Singapore’s A-G age issue: If you are good enough, are you young enough?

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Only one of Singapore’s attorneys-general was older than Lucien Wong when he recently took office. Rightly or wrongly, his age has become a talking point, so should experience within the judicial system be celebrated rather than criticised?

By Victoria Wah

Attorney-General Vijaya Kumar Rajah celebrated his 60th birthday on the same day that Lucien Wong, a top corporate lawyer, succeeded him to become Singapore’s tenth attorney-general earlier this year.

The appointment of the 63-year-old Wong has not been without controversy due to his overly ripe age. Worker Party’s chairman and lawyer, Sylvia Lim, citing Article 35(4) of the Constitution, questioned the legality of his appointment. She says that the law, “does not seem to contemplate the appointment of a new attorney- general who is more than 60 years old to assume the post.”

K. Shanmugam, Minister for Home Affairs and Minister for Law, answered, “All these appointments were in accordance with the Constitution, and the interpretation I put forward… is something we have confirmed with the Attorney-General’s Chambers.”

Age is just another number in the US

Assuming Lim’s comments are related solely to a person’s age of appointment, they are at odds with what is happening around the world, where the age of appointment is hardly ever seen as a barrier to a person’s ability to stand as the attorney-general. Indeed, well-ripened age is the new black for attorneys-general in the US.

In the US, attorneys-general over the age of 60 have often been appointed. For instance, Michael Mukasey, the 81st attorney-general of the US, started his term in 2007 at the very late age of 66 years old and served until he was 68. Another recent example would be Jefferson Sessions, a former attorney-general of Alabama. If he is successfully nominated by Trump, he will take office at a grand age of 70 this year.

On Trump’s nomination of Sessions, a Trump transition statement said, “The president-elect has been unbelievably impressed with Senator Sessions and his phenomenal record as Alabama’s attorney general and US attorney.” Sessions’ nomination comes as a result of his track record rather than his age.

Furthermore, the majority of states in the US have no term limits, and the attorney-general’s tenure is dependent on the President’s discretion. In this case, attorney-generals may be appointed for life. This allows them to continue their jobs well past the age of 60. It is clear on the US’s part that age is disregarded when assessing a person’s ability to stand or serve as the attorney-general.

But the same is not the case for the UK and her territories

In the United Kingdom (UK) and Hong Kong, most attorneys-general have been appointed before turning 60. Looking at those who were appointed in the 21st century, starting with and ending with Jeremy Wright’s term, the average age of UK attorneys-general who have taken office is 52. The average age of retirement from office is 57.

In Hong Kong, the average ages of appointment and retirement are significantly lower than those of the UK. Senior Counsel Wong Yan-Lung and present Attorney-General Rimsky Yuen Kwok-Keung took office at the mature ages of 42 and 48 respectively. It is very unlikely that Yuen will continue to serve past his 60th birthday but as for Wong, he officially ended his term in 2012 at the age of 48.

The attorney-general’s office tenures in Hong Kong and the UK are also limited to the duration of the government’s time in office. The limited office terms mean that attorneys-general do not serve for life as they do in the US and as a result, they rarely serve past their 60th birthday.

Singapore’s attorneys-general have usually been similar ages – until now

To date, Singapore’s appointments of attorneys-general have been similar in tenure limitations to the UK and Hong Kong. Although there have been appointments of attorneys-general over 60 like the appointment of 64-year-old Chao Hick Tin and 63-year-old Lucien Wong, their tenure lengths were for limited periods.

Imposing a limited tenure period is advantageous as incoming fresh-faced attorney-generals with their own unique take on the justice system continue to shape the legal landscape of Singapore. This finite tenure period also prevents power from being vested in one person for life and prevents a host of accountability issues from arising. Other than having a limited tenure length, the age of appointment should generally not bar one from acting as attorney-general.

Impingement on judicial independence and conflicts of interest remain issues

Imposing a short tenure does not mean that the position is free from issues. Lim’s concern rings deeper, in the sense that short-term appointments with opportunities for tenure extensions can influence attorneys-general to act in a discretionary manner.

Once their tenure ends, there is an opportunity for them to be reappointed by the President and Prime Minister. This may cause short-term attorneys-general to be cautious about making decisions that contradict the government. They may instead make safe decisions in order not to jeopardise their chances of reappointment.

Furthermore, the two roles that the attorney-general holds may cause a conflict of interest. The attorney-general is the government’s legal advisor. Yet, at the same time, he is the public prosecutor, an independent role that is not subject to the government’s control. There is a risk that judicial independence may be undermined by the role of being part of the government’s team.

So far, so good, in terms of fairness

So far, the role of attorney-general has not brought about any unfair play, going by the contributions of former office-holders. This can be seen in the outstanding contributions made by Rajah, the previous attorney-general.

During his time in office, Rajah was particularly known for his strong sense of fair play in the criminal justice system. Thio Shen Yi, the outgoing president of the Law Society of Singapore said, “V K Rajah brought a tremendous attitude of compassion and fairness to the office. He was very clearly trying to do the right thing, to honour everything we consider dear to the profession.” Rajah’s time as the attorney-general shows that if judicial independence was not being undermined then, it is unlikely to start being undermined now.

Furthermore, it is not just Singapore’s attorney-general who holds these dual judicial and executive roles. For instance, the attorney-general of England and Wales is part of the government yet performs independent judicial functions. Hong Kong and the US also have attorneys-general who perform judicial roles yet are part of the Executive. This convention of having two roles is common and the risks associated with this role are overstated.

Creation of a deputy attorney-general cannot eliminate the risk of conflict

Nevertheless, the post of a deputy attorney-general was recently created to address this risk of a conflict of interest. The deputy executes the role of public prosecutor, taking some of the burden off the attorney-general.

Walter Woon, Singapore’s fifth attorney-general says, “Given that the two roles sometimes lead to confusion regarding the attorney-general’s independence, it makes sense to separate the two functions.” Assignment of the public prosecuting role to the deputy would allow the attorney-general to focus more on his duty towards the executive. This would separate the attorney-general’s judicial independent function from his duty towards the executive, preventing a conflict of interest from arising.

Even if this risk of wearing two hats is addressed, it is difficult to reinvent the status and role of the attorney-general in eliminating this risk. The Attorney-General’s Chambers (AGC) says that the deputy will be responsible to the attorney-general and will carry out duties assigned by the attorney-general. Hence, judicial independence may still be open to influence by the executive where the deputy is under the attorney-general’s wing.

The creation of a deputy will not resolve the paradoxical nature of the attorney-general’s two roles. Short-term appointments of attorneys-general older than 60 may jeopardise judicial independence and cause conflicts of interest due to reappointment incentives. Other than these risks, short tenures have their benefits. UK and British territories, including Singapore, have followed this tenure length example. Age is not an issue and Singapore can look to the US as an example where age is no barrier to one’s ability to serve. Lucien Wong is not too old for Singapore although he arrives a decade too late.