Speech by Minister for Foreign Affairs and Law, K Shanmugam, at the Association of Muslim Lawyers’ Inaugural Lecture

6 Dec 2013 Posted in Speeches

Mohd Marican, President for the Association of Muslim Lawyers,

Honourable Judges,

Judicial Commissioners,

District Court Judges,

Fellow Lawyers,

Friends.

1. Thank you for inviting me here to speak at this inaugural Lecture, and I look forward to an evening of open, robust, frank discussion.

2. Let me give an overview of the legal sector before going on to the main point I want to make tonight. And maybe I will also pick up on one or two of the points that Mr Marican made.

Legal Sector

3. The growth in the business and investment landscape in Asia has brought with it opportunities for our legal services sector to expand and thrive. The Singapore legal sector has seen robust growth over the last five years.
   • The nominal value of the legal services sector has grown by about 25% from just under S$1.5 billion in 2008 to an estimated S$1.85 billion last year.
   • We are also exporting more legal services. From 2008 to 2011, the value of legal services exported from Singapore increased by 50%, from S$363 million to S$551 million in 2011.

4. The sector’s growth has been catalysed by various measures that have been progressively introduced to bring more international work into Singapore.

• For instance, QFLP licences have given tremendous opportunities to local lawyers to do cross border work and develop deep specialisation. The realisation Mr Marican mentioned, it’s a matter of public record, that I have said, that when it was first suggested, I had grave doubts on the efficacy of opening up, particularly QFLPs. But when I became Minister, I had the government policy to implement and implemented it. With hindsight, on my perspective, I think it was the right move. At that time, if you look at the committee which recommended it, it comprised – all the people who supported it came from all the major firms, Drew & Napier was supportive, so was I believe, Rodyk, so was I think, Rajah and Tann and Wong Partnership. You had the senior partners, the more significant lawyers from these firms represented in the committee which signed off on it. I think the one notable exception was Allen & Gledhill, which didn’t sign off on it. And, I mean, there were competing views as to whether it made sense or didn’t made sense. And one argument would be why is there a need to let QFLPs into Singapore to do local work? How does that increase international work in Singapore? A perfectly valid argument, which is the argument that I thought made sense, but obviously I was overruled on that.
• But apart from QFLPs we are also doing extremely well in international arbitration.
• Aside from the success of the Singapore International Arbitration Centre, our Singapore law firms have also gained global recognition for their growing expertise in international arbitration. Rajah & Tann, Drew & Napier, Allen & Gledhill, Stamford Law, Rodyk and other firms – they are all making the news in the region.

5. And we continue to consider new ways to grow the legal sector in Singapore.

• A few days ago, I announced our plans to set up the Singapore International Commercial Court (SICC). The SICC will be positioned to attract litigation cases that would otherwise not have come into Singapore.
• And to cement our position as Asia’s premier legal centre, and I say that advisedly, that we are Asia’s premier legal centre now, but to cement that position, we will strongly develop our capabilities in international commercial mediation.
• We have accepted recommendations proposed by the working group on international commercial mediation. And we will work with stakeholders on implementation.

Further legal infrastructure initiatives

6. And as we grow the economic space for our lawyers and law firms, we will focus on other aspects of the law which directly impact on our citizens, and many small firms.

The Third Law School

7. The 4th Committee highlighted the need to sustain the supply of lawyers specialising in criminal and family law work. These are fundamental legal services that our community requires. The 4th Committee recommended the setting up a Third Law School. It will be sited at UniSIM. And it will prioritise admissions for mature students. It will concentrate on students gaining the necessary practical skills. And it will have a multi-disciplinary focus, with associated social work aspects as part of its syllabus.

8. And I personally supported it because I think it is the prime example of a society with second chances. You can’t get into NUS, SMU, you’ve gone on to do something else – you’ve become a police officer, a teacher, a social worker, you’ve done something else and you now want to become a lawyer –this third law school will look for people like that. So it will focus primarily on mature students, though fresh graduates – some will be looked at as well.

9. The Steering Committee will be chaired by Senior Minister of State Indranee Rajah, who will be working out the implementation for the Third Law School.

Family Law

10. There will be substantial changes in the way Family Law is dealt with in Courts. We really think that we need to make a move on this, and the focus should be on children, the focus should really not been on what happened in the past and long affidavits. We’ll be looking at cutting it down, getting specialists in and easing the pain considerably. A very different, family-focused approach to the practice of family law.

Civil Legal Aid

11. Earlier this year, we also extended civil legal aid to more people. That will enable greater access to justice for those who need but cannot afford basic legal services.

12. Amendments to the Legal Aid and Advice Act took effect from 1 July 2013 and it now covers about 25% of Singaporean households. And really the principle that I have taken is – you want to cover the 25%, you really don’t want to go into the territory of small law firms because where people can afford the small law firms, they should go there. But people who can’t afford it, the state should help.

13. But quite importantly, we have also given greater discretion to the Legal Aid Bureau to grant additional reliefs for applicants in certain types of matrimonial cases. So we will make exceptions there and allow greater ease of access for matrimonial cases.

14. These changes have been discussed, maybe they haven’t been put together in a single speech. But really, with regard to Mr Marican’s point as to contingency fees, I am conservative when it comes to legal practice and for too long when I have seen what has happened elsewhere on contingency fees, particularly the US – champerty, contingency fees – I have not been very enthused by it. I can see the access to justice points but I can say that this is something we have considered and are considering very carefully because for every argument that is in favour of it, there are many arguments that also, well, show up the problematic nature of going down that road. But I’m not saying no, but I’m saying we’re giving it every possible thought to see whether it can increase access. And we have to be satisfied that it’s in the best interest. If we are not satisfied, then we can’t implement it.

15. Primarily today, the main focus of this speech is going to be the next topic which is criminal legal aid.

A New Approach to Criminal Legal Aid

16. Legal Aid in Criminal cases:
    • At present, the legal assistance for all capital cases is funded by the State (through ‘LASCO’).
    • The Government also gives indirect criminal legal aid – it provides annual funding to the Law Society’s Pro Bono Services Office.
    • And of course lawyers, do a bulk of the heavy lifting, volunteering their services through ‘CLAS’, and various Community Legal Clinics.

17. Historically, criminal legal aid was provided for in the original Legal Aid Act and Advice Ordinance in 1956. But those provisions were never brought into effect.

18. The Government’s position has been that providing criminal legal aid would put the State in the position of using public funds to both prosecute and defend the same accused persons, after significant resources had been allocated to the careful and meticulous investigation, assessment and conduct of prosecutions. And provisions from the Legal Aid and Advice Ordinance relating to criminal legal aid were in fact deleted in 1995.

19. Nevertheless from 2007, the Government started funding criminal legal aid indirectly by providing support to the Law Society for operating its pro bono criminal legal aid efforts, which I said earlier. And of course, Community Legal Clinics as well as CLAS have played key roles in assisting accused persons.

20. My Ministry has been reviewing this position for quite some time now. We have decided to give direct assistance and support in criminal cases to Defendants – through Criminal Legal Aid. It will require statutory intervention; we’ll put through the legislation.

21. Details are now being worked out. Current estimates - there are about 12,000 accused persons annually, of whom at least half, we think, or about 6,000, could benefit from some form of legal representation.

22. CLAS sees about 1,000 applications per year – and 200 to 300 applicants qualify for aid. The types of offences for which they may be granted assistance under CLAS are also limited. Our new approach will help address many of these needs.

Four Tiers of Assistance for Expanded Legal Aid

23. We anticipate – as I said details are being worked out – four tiers of legal assistance in this expanded legal aid.
    1. The first tier – to provide all accused persons with awareness of channels for legal advice and representation, as well as relevant social service agency assistance.
    2. The second tier, a smaller number, will be given basic legal advice - for the accused persons who are facing charges which may attract a custodial sentence.
    3. The Third Tier support services would include help not involving Court attendance by a lawyer, which could include:
       1. Writing letters of representation to the Attorney-General’s Chambers;
       2. Preparing mitigation pleas; or
       3. Drafting the Defence Case.
       We think that maybe up to 3,000 cases could be eligible for this limited assistance in the third tier.
    4. The Fourth Tier, of these 3,000 accused persons, the fourth tier of assistance – which is full representation in court – could perhaps help about 1,000 persons.

24. These are numbers, projections, based on our discussion with the SubCourts on what is happening at present. Obviously we can’t be precise about them.

Structure for Expanded Criminal Legal Aid

25. How will we structure this expanded criminal legal aid? We believe that the Law Society should continue with these pro bono services in running CLAS.

26. But the Government can increase the funding, and CLAS will be able to enhance its capacity to support the processing and granting of aid to a larger group of accused persons. Funds will be used towards honoraria or disbursements for lawyers as well.

27. The intention is that an independent Criminal Legal Assistance Steering Committee can be set up which will oversee the policies governing the disbursement of the funds.

28. That Committee will comprise representatives from the Courts, the Law Society and my Ministry.
    1. It will be chaired by a judge of the High Court.
    2. The policies the Committee will oversee will include:
       1. The types of offences for which aid will be granted;
       2. The nature of the means test; and
       3. The nature of the merits scheme to be used to ensure that the funds are used only to defend reasonably deserving cases.
    3. And the Steering Committee will oversee the policies on merits testing and aid allocation.
    4. And really, we need all of this to make sure that we are not writing a blank cheque.

29. I emphasise that because these are at the end, public funds, and we have to be careful of how we use the public funds. In other countries, they have been scandals where wealthy defendants use it because they say, “Well, there is an injunction on my assets; therefore the state ought to provide for me.” And whole series of other abusers. And whenever I deal with these issues, I always find it useful to remind my audiences that our current financial position is not as many people might expect.

• Context
  1. Current Budget
     1. If I can show you a chart as to what is our operating revenue – if you look at FY2013 – we are operating at income – all the COEs, and income tax and everything is $55 billion, and our expenditure is $60 billion. So we are today in a position of deficit every year. The reason why we are not in an actual deficit is because we take some money from the reserves, the accruing annual returns, from the reserves 50% of it and we use it. You know year after year, if you don’t have the reserves or if you start taking the capital on the reserves and start spending, you know what’s going to happen when your expenditure regularly exceeds your income? And therefore, each time, we think in terms of spending public money on something, what I have to compare is: Do I use it for healthcare? Do I use it for housing? Do I use it for education? Do I use it for criminal legal aid? I’m just giving you a perspective of the kind of thinking we need to do – Do I build the new Supreme Court? Do I get more judges? Do I pay the legal service more? These are all the budgetary issues. And legal aid has got to fit in within that framework, and has got to be justified as more deserving than some of the others in a situation where there are budgetary constraints. And these are the current constraints and every audience needs to understand, every Singaporean audience needs to understand the future constraints are going to be even greater.
  2. The population ratio shift
     1. Let me tell you why, if I can show you one more chart. We have six persons working in 2010 to support one retired person.
     2. Within the next 17 years, we’re going to have nearly a million people becoming retired and our support ratio is going to go down to two to support one retired person. Even if all things are equal, what does that do to income taxes? What does it do to the financial situation of the country? The economic vibrancy – where is its growth going to come from? And all things aren’t equal because when you have 40% of your population over 65 and many retired, what do you think will happen to medical costs, which the state ultimately will have to pay for? So those are going to shoot up. The trouble is, a lot of discussions today take place in Singapore without a clear understanding of our actual financial position and an understanding of how the government is planning for the next 15 to 18 years.
     3. The criminal legal aid, civil legal aid, all of these things, are very good to have, but it has to take place in the context of people making hard choices – Do I pay more in taxes? Do I pay more in GST? Do I spend a bit less on healthcare in order to spend a bit more on this? That’s the operating context, but having thought it all through, I believe that the step we are taking is the right one - to bring in criminal legal aid directly, funded by the Government.
     4. But what it also means is that we have to set in place a clear framework to make sure the money is well spent, properly spent, and not abused.

30. I think we are informed by the experiences of other countries. For example, in the UK:
    1. The government has had to cut back on its criminal legal aid funding, which had ballooned to more than half of its annual £2 billion legal aid bill.
    2. They have also faced scandals involving wealthy criminals who received legal aid from the state.
    3. There was also a lot of public unhappiness over high fees for barristers working on criminal aid cases that stretched on for months and then years.

31. I met with the Minister for Justice from New Zealand, maybe a couple of months ago. New Zealand has also faced problems with escalating legal aid costs. Those gave rise to concerns over the long-term fiscal sustainability of the system.
    1. To give you a sense of the problem, their legal aid expenditure rose from about $111 million in 2006/07 to $173 million by 2009/10 – an increase of nearly 56 per cent.
    2. The government had to tighten the scheme by proposing to adopt numerous measures:
       1. They wanted to pay lawyers a fixed fee rather than an hourly rate for legal aid criminal cases;
       2. Not allowing defendants to choose their lawyers; and
       3. Introducing user charges for family and civil cases.
    3. But the proposals received a pushback, and some had to be watered down.
    4. The New Zealand government’s legal aid expenditures remains at about $150 million. Payment made to lawyers, law firms and the Public Defence Service.

32. Therefore, we must learn from that and not repeat some of the experiences which we rather not have, or which we can’t afford. And we have to develop a system that is fair, prudent and sustainable right from the start. It is therefore not right to say that the State will underwrite all cases, will write a blank cheque. The rules will have to be worked out.

33. But as I have said, this approach I have discussed with you today represents a clear shift in policy and philosophy for the Government. This is in keeping with the other changes being made, as our society matures and changes, it is also in line with the views that have been expressed to us by nearly 50,000 Singaporeans during Our Singapore Conversation.

34. And the changes have to be seen as part of a larger context – you know that the universal health care has been proposed, will be introduced, such that every Singaporean will be covered. The increase in medical subsidies; the substantial increases this year that have been announced on childcare and infant care assistance; and the substantial increase in housing subsidies; and opening up of a 3rd Law School to help those who are not able to go to Law School in the first place. Really a more inclusive society, a more compassionate society.

35. But the bill always has to be paid by someone: either through current taxes, or through debt which means the younger people here will be asked to pay them. Our approach will be prudent, we will try to keep the taxes as low as possible. In the near future, given that we have been careful, taxes will not have to go up despite these changes. But eventually they will have to go up as our society ages. And really, as I said earlier, we have to decide between competing considerations now and then.

36. Those are the debates which are taking place elsewhere right now – where do you put your money? Do you increase taxes? Do you cut back expenditure? Or do you simply print? These are the choices that every country faces. We face it from a position of strength, in that we have been prudent so far.

The Role of the Legal Profession in Providing Pro Bono Work

37. This move to substantially support criminal legal aid is not a move that the Government can do alone. We are building on the substantial efforts that lawyers have already put in – there is a section of the Bar that has deep passion for criminal legal work and has been deeply passionate about doing it pro bono if necessary.

38. Since 1985, when CLAS was set up by the Law Society, the scheme has helped many people. I commend all lawyers who have dedicated time and effort towards pro bono work.

39. As we move forward, the legal profession will have take on a crucial role of ensuring that on the ground, aid is allocated with care, and legal representation is of high standard and high quality.

40. The Law Society estimates that they would need about 200 lawyers who regularly contribute their time, for the proposed enhanced criminal legal aid structure to be successful. This has to be done in partnership between the Government and the Bar. And we hope that lawyers will support this work.

Conclusion

41. On this note, I would like to commend the Association of Muslim Lawyers and other Muslim organisations, for example, the Jamiyah legal clinics, for the good work done in this area, and I would like to thank you for your contributions in promoting access to justice.

42. The AML has been working at enhancing the relationship between the Bench and the Bar as well as helping pro bono work.I also note the AML’s partnership with the Subordinate Courts for the roll out of a Criminal Guidance in Plea Scheme, and that this will be followed by a Family Court Volunteer Scheme before the end of the year. I congratulate you and I look forward to these efforts bear fruit.

43. Our excellent judicial system also plays an important role in advancing access to justice. I am very pleased to see distinguished Malay judges on the District Court bench, we hope that we will also see Malay judges on the Supreme Court bench.

44. There are many challenges ahead for us. These enhancements in legal infrastructure will I believe, help us in the future. Thank you.

Last updated on 21 Oct 2014