Second Reading Speech by Senior Minister of State for Law, Mr Edwin Tong, on The Supreme Court of Judicature (Amendment) Bill

06 NOV 2019

6 Nov 2019 Posted in Parliamentary speeches and responses

  1. Mr Speaker, on behalf of the Minister for Law, I beg to move, “That the Bill be now read a second time”.

  2. This Bill is linked to the next two Bills on our Order Paper, the Constitution of the Republic of Singapore (Amendment) Bill (“Constitution Amendment Bill”), and the Judges’ Remuneration (Amendment) Bill.

  3. Sir, may I therefore propose, with your permission, that the substantive debate on all three Bills takes place now. Members would be welcome to raise questions or express their views on the three Bills during the debate. We will still have the formal second readings of the Constitution Amendment Bill, and the Judges’ Remuneration (Amendment) Bill to ensure that procedural requirements are dealt with.

I. Introduction

  1. Mr Speaker, our judicial system is well-known not only for its commitment to upholding the rule of law, but also for its efficiency, competence, and integrity.
  1. In a survey conducted by my Ministry in late 2015 on how Singaporeans view the Courts, 92 per cent said they had trust and confidence in our legal system. In the Worldwide Governance Indicators by World Bank in 2018, Singapore ranked in the 97th percentile for Rule of Law. In the Global Competitiveness Index published by the World Economic Forum in 2019, Singapore maintained the top position for the efficiency of its legal framework in dispute resolution. In fact, Singapore has been ranked first (out of more than 140 countries) in this component of the index, every year for the past 10 years. Singapore also scored highly for judicial effectiveness in the Heritage Foundation Index of Economic Freedom in 2019.
  1. The Ministry of Law has been working with the courts to ensure that court proceedings are efficient, and that the quality of justice remains high. To this end, for instance –

(a) We established the new Family Justice Courts in 2014, with the aim of taking a more multi-disciplinary and collaborative approach to family disputes.

(b) We established the Singapore International Commercial Court (SICC) in 2015, as part of our drive to bolster our status as a hub for resolving commercial disputes.

  1. The Office of Transformation and Innovation was also set up under the auspices of the Supreme Court in 2018. As part of the overarching Courts of the Future blueprint, it has commenced work on various projects and technological enhancements, with a view to enhancing access to justice, improving processes, and also embracing innovative ideas for change. One upcoming initiative is the use of video-conferencing for a variety of non-trial hearings.
  1. The current Bills continue in this spirit by facilitating a better use of judicial resources, and also introducing procedural amendments to enhance the flexibility and also the efficiency of court processes. This will also translate to real and practical benefits for court users both in terms of time and also costs.

II. Rationale for the Bills

  1. A key change is the restructuring of the Supreme Court to establish a new Appellate Division of the High Court.
  1. The Court of Appeal is the highest court of the land. It hears both civil and criminal matters arising from decisions of the lower courts and tribunals. The decisions of the Court of Appeal form a body of authoritative law that has shaped our local jurisprudence.
  1. The Court of Appeal has experienced a growing caseload for both criminal and civil matters. In 2013, there were 314 civil and criminal matters filed to the Court of Appeal. In 2018, the number of matters filed to the Court of Appeal increased to 490. Overall, the Court of Appeal heard 56% more matters in 2018 as compared to 2013.
  1. In addition to the growing caseload, the Court of Appeal has also observed that the cases it is hearing are becoming increasingly complex. The Court of Appeal generally sits with no more than three judges to hear each case. In some of the complex appeals, the Chief Justice may convene an enlarged panel of appeal judges to hear the appeal. This is to allow difficult or novel issues to be considered with the benefit of the collective wisdom and insight of a larger pool of judges. There has been a growing number of written decisions issued by a 5-judge bench of the Court of Appeal, which is itself indicative of the jurisprudential significance and difficulty of such cases. In 2015, by contrast, only 4.3% of all reported decisions were issued by a 5-judge bench. By 2018, this number had increased to about 11.5%.
  1. The increased caseload and complexity of matters have stretched the resources of the Court of Appeal.
  1. Thus far, the Supreme Court has taken interim measures to manage the increasing caseload and complexity in the Court of Appeal’s docket. These measures include having more High Court judges sit on Court of Appeal hearings, and increasing the sitting days of the Court of Appeal. However, we feel that these are just stopgap measures. A more long lasting sustainable change would be useful.
  1. This Bill, together with the Constitution Amendment Bill and the Judges’ Remuneration (Amendment) Bill, will establish an Appellate Division of the High Court. This will allow civil appeals arising from decisions of the existing High Court to be distributed between two appellate courts, namely, the Appellate Division of the High Court, and the existing Court of Appeal. These targeted structural reforms to the Supreme Court create a more permanent solution to the issues facing our Court of Appeal. The reforms will help address the growing appellate caseload, and allow the Court of Appeal to focus its resources as appropriate.
  1. Now let me highlight the key features of this Bill for members.

III. Main features of the Bill

A. Restructuring of the Supreme Court

  1. Under the structural reforms introduced by the Bills, the Supreme Court will continue to comprise the Court of Appeal, which will remain as the apex court in Singapore, and the High Court.
  1. The High Court will in turn be restructured to consist of the General Division of the High Court, as well as the Appellate Division of the High Court.
  1. I shall first touch on the General Division, before elaborating on the interaction between the Appellate Division and the existing Court of Appeal.

B. General Division of the High Court

  1. In essence, the General Division will be the present-day High Court. As is the case today, it will include the SICC and the Family Division of the High Court. The General Division will have all the jurisdiction and powers of the existing High Court, and will hear all cases that fall within the original and appellate jurisdiction of the existing High Court.
  1. Any originating case, appeal, stated case, or other recourse which presently lies to the existing High Court will continue to lie to the General Division. There will generally be no change to the current position on whether there is further recourse to an appellate court. Hence, if certain decisions of the existing High Court are currently final, then in most cases, those decisions of the General Division will be final. Similarly, if decisions of the existing High Court are appealable with leave or appealable as of right, then those decisions of the General Division will likewise be appealable with leave, or appealable as of right. The overall intention is to preserve the status quo with respect to the finality of decisions of the General Division.

C. Allocation of appeals between the Appellate Division and the Court of Appeal

  1. Appeals arising from a decision of the General Division will be allocated between the Appellate Division and the existing Court of Appeal.
  1. In general, the Court of Appeal will hear all criminal matters. It will also hear appeals or processes that are to be heard by the Court of Appeal under written law, and prescribed categories of civil appeals.
  1. These prescribed categories will be set out in a new Sixth Schedule to the amended Supreme Court of Judicature Act. Where the appeal falls within the categories of appeals prescribed in the new Sixth Schedule, then a party should file the appeal or leave application to the Court of Appeal. Where the category of appeal is not prescribed in the Sixth Schedule, a party should file the appeal or leave application to the Appellate Division, or otherwise in accordance with written law.
  1. The appeals that have been prescribed are generally those that:

(a) are likely to have substantial consequences for individuals or society;

(b) may involve questions of law of public interest which would benefit from guidance from the Court of Appeal;

(c) concern the general administration of justice;

(d) may involve novel questions of law, or new areas of law which would benefit from guidance from the Court of Appeal;

(e) may involve issues that are likely to be important and require earlier clarification from the Court of Appeal; or

(f) relate to strategic areas that would benefit from the stature of the apex court, such as those that bolster Singapore’s status as a dispute resolution or debt restructuring hub.

  1. Based on these principles, appeals arising from cases relating to constitutional or administrative law, appeals arising from decisions of the Singapore International Commercial Court, and appeals arising from cases relating to the law of arbitration will ordinarily be allocated to the Court of Appeal. This list is not exhaustive.
  1. Where a single appeal contains multiple issues, with some issues falling within the prescribed categories, and other issues falling outside of the prescribed categories, the appeal should be filed to the Court of Appeal. For example, if an appeal arises from a case relating to constitutional law, but also raises issues relating to tort law, the appeal should be filed to the Court of Appeal.
  1. All criminal appeals currently heard by the Court of Appeal, will continue to be heard by the Court of Appeal.
  1. The Appellate Division will hear all other civil appeals that are not allocated to the Court of Appeal.
  1. The prescribed categories may be amended by the Minister, after consultation with the Chief Justice, by order published in the Gazette. This will allow for the allocation of appeals between the Appellate Division and the Court of Appeal to be refined, and also evolve, taking into account operational experience as well as evolving policy considerations. And, as I explained earlier, on novel areas, which are currently prescribed, which become settled by the passage of time. In these cases, there will be flexibility in moving types of cases into or out of the Sixth Schedule.
  1. The Appellate Division will ordinarily sit as a panel of three Judges. This reflects its stature and significance as an appellate court.

D. Transfer powers

  1. To provide for flexibility, the Court of Appeal will have the powers to transfer to itself any appeal that has been made to the Appellate Division, and vice versa. This is notwithstanding the ordinary allocation of appeals.
  1. To give an example, the Court of Appeal may transfer to itself, an appeal which is ordinarily allocated to the Appellate Division, if the appeal concerns a dispute involving complex and novel points of law, and the Court of Appeal is satisfied that it will be more appropriate for the matter to be resolved by an earlier decision of the apex court. The Court of Appeal may also consider factors such as whether there are conflicting judicial decisions on the point of law in question, which merit clarification.
  1. Conversely, the Court of Appeal may also decide to transfer to the Appellate Division, an appeal which is ordinarily allocated to the Court of Appeal. For instance, an appeal arising from a case relating to constitutional law is ordinarily allocated to the Court of Appeal. However, if the General Division has already rendered its decision on the case, and the only issue on appeal is that of costs, then the Court of Appeal may decide to transfer the appeal to the Appellate Division. As another example, an appeal arising from a case relating to contempt of court is ordinarily allocated to the Court of Appeal. However, if all the issues on appeal relate to uncontroversial points of law, then the Court of Appeal may transfer the appeal to the Appellate Division. Parties may also apply to the Court of Appeal for the appeal to be transferred to the Appellate Division, if the appeal has not been filed to the correct appellate court. To be clear, after the Appellate Division has issued its decision on an appeal that has been transferred for its determination, it remains possible for a party to bring a further appeal to the Court of Appeal. This will however be subject to the fulfilment of stringent criteria that I will come to in a while.
  1. The transfer powers help to ensure that the Court of Appeal’s resources are focused on the matters that necessitate a decision from the apex court. The matters that the Court of Appeal will have regard to, when deciding whether to exercise its powers of transfer, will be set out in the Rules of Court.

E. Further appeals from the Appellate Division to the Court of Appeal

  1. Where an appeal has been heard and decided by the Appellate Division, any further appeal against the decision of the Appellate Division may only be brought with the leave of the Court of Appeal. This is consistent with the practice with other jurisdictions such as the United States, United Kingdom, and Australia, where there is no automatic right of appeal to the apex court.
  1. All such applications for leave will be assessed based on criteria that is more stringent than the usual common law principles that govern applications for leave to appeal against a decision of the General Division. This is to reflect the fact that the matter would have already been considered once on appeal by the Appellate Division.
  1. Therefore, the Court of Appeal will consider granting leave only if the appeal raises a point of law of public importance. The Court of Appeal may also take into consideration other factors, such as whether a decision of the Court of Appeal, as the apex court, is required to resolve the point of law, and whether the interests of the administration of justice require the Court of Appeal’s consideration of the point of law.
  1. To be clear the Appellate Division should not be seen as a further tier of appeal that must be crossed before a matter can reach the Court of Appeal. Where an appeal lies from a decision of the General Division, then the appeal will lie either to the Appellate Division or the Court of Appeal. It will not be commonplace for appeals to be brought to the Appellate Division and further brought to the Court of Appeal.

F. Other initiatives to enhance the court process

  1. The Bills also make a number of other amendments to help ensure the timely disposal of appeals, ensure better use of limited judicial resources, and bring the overall cost of litigation down. I will touch on four significant initiatives.

Composition of judges who can hear certain matters

  1. First, under existing court processes, the Court of Appeal will ordinarily sit in a panel of 3 Judges to hear an appeal or application. However, certain applications can be dealt with by one Judge or, in some cases, two Judges. Certain appeals can also be heard by a panel of 2 Judges. We will apply a similar approach to the Appellate Division. For the Appellate Division, parties will also have an option of consenting to a 2-Judge coram to hear the appeal, subject to the approval of the Appellate Division.

Expansion of categories of cases where paper hearings are allowed

  1. Second, the Bills expand the situations under which a civil appeal or application can be decided without hearing oral arguments. This is known as a paper hearing.
  1. Presently, a civil appeal or application may be decided on paper in a limited number of situations. These situations are:

(a) An appeal against the decision of the SICC where all parties to the appeal consent; and

(b) Any application to the Court of Appeal.

  1. The Bills expand the categories of cases that can be decided on paper in three ways:

(a) First, the Appellate Division and the Court of Appeal will have the powers to decide specified categories of appeals without hearing oral arguments, if all parties to the appeal consent. These include appeals against interlocutory judgments, and appeals against judgments relating to the assessment of damages.

(b) Second, the Appellate Division will be able to decide any appeal without hearing oral arguments if all parties to the appeal consent to a 2-Judge coram and to a paper hearing, and the Appellate Division considers it appropriate.

(c) Third, the Appellate Division will also be able to decide any application brought before it without hearing oral arguments. This will not require the consent of parties and is in line with the current practice in the Court of Appeal.

  1. The possibility of paper hearings provides parties with an option, subject to the court’s approval, of having their matters resolved faster and at a lower cost.

Leave applications

  1. Third, this Bill simplifies the process for leave applications. Currently, when leave is required to appeal against a decision, the leave application is usually heard by the court that has made the decision being appealed against. If that court declines to grant leave, a further application for leave can be made to the appellate court. We will simplify this process such where leave is required to appeal against a decision of the General Division, the relevant appellate court will hear the application for leave.. The decision of the appellate court on the leave application will be final.

Interlocutory matters

  1. Fourth, the Bill makes five interlocutory orders at paragraphs 1(c) to (g) of the existing Fourth Schedule to the SCJA appealable with the leave of the appellate court. These five orders are currently non-appealable.This amendment seeks to refine the balance between procedural efficiency, and fairness to the parties.

IV. Conclusion

  1. In summary, these Bills

(a) Establish the new Appellate Division of the High Court and set out its jurisdiction and powers; and

(b) Introduce procedural amendments to enhance the flexibility and efficiency of court processes.

  1. Together, the amendments will further enhance a judicial system that is robust, flexible and allows for the effective administration of justice.
  1. Mr. Speaker, I beg to move.

Last updated on 06 Nov 2019