for Law, Indranee Rajah, replied that it was “perfectly acceptable” for Mr Nair to take on the role, and that his appointment is nothing unusual as some countries also have politicians and sitting MPs as AGs.
“In the UK, the AG is a cabinet minister,” Ms Indranee said. “He is also the chief legal advisor and also oversees the prosecution service. Australia has a similar system – the AG is a member of the legislature. In the US, the current AG resigned from the Senate just before being appointed AG and continues to be a member of the Republican Party.”
Singapore, she said, has “adopted a slightly different model.”
“In our system, the AG and AGC officers are not politicians and are not members of political parties. But it is going too far to suggest that AGC officers must not have previously had any links with any political party.”
She said that the “ultimate decider” of a case is the court, not the AG.
“While the AG takes a position on whether to prosecute, it is the court that eventually decides on innocence or guilt,” she explained. “That is why in many countries it is perfectly acceptable for the AG to be a politician.”
But even so, Ms Lim said that by deciding which cases would go to prosecution, the AG has “very wide prosecutorial discretion”.
Law Minister, K Shanmugam, also rose to defend Mr Nair taking on his new job from 1 March.
Now, contrary to what the two ministers have sad, things are not as straightforward as they seem to imply – that other countries too have politicians who are AGs and thus it is not unusual for Singapore to do the same, and anyway, ultimately it is the courts which decide on guilt.
AGC’s power over life and death
Let’s take the second point first.
While it is true that it is the courts which decide on cases which come before it, in Singapore sometimes things aren’t as straightforward.
Take, for example, the issue of the death penalty.
A convicted death row inmate’s last chance of having his death sentence commuted to life imprisonment rests entirely in the hands of the Public Prosecutor, one of the roles of the AGC.
Under amendments to the Misuse of Drugs Act (2012), the Public Prosecutor can grant an inmate a Certificate of Cooperation (COC), which would then enable the inmate to apply to the court to have his sentence commuted to life imprisonment, thus having his life spared.
The courts would then grant such an order, often as a matter of course.
However, if the Public Prosecutor denies the inmate the COC, it effectively condemns the inmate to death.
The Public Prosecutor’s decision on whether to grant the COC to an inmate is not opened to judicial review, unless he is proved to have made that decision on bad faith or malice, which is extremely hard to prove.
Also, the decision-making process itself is hidden behind the closed doors of the AGC. Neither the inmate nor his lawyers are given reasons or explanations on why the Public Prosecutor has decided either way.
So, it is not true that all cases are decided by the courts – the AG, through his public prosecutorial role in this instance, does in fact decide on the life and death of an inmate, and his decision is not open to the courts to question.
Not unusual for politicians to be AGs yes, but…
Now, let’s move on to the first point – that it is not unusual for a politician (or former one) to be appointed AG because this happens in other countries as well.
Ms Indranee is correct, of course. The three countries she mentioned – Australia, the UK and the US – all have AGs who are members of political parties, and in the case of Australia and the UK, they are sitting ministers as well.
But, as we shall see, their appointments have not been without controversy. Indeed, there have been calls for reform to the AG role, so that there is distance between his responsibilities as protector of public interests and his role as a legal adviser to the government, among other things.
In the UK, this was particularly significant after the Iraq war, when the AG was seen as having changed his position, after alleged government interference, on whether it was legal for the government to go to war.
In 2007/8, a Select Committee was convened to look into whether the AG’s responsibilities should be relooked, so that there is no political conflict of interests between his two roles.
The current AG in the UK (for England and Wales) is Jeremy Paul Wright, PC QC MP. He is a member of the Conservative Party and the current Member of Parliament (MP) for the constituency of Kenilworth and Southam in Warwickshire.
He is also a Cabinet minister and therefore attends Cabinet meetings.
Political independence of the AG
One of the issues which concerned the Committee was the political independence of the AG.
In its response to the Select Committee findings, the UK government made some significant changes to the AG’s powers, intending for them to avoid any conflicts of interests and political bias in how the AG carried out his work.
Among the more significant changes were those relating to the transparent exercise of the AG powers, and curbing the AG’s authorities to prosecute individual cases.
The AG would be held accountable by Parliament itself.
The Government proposed “to facilitate further Parliament’s ability to hold the Attorney General to account and provide greater transparency in the exercise of the Attorney’s functions by requiring the Attorney to produce an annual report on his/her functions and to lay it before Parliament.”
The AG’s prosecutorial powers in individual cases are to be curbed.
The Government proposed that “it will not be open to the Attorney [General], as superintending Minister, to direct a prosecuting authority to prosecute a particular case or not to prosecute a particular case.”
The Select Committee had cautioned that the Attorney General’s involvement in prosecutorial decisions “can attract a perception of party political bias.”
So, it is important to note that while Ms Indranee said the UK AG “oversees the prosecution service”, his role there has been severely curbed and prosecution decisions are made by a separate body independent of the AG there.
The Government further proposed:
“The requirement to obtain the consent of the Attorney General to a prosecution in certain cases will, in general, be transferred to specified prosecutors and the Attorney General’s power to halt a trial on indictment by entering a nolle prosequi will be abolished.”
In its place, the Government proposed that the AG “should have the power, in exceptional cases, to give a direction to stop a prosecution where this is necessary to safeguard national security.”
But in order for the AG to be transparent in this, he is required by law “to give a report to Parliament about each occasion when such a power was exercised (without disclosing details which would be damaging to the public interest).”
All these changes were to introduce safeguards to the AG’s exercise of his power, and this is done precisely because the AG also holds political office.
They were, in short, to prevent an abuse of power by the AG, especially in cases which are or can be political.
So, we must be clear that while other countries may have AGs who are politicians, they have introduced safeguards to prevent abuse for partisan political purposes.
Similarly in Australia
It is the same case in Australia, which Ms Indranee also cited.
The AG there is Senator George Brandis, QC, who has served as a Minister in the Howard, Abbott and Turnbull governments. He has held the portfolios of Attorney-General and Vice-President of the Executive Council since September 2013.
He is also a member of the Liberal Party’s Leadership Group since May 2010, and was appointed Leader of the Government in the Senate in September 2015.
The Australian AG, according to the Australian Law Council website, “answers questions in Parliament; he is accountable to parliamentary committees; and he answers letters from other parliamentarians and affected members of the public.”
Do note the importance placed on Parliament holding the AG to account in both Australia and the UK.
Also in Australia, the powers of prosecution are not with the AG. It is, instead, vested in the Director of Public Prosecution who operates independently from the attorney-general and the political process.
An article, which called for reform in the AGC in Malaysia, in the Straits Times in February 2016 sums it up:
The attorney-general [in the UK] is a political appointee, usually a Member of Parliament, appointed by the Prime Minister to be part of government. He acts as the chief legal adviser to the government. But a separate body that is operationally independent from the attorney-general makes prosecution decisions. The attorney-general does not influence prosecution decisions other than in a very small number of offences.
Australia too separates the two roles. Similar to the United Kingdom, the Australian attorney-general is a politician whose role is to advice the government. But prosecution is decided by the Director of Public Prosecution who operates independently from the attorney-general and the political process.
As for the US, the AG is nominated by the President and has to appear before the Senate to be confirmed. Additionally, the attorney general can be impeached and tried by Congress.
In Singapore, the AG is appointed by the President on the advice of the Prime Minister, and assumes both roles as principal legal adviser to the Government, and Public Prosecutor.
The AGC’s latest Annual Report describes its role:
“As the Public Prosecutor, the AG has the power to institute, conduct or discontinue proceedings for any offence. The AG acts independently in this role, and is not subject to the control of the Government.”
Nevertheless, what is the practice in Singapore, when it comes to potential conflict of interests or biasness in political cases which come before the AG?
Will Mr Nair, as Deputy Attorney General, need to recuse himself in such instances?
Mr Shanmugam said there were “clear rules” for lawyers on when they should step aside in such cases.
“I am sure every lawyer in AGC is aware of the laws relating to recusal,” the Law minister said.
Unfortunately, the minister did not seem to have elaborated on what these “laws” are which he referred to.
Superficial comparisons do not tell the whole story
In summary, in the three countries cited by Ms Indranee, they have taken pains to install safeguards in the system to prevent political abuse by the AG, or government influence in prosecutorial decisions of the AG office. In Australia and the UK, they have even gone so far as to remove the AG’s powers of prosecution and given it to separate bodies.
So, it is not a complete comparison if we only scratch the surface superficially, as Ms Indranee has done.
While politicians hold the position of AG in some countries, there are safeguards put in place to prevent the office being used for political reasons.
At the end of the day, trust in our public institutions must be preserved. And any action by the Government which could potentially bring any institution into disrepute should be avoided.
As for the role of the AG or the DAG, perhaps it is time for Singapore to consider its own reforms for the office, to keep the office scrupulously distant from political influence, perceived or otherwise.
The AGC in Singapore publishes an Annual Report each year and you can view them here: https://www.agc.gov.sg/Who_We_Are/Annual_Reports.aspx