THE ORIGINS AND PRESENT CONSTITUTIONAL POSITION OF SINGAPORE’S LEGAL SERVICE COMMISSION

• Published date: 01 December 1990
• Date: 01 December 1990
• Citation: (1990) 2 SAcLJ 1
• Author: KIM SEAH TECK KIM

The Legal Service Commission of Singapore owes its existence to the application of two constitutional doctrines. First, the Constitution of the Republic of Singapore1 subscribes to the doctrine of separation of powers between three branches of government: the executive, the legislature and the judiciary. Although the British-style parliamentary system which Singapore follows is characterised by close links between the executive and legislative branches, the independence of trie judicial branch is also fundamental to the system.2

The second constitutional doctrine also follows the British model: the principle that “the public interest demands the maintenance of political impartiality in the Civil Service and confidence in that impartiality (is) an essential part of the structure of government”3 and, consequently, civil servants should enjoy some security of tenure and be allowed a measure of independence from their political masters. That doctrine of British constitutional law is the rationale behind various written constitutional provisions in Singapore.4 Control over the public services is vested not in the Cabinet (the political executive) but in two autonomous bodies, the Public Service Commission and the Legal Service Commission.

The public services of Singapore are enumerated in Article 102 of the Constitution. They are:

1. (a) the Singapore Armed Forces;

2. (b) the Singapore Civil Service;

3. (c) the Singapore Legal Service; and

4. (d) the Singapore Fire Service.

Most public officers are currently under the jurisdiction of the larger of the two existing commissions,5 the Public Service Commission.6 Public officers are defined as the holders of offices of emoluments in the service of the Government7 but

excluding the Prime Minister, Ministers and other political appointees,8 the Chief Justice, the Attorney-General and Judges of the Supreme Court.9

Article 111 of the Constitution vests in the Legal Service Commission the duty to

“appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, dismiss and exercise disciplinary control over officers of the Singapore Legal Service.”

With a strength of only 152 officers in 1987,10 the Legal Service is the smallest of the services mentioned in Article 102. However, the numerical size of the Legal Service belies its importance. Apart from the offices of the Judges of the Supreme Court and the Attorney-General, appointments to which are governed by provisions in the Constitution,11 all the subordinate judiciary and most other legal positions in the public service are occupied by officers in the Legal Service12.

This article traces the origins of the Legal Service Commission from colonial times and reviews its position under the present constitutional provisions of independent Singapore.

The Colonial Structure

Before World War II, in common with the practice in other colonies, recruitment for the senior grades in the public service of the Crown Colony of the Straits Settlements of Singapore, Penang and Malacca was the responsibility of the British Secretary of State for the Colonies.13 Using the machinery of the United Kingdom Civil Service Commission and the Crown Agents for the colonies to assist him in the selection of candidates, he recruited for all the senior services including the Administrative, Professional (including Legal) and Technical Services. He was also the sanctioning authority for the promotion of officers in these senior services. Such officers were freely transferable not only between the three Settlements of Singapore, Penang and Malacca but also between the nine Malay States as members of a “Malayan Civil Service”.14 They were also liable to be transferred to any other Colony, under the terms of their engagement by the Secretary of State, in accordance with British policy of maintaining a unified colonial civil service liable for transfer to any British Colony. Although the Secretary of State remained responsible for appointments and promotions, within Malaya a Joint Malayan Establishment Board was set up to advise him on the promotion and postings of officers in these senior services.

In addition to the officers recruited by the Secretary of State, there were a number of “local officers” recruited locally into the so-called “local services” of the Straits Settlements. The Governor of the Colony was the appointing authority for these officers. Such “local officers” were not members of the Malayan Civil Service but were members of the Straits Settlements Civil Service15 or the Straits Settlements Legal Service.16 Their liability for service was restricted to the Straits Settlements and these “local services” were of a lower status than the senior services recruited by the Secretary of State. A number of junior posts previously staffed by officers of the Malayan Civil Service or Malayan Legal Service were set aside for officers of these two new “local services”. Plans to make more senior appointments available in these “local services” as “local officers” gained experience were interrupted by the advent of the Pacific War and the Japanese Occupation.

Throughout this period, judicial and legal officers were not treated distinctly from

other public officers. In the case of senior officers like Supreme Court Judges and the Attorney-General, they were appointed by the Secretary of State while junior officers were appointed by the Governor.

After the War, changes in the constitutional status of the various British possessions and dependencies in South-East Asia necessitated changes in the structure of the civil service. The Crown Colony of the Straits Settlements was disbanded. The Settlements of Penang and Malacca were combined with the Federated and Unfederated Malay States to form a Malayan Union in 1946 while Singapore was made a separate Crown Colony with its own Governor.17 In 1948, the Malayan Union became the Federation of Malaya.18 The new constitutional arrangements required many government departments, which had been previously operated on a pan-Malayan basis, to be divided into separate units for Singapore and Malaya. The separation of the previously unified civil service of the two territories was recommended.19

The pre-War dichotomy of the civil service structure between the Colonial/Malayan services and the “local services” was also causing resentment in Singapore. Almost all officers in the more prestigious Colonial/Malayan services were expatriate officers whilst almost all locally-domiciled officers were members of the “local services” holding junior positions. The need to upgrade the experience and responsibilities of locally-domiciled officers was acknowledged by the Colonial Office soon after the War:

“If progressive advancement along the road to self-Government of the British Commonwealth of Nations is to be a reality, the public services of the Colonies must be adapted to local conditions and must to the greatest possible extent be staffed by local people.”20

Independence from The Executive: Steps Leading to the Creation of an Autonomous Public Service Commission

The need for a separate civil service for Singapore and the need to man it with locally-domiciled officers led to recommendations that a Public Services Commission should be established.21 The Singapore Legislative Council eventually enacted an Ordinance in December 194922 to create a Public Service Commission. The Ordinance was brought into force on 1st January 1951. It created a Commission

without executive authority over the civil service. Those powers were retained by the Secretary of State for the Colonies and the Governor. The Commission was empowered only to offer non-binding advice to the Governor regarding civil service appointments, recruitment, promotion and related matters.23

In 1955, a new constitution was promulgated for Singapore pursuant to the recommendations of a Constitutional Commission chaired by Sir George Rendel.24 The new constitution gave the colony a measure of limited self-government and a partly-elected legislature and executive. However, the new constitution did not alter the fact that authority over the civil service rested directly with the executive branch of government. All officers remained answerable to either the Governor or the Secretary of State.25

A change from the colonial arrangements to one where the civil service was more insulated from direct executive control only came about as the new partly-elected Government installed under the 1955 constitution swiftly moved to “Malayanise” the civil service pursuant to its election programme. That programme called for “the complete and rapid Malayanisation of the Public Service by domiciled officers” in contrast to the slower pace set by the colonial authorities. Indeed, even at the first sittings of the new Legislative Assembly in April 1955, there were calls for a vigorous implementation of the Malayanisation policy and criticism of the advisory status of the Public Services Commission.27

The new Government responded in August 1955 by appointing an inquiry commission to study the problems related to Malayanisation of the civil service. The interim report of the Malayanisation Commission recommended28 that the appointment, promotion, dismissal and disciplinary control of officers in the civil service be vested in the Public Service Commission. It also recommended that the Commission be constituted by an Order in Council rather than under a local ordinance to emphasize its importance and independent status.29 With respect to the Legal Service, it made several recommendations including the following:

“There should be a scheme of transferring officers frequently from the Judicial side to the Legal side and vice versa so as to give officers an all round training,

and also to overcome the present objection of potential recruits to having experience limited to one side of the Service only which leads to a...