Keynote Address by Law Minister K Shanmugam at NUS-SMU Criminal Justice Conference

16 AUG 2014

16 Aug 2014 Posted in Speeches

Professor Yeo Tiong Min SC, Dean, SMU School of Law and students, ladies and gentlemen.

Good morning to all of you. And thank you for inviting me here. You know there is a coincidence that there is also a UK students law conference on at the same time which my Senior Minister of State is attending. I always try to come for these criminal justice conferences because I think it is useful to exchange views, get your perspectives, understand and also have a frank conversation with you as to what we see are the fundamental philosophies and where we want to take the criminal justice system to.

Let me start by then emphasising some key principles of our approach to criminal justice, our philosophy and what the legal system ought to do. These are points that have been made before but let me just summarise. Then second I will move to something that is quite different from the topic at hand: it’s really on what we see happening in legal practice – and the employment prospects of young lawyers, something I think that will be of particular interest to most all of you and all the students. And I think these points need to be highlighted so that you and, even more importantly those that are aspiring to get into law school will see what the landscape is like, or is going to be like for the next four, five years onwards.

Justice system

Let me just first deal with the justice system. Our criminal justice system is anchored on four fundamental principles:

First, our laws and the criminal process must protect society and uphold law and order
Second, due process and the rule of law must be observed, and sentences must be commensurate with the culpability of the offender and the seriousness of the offence
Third, our law enforcement agencies must be empowered to discharge their duties. And law enforcement should not be seen as a ‘catch me if you can’, or jumping through a series of technical hurdles.
Fourth, where possible, offenders must be given the opportunity to be rehabilitated and reintegrated into society. We run one of the world’s best programmes and that aspect hasn’t received much attention.

The Government has made, will make decisive changes to the criminal justice framework:

If you look at it from 2010, substantive amendments were made to the Criminal Procedure Code
Evidence Act was amended in 2012
The mandatory death penalty for murder was changed, reformed in 2012

The cardinal objective however for this remains the same and I’ll explain. It is to deter crime and protect society against criminals.

But, deterrence is now less of an issue when you look at murder because the homicide rate in Singapore is 0.3 cases per 100,000.

So justice can be tempered with mercy.

And offenders should be given a second chance where appropriate.

So we have provided greater sentencing discretion to Judges to order either life imprisonment or death penalty, except under 300 a where the killing is intentional.

Now we’ve changed the laws on mandatory death penalty for drug trafficking, in one area. That was also in 2012.

So that greater sentencing discretion is provided to Judges where the accused:
Only played the role of a courier; and
Cooperated with Central Narcotics Bureau in a substantive way, or has a mental disability which substantially impairs his appreciation of the gravity of his acts, without it having qualified as a defence previously. I mean insanity or inability to comprehend the nature of the act was always a defence so this extends it further.

It also gives the CNB a better tool because it gives a powerful incentive to the accused to cooperate

We have reformed in the last year the criminal legal aid scheme which is still in progress: But it represents a fundamental change in philosophy that – previous position was the Government will not directly fund criminal legal aid, some civil legal aid but that has been changed.

And a committee has been constituted to look into:

rationalising some of the Penal Code offences, and
the treatment of mentally less able offenders

And that is in progress. The law provides a variety of ways in which how mentally disabled offenders ought to be treated. We want to see whether we can refine this further and make it better for them.

These are not exclusive. They are intended to provide just a gist of the changes that have been made, or which we are currently studying.

And I have spoken on these issues before
And the Director-General of Ministry of Law, Yee Sze, who is here has written an article as well in the Law Gazette which appeared in February of this year, which summarises our philosophy.

And some steps of the steps we have taken to reform the justice system are quite novel. We have taken best practices elsewhere and have gone further or changed or taken a completely different approach:

One of the examples is the Protection from Harassment Act or POHA
It was passed in Parliament in March this year and will be implemented soon. A Microsoft survey showed that 83% of young people in Singapore between 8 and 17 had been bullied online, offline or both, but primarily online. 83%, the second highest in the world.

Overwhelming support from the public to deal with this issue of harassment.

Our surveys showed:

More than 80% of those surveyed felt that online harassment was a serious issue
And 85% wanted tougher legislation to deal with harassment So we looked at other jurisdictions. And the Act here covers a range of behaviour
It introduces a new offence of stalking
It includes cyber harassment, bullying of children, sexual harassment within and outside the workplace. So for the first time it has been made clear. Sexual harassment whether in the real world or online would be an offence.

Path-breaking in some ways

And a complementary suite of remedies for victims:

It enhances the criminal penalties for harassment.
It also enables victims to bring a civil action for damages whether or not it amounts to a criminal offence.
And it enables victims to obtain protection orders or even expedited protection orders, to urgently stop the harassment either online or offline, before you go into the merits. So if a girl’s nude photograph is being put up, before you need to prove the substantive merits of your claim. So you could try and obtain an immediate order, to take it down.

It is novel in some aspects, positions of this legislation, such as:

Section 15 for example allows victims to apply for an order that a publisher of falsehoods about that person must publish a notification to bring attention to the falsehood and set out the true facts. So no damages, it may not be something you can succeed in harassment but it could be true you know, “this girl is this, this, this”. And if parts of it are untrue then the lady will be able to go to court and say “you take it down”. Even if it doesn’t amount to defamation. But no damages.

Another major change just introduced, the Family Justice Act passed this very month.

Of course our fundamental philosophy is that families should be saved as far as possible, and disputes should be brought to the court only as a last resort. But the reality is 40% of marriages end in divorce. And we need to look at that aspects and see what needs to be done.

Where the marriage has irretrievably broken down and the family ends up in the court system, then we have to look at the court process as something that should not worsen the anguish that the family is undergoing. Our approach has been the traditional one taken from UK and Australia’s common law system. And it’s adversarial, the parties goes to Court, and the lawyer sets out why the other party is wrong and then the judge decides and that takes a long period because first is the divorce then the maintenance and it is an extended process which could take a year and a half. And the parties usually look at the Court process as a continuation of their arguments.

The family Justice Act establishes a new Family Justice Court.

And it represents our commitment to transform the entire area of law.

The approach is:

First we simplify the kind of documents put up in court. Develop user-friendly standard forms and templates
For example when deciding on the divorce the lengthy affidavits on both sides containing irrelevant information and I’ve given this example to the media - ten years ago she poured pepper on me etc, all the entire history of the last ten years, fifteen years of marriage comes out. The entrails of all the issues, all of which have nothing to do with the issues before the Court, what each did ten years ago, five years, seven years ago. Marriage has broken down. But every time one party says something the other feels obliged – first of all there’s a huge amount of anger, then there’s a response and once they respond the other side says not all of it true, must respond again. And the fight goes on and on and you pay fees according to the number of affidavits and the number of pages that are filed. So we cut all that out. In my view it can be reduced in most cases to one page. Because there are only two issues in a divorce, one is how do you divide the assets and what is the maintenance, which is related to the first issue, the financial aspect. Which really depends on what is the standard of living, and how much the family is making – how they split, how much assets, how much maintenance. The second issue is the children, if there are children, who get custody, usually joint, what is the access, who gets care and control. So usually the mother gets that and the father gets access. That is the normal structure; of course there are the variations. I don’t see why it cannot be done in one page, one and a half pages. So we will provide standard templates.
Second, the standard templates have to be followed, unless there are good reasons as to why you need to add in extra information.
And we will get the Judge to lead the process, because the lawyers are usually under pressure from both the clients – “I want you to set out all these things, if you don’t set it out you are not a good lawyer”. So the Judge says these are the issues I want you to address these, and nothing else.
Three, the judge then identifies the issues.
Four, it’s the enforcement of orders that are made in matrimonial proceedings. That is not quite covered in the Act. But the current difficulties particularly women face in “tracking and tracing” of the assets. Usually what you get – many men are responsible, but some will day suddenly, “well I’ve lost my job, my father has asked for allowance, this car belongs to my friend and I’m holding it on trust” so currently I’ve got nothing. And everything is either on trust or family. Some even transfer the assets then it becomes a very extended process of tracing the assets – one of the cases I did man comes from a family that is worth at least 100 million dollars, a 50 million dollar bungalow suddenly went to the father to pay off a debt, in his job his salary was reduced suddenly and he lives off his parents. And his huge Mercedes is on trust. So wife gets nothing. So going on current law it becomes very difficult unless the wife has the resources to go and unwind each step of the way which we did in that case for a variety of reasons but you can see the difficulties. And also woman who seek to enforce maintenance orders have to apply to court to navigate the court system, which may be unfamiliar and daunting – there was lady with a white collar job earning $3000 - $4000, may or may not be a graduate, does not really understand the process and the who thing looks formidable.
And the numerous court forms and affidavits as they’re doing it on their own.
Hearings in the court may take up much time and effort of course, and uneconomical to enforce We are now giving some thought to how we can change all of this. And we are looking at - and it’s a departure for us also - at continental systems, automatic enforcements, and a greater role for the Court system to take over the enforcement and enforce it, without requiring the parties to take a series of steps. Hopefully it will create a more cost-effective and efficient framework and ensure adequate disclosure of assets.

And we are also looking at how we can provide more practical support for women who want to enforce maintenance orders.

I put up some fact scenarios, these are real cases.

Case 1: A lady, Ms B, attended MPS earlier this year. Ms B She and her ex-husband have two children who are both below 10 years old.

Ms B has been denied her visitation rights by her ex-husband, and her ex-husband has defaulted on paying for her maintenance on multiple occasions.
Ms B requires legal representation but cannot afford a lawyer due to her limited income. Civil legal aid is available if you meet the threshold but it’s not the easiest thing in the world.

Case 2: A lady, Ms M, filed for divorce against her ex-husband in 2003. They have two kids, who had been below 5 years old at the time of the divorce.

The legal tussle between both parties over the children and all sorts of issues has gone on for 10 years, not because of the system, not because of the lawyers those two are still carrying on their fight. So she is trying to prevent him from visiting the children, she comes to complain about giving husband access; he comes to complain about not getting access so it continues. The children are now fifteen, completely soured up
Don’t want to take the father’s surnames. Whatever happens between the parents, the children do not need to go through this.

Case 3: A lady, Ms A, has been battling for custody of her two children aged below five years old after her divorce for two and a half years. Again it’s not the system, it’s because if people have money and they are willing to spend money on lawyers, they can drag it out, make arguments and points. So now we have got to re-look at it.

Ms A, who has a mid-level job has spent $40,000 on legal fees thus far, but has since found pro bono aid.
During the court battle with her ex-husband, the husband makes allegations. Ms A felt the need to put on record her rebuttals to the lies and aspersions cast by her husband in numerous affidavits. So both sides were fighting through affidavits.

Yesterday, I received another email after the publicity of this Act a lady – very emotive, and full of despair and. You can understand the parties going through divorce, in that frame of mind, but we can try doing something on the process side.

So this I have intended to give a snapshot of the criminal justice system, outside of it, in the social justice system:

What we have done; and
What is our philosophy and what we are prepared to do? Legal system and the laws have to serve people, must serve society: and at the same time, while it protects the individual and gives the individual maximum freedom, it must also balance it against the rights of society. And the two have to be balanced and the process must be fair and with that as a fundamental aim, we are not bound by any dogma or ideology to say we inherited this, we will do what is necessary, and that we think is suitable for our society. To constantly relook issues without being bound by history or precedent. That’s our philosophy.

Now let me now deal with a completely different question: the increasing number of students who are taking up law, and the potential impact on those wanting to practise law, as opposed to somebody having legal training.

Supply of Lawyers

Our economy is entering into a mature phase.

We used to grow at 8%, 9%, 10%. People sometimes question why we need to grow. I’ll tell you why. Because each time you want better bonuses or you want new employment, unless the businesses are growing, how does the employee get better income. We are however unlikely to grow at the same rate since its independence. We are now looking at 3% - 4% and beyond 2020, perhaps 2% or even less. At the same time, because of the factors of economic growth are levelling off – factors of economic growth are population and space and raw material – all of which you know the story on Singapore.

We have now 6 people working for 1 person above sixty five. For 2030, that is fourteen years from now, most of you’ll will be in your mid to late thirties, that will come down very sharply to 2 persons working for 1 person above sixty five. So you can imagine the demographic challenges, the impact on taxes, all things being equal – and all things are not equal because once you hit above sixty five, you visit the doctor more often, for those of you with parents above sixty five will know – medical costs are going to shoot up. People above sixty five, people above seventy will come to the government and say “what are you going to do to look after me”. And they have the voting power. And they will make up 40% of the population. That’s 900,000 people passing the threshold of sixty five in the next fifteen years. I don’t think our people have understand the economic and existential issues that will come from that.

We will look at and we always look at not just current issues but issues down the road, in fifteen years, twenty years.

Even if it is shocking for the population now, which we have to. That’s the duty of a responsible government. And that is what concerns most of us. And if you look at challenges, the regional challenges and issues, internally our demography is a huge challenge And as people cross over sixty five, and we are taking steps to ensure they can continue to work after sixty five, but some will stop, the productivity will be much less, the impact is that the economy will be much lower. And the prospects in the economy will be very different.

So the prospects for lawyers and other professions must be viewed in this context.

The Singapore legal profession

What’s the state of our profession? March 2013, there were 4,432 lawyers with practicing certificates, just under 4,500.

But that’s nearly a one quarter increase, 25 percent increase from 2009. So between 2009 and 2013, just in those four years, the number of lawyers with practicing certificates has gone up by 25%. The economy hasn’t gone up by 25% between 2009 to 2013.

And there’s also been a substantial increase in the number of students reading law.

In particular the number of overseas law undergraduates from Singapore has increased.

If you look at the UK universities, the number has more than doubled. Between 2010 and 2013, just in those three years, the number has doubled from 510 to 1,142. The number has increased very significantly and very quickly. This has implications for students in the context of a relatively small legal market in Singapore.

Number of students in Australian universities has also increased by more than 25% just between 2011 and 2013, so there’s been an explosion. If you take 2010 to 2013 there has been a very significant explosion from 303 to 386.

From 2009 we’ve been studying these figures and it hasn’t been easy to get the figures in the first place because people can go overseas and they don’t need to tell us that they are studying law, there is no rule or law which says you got to register with the government of Singapore, and often people could start in one course and switch, so we really don’t have a clear fix on what students are doing, but these are the numbers we are able to get, and they may understate rather than overstate.

And part of the problem is, law is now increasingly replacing social science, it’s a new social science. Everyone wants to read law. This is an observed tendency. The number of local law graduates, has obviously remained fairly consistent between 345 to 384 between 2011 and 2014. Your law school is at 150 here, others have been talking to us to increase it, and we have said, go easy, and this is one of the reasons.

What are the possible consequences in Singapore?

Between 2010 and 2013, less than 10% of the graduates who passed Part B were not able to obtain practicing training contracts, less than 10% meaning more than 90% were able to get training contracts.

On average, if you look at local graduates, 94% got training contracts between 2009 and 2013. So if you went into a local university, you are guaranteed a training contract.

But about only 70% of overseas graduates secured a practicing training contract during the same period.

But this year, we estimate that 642 graduates will be competing for perhaps about 490 practicing training contracts. That means about 150 students will have difficulties even getting a training contract, let alone getting employment after that. And that’s only an estimate, I emphasize, we cannot be sure of the actual situation but the broad trend is what I want to say.

Take for example the 1,500 students, but the 1,100 odd students in UK and close to 400 students in Australia makes up 1,500. Now if you recall earlier I said there are 4,439 lawyers with practicing certs in Singapore, that means the entire legal profession is under 4,500. And within the next three years or so, that population of 4,500 is going to be added on by 30%, 1,500 new entrants into the market.

Now, I’m not sure how many economies in the world can absorb that kind of percentages, 30%.

And of course, the numbers keep going up, and while I can control the numbers in Singapore law schools, I have no say and control over who goes overseas and does what. Economy at the same time is growing at 2.5, three, 3.5%. The market is not going to grow by 30%.

So the first stage is just getting a training contract, the second stage is getting employment. So the point is that demand from students and parents to get into law school is huge.

There are more than a thousand applicants for the 150 places that are available here, and NUS has similar kind of data, and everyone wants to do law. I have decided to highlight this because I think it’s important that parents and students have an understanding of the legal market, and they make their choices.

And there is a further point, the globalisation for most of you may simply be a word that you heard, I don’t think you’ve understood the implications but let me tell you what the implications are.

You have law firms in Bangalore now, each with 500 to 1,000 lawyers. They are bright, they are educated in the common law system, and resources are now available online, meaning any research on Singapore law can be done online. So a client can come to a law firm in Singapore and say, there is this piece of work, I want you to blend it, meaning I want all the research and analysis and opinions to be first drafted in Bangalore because their lawyers get paid $1,500 a month. I want that cost. Then I want you to supervise it and look at it, and give me the final product. So the lawyer in Singapore gets paid more for the supervision, no longer for the underlying work.

Which means a reduction in work, a substantial reduction in the work. So the only work that would be done here, it’s not yet the case, but in a borderless world with globalisation, these are the natural implications and it is happening in many places, in the US and UK, given the high legal fees, clients go to a law firm and say, I’m not going to do what was so in the past.

In the past, my time and so on, client comes to you and you say these are my fees, and for lots of corporate work, the way it works is, if I have to put ten lawyers on the job, I put ten lawyers on the job, they get charged whatever rates according to their seniority, at the end all of that is added up plus disbursements that the client pays. But law firms used to be the only ones who had that kind of advantage where the law firms decide what the cost will be, what they will charge each lawyer out, and pay up.

That luxury is gone, by and large, now clients say this is the fee I will pay you, how you structure it is up to you. You go and work it out. And there is an increasing tendency to cut down on legal fees, because it’s seen as an add on cost. And I leave it to you, you go and decide whether you want to use lawyers in Malaysia, you want to use lawyers in India or elsewhere, or large law firms elsewhere which provide these sorts of background services, but you cut down.

So that is also happening at the same time while we have this huge explosion in the number of lawyers.

Now the study of the law provides good training of the mind. Let me go back one more point.

Again, you see headline numbers, first year lawyers getting five thousand dollars and so on, yes true, but not all.

And you see headline numbers that top lawyers make x million dollars, let me tell you, there is a huge difference between what the top two or three make, and what everyone else makes. Huge difference.

The number one, number two, number three could make 10 million, number four and number five could be making 1.5. That’s the reality of the market because if I’ve a billion dollar project or dispute, I want that particular lawyer, and I will pay anything for number 1. And both sides will pay anything for number 1 and number 2, or usually the top three, four lawyers. Beyond that, I’m not interested in paying. So often the screaming headlines I think mislead people. Now I’m not saying $1.5 million is bad, I’m just saying that‘s the top three, four, doesn’t represent the entire market.

Now the study of the law provides good training of the mind. Let me go back one more point.

Again, you see headline numbers, first year lawyers getting five thousand dollars and so on, yes true, but not all.

And then there is a big difference between the number five and number 35. So you’ve got to decide, are you sure you’re going to be number one, number two, number three, otherwise forget about those figures. Are you going to be number four to number 20, otherwise forget about those figures, look at what’s realistic for a start. Then of course good luck to you if you work your way up.

This is more for a realistic assessment of what the incomes are likely to be.

The study of law provides an excellent training of the mind, and therefore I don’t want to be seen as discouraging people from studying law, because you can apply your mind, you train your mind, it is an excellent training of the mind, as long as you don’t think: automatically when you come up the road is paved with riches and you are going to be all these things.

You have to have a realistic understanding of the market, the economy, the total structure.

Industry as a whole is becoming more competitive than the past, and you can do many things with a law degree.

You can develop skills that are useful in many fields - in-house academia, or you can go into business.

There are many people in banking, public service, arts sector have law degrees and make good use of them.

And ultimately if you cannot practice law you can always go into politics.

People may ask in this case, why a third law school? It’s slightly different.

First of all, it will be very small, 70, 80 students.
Second, I personally felt, there should be an alternative career pathway given to mature students who have done another degree or taken a career, now they have become teachers, or police officers or engineers, they have done something. In their 20s, they decide, this is not for me, I want to do law. I think people like that ought to be given a chance. They may not practice, they probably, very few of them will practice, counsellors and so on.

So the target is mature students with relevant work experience in contrast to students in SMU and NUS. And also the greater focus on criminal and matrimonial law.

And going back to the point on training contracts, I’m deeply seized with the issue, and we will look at the rules to see what we can do to try and make it easier for more students to get training contracts. We now have some rules which say that lawyers of this experience, trainings, you cannot charge out for trainees and so on, this is to protect the trainees and make sure they get experience rather than be used as additional hired labour, slave labour. But we want to see how we can relook at these rules to make sure that more students can get training contracts.

But ultimately, there is a limit to how much the government can intervene in the market. You’ve seen the figures.

We can also of course do things from the big picture perspective to try and increase the economy and the legal market.

One hugely successful area has been arbitration. There has been a substantial increase in the last five years, and all of this is fresh work, arbitral work, coming in, unconnected to Singapore usually, big work involving lots of lawyers and that has provided a huge amount of work for law firms. And we, through a series of very careful, structured initiatives, changing the laws, setting up a proper institute, board of directors, having conferences and publicizing, and primarily creating an ecosystem that is very favourable for arbitration. Within five years, we have become Asia’s leading destination, jurisdiction for arbitration and one of the world’s top four or five. It’s a little more complicated than that, but it requires very active effort, and we will do that. So that has led to an explosion of work, which is helpful.

Another completely new dimension, a game-changer, will be the International Commercial Court which we will set up by next year, the laws will be in place by this year. And that will bring in fresh work into the litigation scene, the court scene, which would otherwise have not been done in Singapore.

We are also going to emphasize quite a bit on mediation and make Singapore a world-class mediation centre.

And I have some hopes on ASEAN integration. If ASEAN can get more integrated and by 2015 December we hope for greater economic integration. There are hurdles along the way, it’s not going to be easy, it’s not going to be hunky-dory, but if we integrate better, then you are looking at a US$2.5 trillion economy which is bigger than the economy of India with 600 million people. And you need one centre in ASEAN, the 10 countries of ASEAN, that is a premier logistics, financial, services centre where there is rule of law, and your money is safe and where you are safe and where disputes can be handled effectively. And there is really one place, only one place, there is no other place. But the big if is, to make sure that all these things can be done. But it’s not just dispute resolution, we also want our lawyers to handle the project work, because not everyone is a litigator and not all litigation will come here. And the difficulties are that legal markets in every jurisdiction are fairly protective of their work. So ideally there would have been free movement of lawyers across jurisdictions, but that’s not going to be easy to achieve. But we will try and see what we can do.

So we have to really constantly think of ways of making sure we grow the legal market, we will.

Conclusion

In conclusion, I’m looking forward to having the dialogue later and in this conference, the purpose of my speech is not to make you morose in the morning or pessimistic, it is to be realistic. You are among the elite who have gotten in, and for those of you doing law overseas, you are doing an excellent course.

All I’m saying is, there’s nothing wrong with the course, but be realistic as to what you can do if you are thinking of practice. A lot of people are not thinking about practice, but just be aware of the numbers. There’s already been a 25% increase in the size of the legal profession in the last three years and if you look at the current numbers of students, that represents 30% of the current size of the legal profession. And I think the numbers keep growing, because more and more students that I meet, more and more parents that I meet, say my son or daughter is going to go and do law at such and such university.

Thank you.

Last updated on 18 Aug 2014