By Michael Hor and Jaryl Lim
From heading a law office, to being on the Bench and then assuming office as Attorney-General of Singapore on June 25, Mr V. K. Rajah is expected to alter the legal landscape.
A Legal Grand Slam
There can be no doubt that Singapore’s legal world is in for an exciting ride with the accession of Mr Vijaya Kumar Rajah SC (universally abbreviated to V K Rajah) to the crucially important position of Attorney-General. Like retired Chief Justice Chan Sek Keong and current Chief Justice Sundaresh Menon, Mr Rajah completes the grand slam, from a Managing Partner and Senior Counsel in a mega-firm, to the heights of judicial office as a Judge of Appeal, and now the Attorney-General of Singapore.
Wherever Mr Rajah has trodden, he has made tidal waves in the legal landscape. Under the leadership of Mr Rajah and his successors, Rajah and Tan (founded by his redoubtable father T T Rajah which started out with only 6 lawyers) has flourished and is now one of the largest firms in the country with over 300 lawyers under its wing. In his judicial capacity, he co-chaired the Committee for Family Justice and the Singapore International Commercial Court Committee with Senior Minister of State for Law Ms Indranee Rajah SC, making key recommendations to benefit the family justice system and the legal services sector respectively.
His tour of duty was also marked by a series of judgements – aptly described by the Minister for Law as “ground-breaking” – which have collectively changed the tone of criminal justice in Singapore. While the Attorney-General is not a judge, Mr Rajah’s legacy of inspiring judgements reveals the kind of fundamental criminal justice values he holds and is likely to continue to hold as the Attorney-General. An entire volume can be written about this, but two examples will suffice to give a flavour of the person.
The Presumption of Innocence
The idea that everyone is presumed innocent until proven guilty in a court of law is seldom thought to require further explanation, yet its implications in some contexts is not so straightforward. For instance, if an accused is acquitted on the grounds that there was insufficient evidence to secure a conviction, is he to be presumed innocent? Or can he still be considered, in some sense, factually guilty (but not legally guilty) of the crime?
In 2008, these questions were raised in response to the Attorney-General’s Chambers’ (AGC) comments on an on-going appeal then against the acquittal of a school teacher charged with outrage of modesty. At that time, an AGC spokesperson wrote in The Straits Times Forum Page that an acquittal determined only legal guilt, and so an accused could well have been factually, or actually, guilty – only that there was insufficient evidence to secure a conviction. That unfortunately gave the impression to some people that the AGC, and therefore the Government, might treat an acquitted person to be as good as guilty for purposes other than obtaining a conviction in court.
This, Justice Rajah could not leave unclarified. In a rare but timely judicial entry into a public debate, he drafted a paragraph to his judgement in the case concerned to put to rest any such misapprehension:
It is not helpful, therefore, for suggestions to be subsequently raised about the accused’s “factual guilt” once he has been acquitted. To do so would be to undermine the court’s finding of not guilty and would also stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard-pressed to ever shed … [T]he decision of guilt or innocence is constitutionally for the court and the court alone to make …[T]here is no room for second guessing or nice distinctions; there is only one meaning [to an acquittal] and that is that it has not been established in the eyes of the law that the accused has committed the offence with which he has been charged.
In his characteristically eloquent style, Justice Rajah put the judicial foot down. As far as the Government and officialdom is concerned, an acquitted person is always, for all purposes, to be treated as innocent of the crime charged. It is reassuring that the Attorney-General is one with such a clear and principled stand.
The Prosecution’s Duty and Obligations
A commitment to the presumption of innocence is, on a broader canvas, a commitment to the fairness of criminal proceedings. Given the inequality of resources between a government-sponsored prosecution and a privately-funded defence, it is trite that the prosecution usually bears a heavier obligation than a defence counsel, such as having to prove its case beyond reasonable doubt. In 2011, another sensational case – that of the Kadar brothers – came before then Judge of Appeal V K Rajah (as he had since become), and he took the opportunity to clarify some of the obligations that the prosecution owes to the court.
Firstly, Justice Rajah emphasised that the overarching duty of the prosecution is to assist the court to determine the truth, such that only the guilty are convicted. In his judgement, he emphasised that the prosecution must always discharge its duties conscientiously and ethically in the administration of justice. It is not, as often believed to be, to zealously secure a conviction at all costs.
In line with this quest to determine the truth, Justice Rajah and the Court of Appeal further declared that it was time to recognise a duty on the part of the prosecution to disclose relevant material, even those which it did not intend to use at trial, to the accused. Prior to this appeal, the lack of a comprehensive obligation on the part of the prosecution to disclose, before the trial, material relevant to guilt or innocence had been a bugbear of the criminal bar for a long time. Although there were local judicial precedents which seemed to support the position that no such duty existed, Justice of Appeal Rajah and his brethren surveyed the position of several respected jurisdictions around the world, only to discover that they had all recognised a similar duty on the part of the prosecution, even if the material disclosed is unhelpful or even detrimental to the prosecution’s case.
The Court of Appeal, in a judgement delivered by Justice of Appeal Rajah, cast aside past practice in favour of the “elementary right of every defendant to a fair trial” and the “rules of natural justice” which demanded that the prosecution must have a duty to disclose anything which may be of use to the accused. It is again heartening to note that the Attorney-General always puts the dictates of justice and fairness above the inclinations of bureaucracy and precedent.
|While the Attorney-General is not a judge, Mr Rajah’s legacy of inspiring judgements reveals the kind of fundamental criminal justice values he holds and is likely to continue to hold as the Attorney-General.|
Public Confidence in the Principled Administration of Justice
In a separate judgement, then Justice Rajah once said:
Public confidence in the principled administration of justice must inevitably be the paramount consideration.
This judicial pronouncement nicely sums up the criminal justice philosophy of the Attorney-General. There are two essential elements in it which must be carefully nurtured. The first is public confidence. A criminal justice system which does not command the confidence and respect of the public is one that has failed in its principal mission – the preservation of the safety and security of everyone within the jurisdiction.
But, there is another fundamental element: the administration of justice must also be principled. The criminal justice system must not only be effective and efficient; it must also be fair and seen to be so. Most of the time there is no conflict between these elements, but occasionally (though rarely, we hope), the two may seem to clash. When such a scenario arises, Mr Rajah (then Justice Rajah) once aptly noted, “[T]he ends cannot be inevitably and invariably held to justify the means. To do so can only result in indelible scars to the administration and perception of justice.” We have every confidence that he will be well placed to make the difficult calls.
We await with heightened anticipation to see what Mr Rajah will do as an Attorney-General. His moral fibre, coupled with his strong desire for fairness and justice, indeed augurs well for the efficacy and credibility of Singapore’s criminal justice system.
Professor Michael Hor formerly taught at the National University of Singapore Faculty of Law, where he was also an advisor to the Innocence Project (Singapore) at the Faculty. He was recently appointed the Dean of the Faculty of Law at The University of Hong Kong. Jaryl Lim is a Year 2 law student at the National University of Singapore, and is currently the Head of the Innocence Project (Singapore).
This article was first published in The Straits Times Opinion Page on 1 August 2014.