Delivered by Mr Bala ReddyPrincipal Senior State CounselAttorney-General’s Chambers, Singapore

THE RULE OF LAW

& THE

INDEPENDENCE OF THE PUBLIC

PROSECUTORProfessor Walter WoonAttorney-General of Singapore

The Rule of Law In a modern democratic state the

Rule of Law entails the following:• Laws are

made through a proper, regulated process by a democratically elected legislature

enforced equally, for the rich or poor, influential or powerless, politically well-connected or otherwise

• Penalties are imposed by a judiciary independent of the executive, or by a tribunal or authority subject to the supervision of an independent judiciary

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The Rule of Law

An independent public prosecutor is an indispensible complement to an

elected legislature and an independent judiciary.

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Prosecutorial Discretion The Public Prosecutor

must decide whether a case should be brought to the courts : -It is not physically possible to deal

with every case in court;

-The public interest does not demand that every infringement of the law has to be dealt with by a judge.

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Prosecutorial Discretion The Public Prosecutor brings a case

to court when:

• He is convinced beyond reasonable doubt of the guilt of the accused.

• There is sufficient and admissible evidence to convince a judge, beyond reasonable doubt, of the accused’s guilt.

• The public interest requires the case to be brought to a judge rather than to compound or administer a warning to the accused.

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Independence of the Prosecutor

The decision whether or not to prosecute is a cornerstone of the criminal justice system.

That decision may be compromised by pressure from external sources

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Sources of External Pressure INTERFERENCE BY THE GOVERNMENT

Prosecutions brought in order to further a political agenda

Safeguards in Singapore The Attorney-General

is not a member of the Cabinet or any political party. is appointed for a fixed period cannot be removed from office except for

misbehaviour or inability to discharge his functions, by a tribunal of the Chief Justice and two Supreme Court judges concurring with the Prime Minister’s recommendation to remove the Attorney-General, and if the President agrees with that recommendation 7

Sources of External Pressure SAFEGUARDS

Safeguards in Singapore The Prime Minister is obliged to consult

the Chief Justice, the incumbent Attorney-General and the Chairman of the Public Service Commission before proposing a candidate

PM Lee Hsien Loong

President S R Nathan

Chief Justice Chan Sek Keong

The President of Singapore may refuse to appoint a candidate proposed by the Prime Minister if he is not convinced that the candidate is suitable.

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Sources of External Pressure SAFEGUARDS

• Deputy Public Prosecutors are accountable to the Public Prosecutor.

• They can only be transferred or dismissed by an independent Legal Service Commission.

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Sources of External Pressure PRESSURE FROM POLITICAL ACTIVISTS

AND THEIR EXTERNAL SUPPORTERS

Common tactic of an opposition politician : cry foul when prosecuted and allege that the charges are politically motivated.

Such politicians often attempt to solicit support from foreign groups to exert pressure on the Public Prosecutor. 10

Sources of External Pressure PRESSURE FROM POLITICAL ACTIVISTS

AND THEIR EXTERNAL SUPPORTERS

Solution - ensure that the decision to prosecute can be justified objectively. This requires :

a robust, non-political system of evaluation of cases by the prosecution, and

self-confidence to face down well-funded and coordinated pressure groups, often with powerful and vocal backers.

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Agitation by foreign activists or the media of a foreign country to stir up indignation when one of that foreign country’s nationals is prosecuted.

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Instances in Singapore of attempts by foreign activists and media to put pressure on local prosecutors and courts in cases involving their nationals.

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Case studiesCase of JB, a young European girl studying in Singapore.

She was arrested with unlawful possession of 687 grams of cannabis.

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Sources of External Pressure PRESSURE FROM EXTERNAL

PARTIES

Case studies

• MF : a case of vandalism by an expatriate teenager residing in Singapore.

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Case studies

• FC : a domestic helper from an Asian country working in Singapore executed for the murder of a child).

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Political pressure from abroad was brought to bear in order to interfere with the prosecution of MF and FC.

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Sources of External Pressure PRESSURE FROM EXTERNAL PARTIES

Where a Public Prosecutor is a member of the government, such pressures may be difficult to resist, especially where the foreign country involved is an ally or a key trading partner .

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Sources of External Pressure

PRESSURES OF POPULISM

Pressure may come from the public for action to be taken in a particular cause célèbre.

If the Public Prosecutor is member of a political party, the temptation to give in to such populist pressures will be ever-present.

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Sources of External Pressure PHYSICAL & OTHER THREATS

The independence of a prosecutor can be severely compromised if he or his family is threatened with harm.

In Singapore, the level of

violence in society is low, firearms are not easily available and there is no societal tolerance for thugs or blackmailers. Such threats to our prosecutors are minimal.

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Sources of External Pressure BRIBERY

Poorly-paid prosecutors with little prospect of career advancement are constantly tempted by rich and powerful defendants.

Combined with threats of violence, the pressure can be overwhelming.

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Sources of External PressureBRIBERY

Eradication of corruption takes years of sustained effort. In relation to prosecutors:

Zero tolerance for taking a bribe in return for leniency in a case, no matter how small the bribe or trivial the indulgence.

Recruit from amongst the best of the cohort of young lawyers.

To be regarded as professionals and pay market rates.

Clear sense of mission and esprit de corps. 22

Sources of External Pressure BRIBERY In Singapore, two

complementary thrusts in the approach to keeping the Legal Service clean :

A prevailing ethos that corruption is both socially and professionally unacceptable.

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Recruit the best available lawyers and pay them market rates.

In mid-2008, S, a poor farmer in an Asian country, agreed to sell one of his kidneys for about US$20,000 to T, a wealthy and influential Singaporean suffering from end-stage kidney failure, and other debilitating diseases.

S made a false statutory declaration that he would receive no financial gain for donating his kidney and that he and T were related by marriage. T made similar false declarations.

CASE STUDY: THE KIDNEY TRADING CASE

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CASE STUDY: THE KIDNEY TRADING CASE

S was charged under Singapore’s Human Organ Transplant Act (HOTA) for agreeing to sell his kidney and under the Oaths and Declarations Act (ODA) for false declarations. He pleaded guilty to both charges. He was fined $1,000.00 for the HOTA offence and sentenced to two weeks’ imprisonment on the ODA charge.

T was also charged with the same HOTA offence for trying to buy a kidney and under the ODA for false declaration.

T pleaded guilty, was fined for both offences and sentenced to one day’s imprisonment on the ODA charge. 25

FINAL WORDS

A system for ensuring the independence of a prosecutor can be beautifully designed and still fail miserably.

There is no foolproof way

to ensure that his judgment is not warped by ambition, avarice or prejudice.

In the final analysis, independence can be guaranteed in only one way: appointing a person who has the integrity and courage to stand up for what is right.

Professor Walter WoonAttorney-General Singapore

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