Speech by Senior Minister of State Assoc Prof Ho Peng Kee during the Committee of Supply Debate
13 Feb 2009 Posted in Speeches
Sir, let me first address Ms Ellen Lee’s comments concerning community mediation.
MinLaw has been actively promoting the use of community mediation through various measures. We have established an effective community mediation service, with a network of Community Mediation Centres or CMCs and a strong pool of trained volunteer mediators, currently standing at 132. We have also strengthened our Magistrates’ referral framework and worked closely with key partners such as the police, Housing and Development Board, the Courts, Grassroots Advisers and other key frontline agencies to ensure that appropriate cases are channelled to the CMC as early as possible. So, these efforts have yielded positive results. In the past three years, CMC handled yearly an average of about 550 to 650 mediation sessions with a 70 to 75 per cent success rate. In other words, three out of four cases resulted in mediated agreements. For cases that were not successfully mediated, the opportunity that the parties had to hear each other out before a neutral third party would have had a salutary effect.
As Ms Lee points out, currently, the three main challenges are firstly, getting the parties to come to the CMC; secondly, getting them to abide by the mediated settlements; and thirdly, the need for an avenue to obtain final adjudication when cases cannot be resolved through mediation.
Legislative Framework - CPC Amendments
- Sir, we have been working on these issues. On the first, whilst not fully convinced that making mediation compulsory is the way to go, we have, taken steps to nudge the parties towards mediating their dispute. The first was taken about four years ago, when we interposed Persuaders to seek out unwilling parties, to convince them to give mediation a try. Soon, we will take another step when we amend the Criminal Procedure Code or CPC. An amendment provides that Police will, in an appropriate case, refer the parties to mediate at the CMC. And another amendment will provide that where any party fails or refuses to go for mediation without reasonable cause, and after such referral, should the case escalate to the Court thereafter, the Court may draw such inference from the refusal as it considers proper. Now this way, parties who refuse to appear for mediation when the other party has requested for it, following a Police referral, will know that there may be consequences to their refusal.
CMC Settlement Agreements - Re-Mediation Clause
- On the second issue of enforcing the parties’ agreements, CMC’s role is to provide the parties with a neutral platform to jointly work out a mutually acceptable solution to their problem. It does not have an enforcement function. The settlements arrived at between the parties are binding on them essentially as private agreements, arrived at through negotiation and consent. As agreements, they are enforceable in a Civil Court in the event of a breach. It is not for the CMC to secure the enforcement of such private agreements on the parties’ behalf.
- Nevertheless, I appreciate the point that Ms Lee makes. Hence, the CMC has reviewed its template for settlement agreements, and will incorporate into them a dispute resolution clause that will route any disagreement concerning the mediated results back to the CMC for further mediation, if the parties agree. This will give the parties some assurance that after mediating the dispute, CMC can still play a role to help them work out their differences.
- I hope that these two enhancements will incentivise disputing parties to exhaust all mediation options before considering going to the Courts.
- On the third issue of providing a forum for adjudication should mediation fail, the Neighourhood Court was established by the Subordinate Courts last year precisely to fulfill this role. This Court is presided by lay Justices of the Peace who are senior lawyers with experience in such matters. Five were appointed last year and have so far heard three cases. Thus, we do have in place a system to deal with these disputes.
- In summary, Sir, we have fine-tuned the community mediation system as we worked it the past 10 years. We will continue to monitor these refinements, and make changes, as necessary, to ensure that they achieve their objectives.
- Sir, I now turn to what Dr Teo and also Ms Lee have said about the need to provide Singaporeans with adequate access to justice and legal aid.
- Sir, two initiatives, introduced in 2007, have helped to ensure that quality legal aid and advice remains accessible to Singaporeans, especially the financially less well-off. First, we raised the Legal Aid Means Test to cover the lower middle income group. A family of four, that is, a working father with three dependents, now qualifies for legal aid if the household income is about $2,600 a month, compared to $1,900 before the amendment. This way, LAB helped 960 more people in the first 10 months of this financial year, making up about 13 per cent of the total who qualified for legal aid. Overall, 93 per cent of the 8,200 cases registered this year qualified under the means test. Indeed, for family law matters which make up a high proportion of the cases the Legal Aid Bureau (LAB) deals with, Tanjong Pagar Family Service Centre (FSC) has a pro-bono legal assistance scheme to help those who marginally fail the means test.
- Now, another initiative was when MinLaw worked with the Law Society of Singapore and two Community Development Councils to set up Community Legal Clinics or CLCs in September 2007. Now, in their first year, these clinics provided legal advice to some 2,400 persons. About 380 lawyers from 21 law firms, including six senior counsels, volunteered their time at these clinics which are run on average four nights a week. Nearly all who sought help received legal advice from the clinics within one to two weeks from the date they registered with the Law Society’s Pro Bono Office.
- Sir, our assessment is that there is currently no need to set up more legal clinics, but we will monitor the situation, and will certainly do so if the need arises.
- But besides these two MinLaw initiatives, there are adequate avenues for Singaporeans with a legal problem to seek redress. For example, they can seek redress personally - at MOM for employment and workmen compensation matters. Or they can also tap the many mediation services covering diverse areas, such as bank-related matters at Financial Industry Disputes Resolution Centre (FIDREC) - I think it was in the news recently - or at the Community Mediation Centres (CMCs), which I have talked about, for matters on the ground, as well as for example, the Insurance Disputes Resolution Organisation (IDRO), should they have disputes on their insurance policies. So in short, we have in place, over the years, put together a network, so that Singaporeans who need legal help can seek it.
- Now, Ms Lee raised a pertinent question about possible abuse by those who receive legal aid. I assure her that there are measures currently in place to prevent aided persons from abusing legal aid.
- Firstly, as she knows, all applicants who pass the means test are subject to a merits test before aid can be granted. If applicants make unreasonable or unrealistic claims, or intend to prolong litigation to escalate costs for the opposing party, or refuse to take legal advice, legal aid can be refused or cancelled.
- Secondly, LAB encourages all aided persons to litigate in a reasonable manner and to seek alternative dispute resolution mechanisms where available. So, for example, in divorce cases, mediation is routinely used by the Family Court to help parties narrow their differences and arrive at an amicable settlement of the issues. Aided persons can also be referred to the Give Another Lifeline or GAL Programme, in which counsellors from the Tanjong Pagar FSC provide counselling services at LAB’s office. Now, the point therefore is LAB continually monitors its cases to ensure that it is reasonable for legal aid to continue.
Assessment of Contributions and Party to Party Costs
- And thirdly, and this is in line with Ms Lee’s suggestion, LAB may also require the aided persons - the ones that she has described - to make a higher contribution towards his case, since one of the factors assessed is the amount of work done. The assigned lawyers may also claim a larger sum for the work done. Now furthermore, where it appears to the court that an aided person has acted improperly in the conduct of any legal proceedings, the court may order the aided person to pay party to party costs and also the costs of the Director of Legal Aid or the solicitor representing him.
- Ms Lee also asked if the means of aided persons can be regularly reviewed. Now while this is a reasonable suggestion, doing this for all cases as a matter of course will cause inconvenience to aid recipients in legitimate cases. I assure her that the initial means test conducted is rigorous. But let me also say that if LAB receives information, for example from an opposing party, which shows that an applicant is above means, legal aid may be withdrawn. LAB is also considering imposing a legal duty on an applicant to inform the Bureau whenever there is a significant improvement to his financial position.
- And lastly, as to the question of co-administrators, we agree with Ms Lee’s suggestion. Following a recent review, LAB has decided that the means of co-administrators need not be taken into consideration.
More staffing at Small Claims Tribunal and Subordinate Courts
- Mr Lim Biow Chuan shares his concern on the manpower situation in the Subordinate Courts, including the Small Claims Tribunal (SCT).
Increase in jurisdiction of the SCT
- Indeed, as Mr Lim says, the SCT’s jurisdiction has been progressively enhanced. Although the total number of cases heard by it has declined, more of such cases are now more complex, requiring a longer time to resolve. For example, there were 1,100 cases involving short-term residential agreements last year compared to 400 two years ago in 2006.
- The Subordinate Courts have assured me that they will monitor the caseload to see if more manpower is required to be allocated to the SCT. But I should clarify that MinLaw does not allocate resources to Subordinate Courts whose Budget is directly allocated by the Ministry of Finance. In any case, I understand that, like the rest of the Civil Service, the Subordinate Courts hope to fill up its vacancies and recruit more staff in this economic downturn.
Waiting time at SCT is not long
- On average, the waiting time from the time of lodgment of claim to the first Consultation before the Registrar is 10 working days. If the case is not resolved at the Consultation, the waiting time to the hearing also averages 10 working days. These are acceptable timelines. I understand that the SCT will strive to maintain this timeline notwithstanding its enhanced jurisdiction.
Measures to aid productivity
- The Subordinate Courts have also put in place measures to improve productivity. These include expanding the use of alternative dispute resolution, as well as active case and process management. So, for example, during consultation sessions at the SCT, Assistant Registrars help the parties, who are usually not legally represented, to better understand the issues in dispute. And in the many of these, this has helped parties to resolve their differences amicably. Over the last eight years, the resolution rate is a high 87 per cent.
Long Hearing List
- Mr Lim observes that Deputy Registrars sometimes handle a large number of cases such as Pre-Trial Conferences (PTCs) for cases proceeding for Assessment of Damages, more commonly known as AD-CDRs. He cited the example of very long AD-CDR hearing lists. The Subordinate Courts have clarified that AD-CDR hearing list which Mr Lim cited for Monday (9 February) and Wednesday (11 February) was actually 83 and 78 cases respectively. I think somewhat lower than the figure that Mr Lim cited.
- My understanding is that multiple cases are usually fixed for these hearings as each application is not meant to take long. Nevertheless, the Subordinate Courts will monitor the number of cases for each list and where necessary, increase the number of hearing sessions. More staggered timings will be set for hearing lists with multiple cases. Lawyers with other commitments may request to be heard urgently, ahead of the queues. Consequently, even if there is a long list of matters, as far as possible, the aim is to try and make sure that lawyers are not kept waiting unduly long for a single matter to be mentioned.
Further Measures to Improve Waiting Times at Subordinate Courts
- Mr Lim will be pleased to know that to improve waiting times in relation to AD-CDRs, two refinements are being planned. First, effective next month, when renovation works at the Primary Dispute Resolution Centre (PDRC) are completed, AD-CDRs will be conducted at a Chambers there. This will improve efficiency by cutting down time for lawyers, who have multiple cases at the Registry and the PDRC, from having to move between both places. Secondly, the Subordinate Courts intend to introduce staggered timings for AD-CDRs, for example, two morning and two afternoon timings. They have further assured me that they would monitor waiting times more closely, taking feedback into consideration.
- The Subordinate Courts recognise that just as judicial resources are precious, so is lawyers’ time. Leveraging the resources that it has, I understand that the Courts will continue to try and increase productivity, reduce wastage of judicial time and to reduce waiting times for the lawyers so as to serve the public better.
- Ms Sylvia Lim argues for more attention to be given to victims in our criminal justice system by introducing a Victim Personal Statement (VPS).
Empowering Victims in case processing
- Sir, whilst we have not enacted victim rights legislation and we have not introduced Victim Personal Statements, as have some countries, I assure Ms Sylvia Lim that our criminal justice process does take into account victim concerns. For example, early on in processing a case, Police informs the victim as to how the offence would be classified, as well as the name and contact of the Investigating Officer. This assures him that Police is looking into his case and that he can contact them if there is a need to do so. In the course of investigations, Police updates the victim further at key milestones such as when a suspect is arrested.
- One objective of a VPS is to render practical assistance to victims, to ask him or her whether he needs help. Even without a VPS, victims in Singapore are not left to fend for themselves. For example, the Family Court provides a wide-ranging network of support to victims of family violence. Thus, in every Personal Protection Order or PPO application, a counsellor assesses the history of the case and the risk of family abuse to the victim and children. He will then advise her on the court procedures involved in applying for a PPO and apprise her on safety measures to take. In appropriate cases, the victim is referred for counselling at a Family Service Centre or Crisis Shelter.
- If a PPO is breached, Police cautions the accused against inflicting further violence against the victim before he is released on bail. In addition, Police makes an effort to let the victim or any social worker counselling her know when an accused is due for such release, advising her to contact Police if there is a recurrence of violence against her. These and other initiatives such as the Vulnerable Witness Support Program where Volunteer Support Officers are assigned to provide support to victims ensure that victims here are not alone in their hour of need.
- On the bail process, victim concerns are considered in bail bond reviews. The recently established Bail Court adopts an individualised approach towards every bail application. In deciding on a bail application, the court takes into account many factors, including the victim’s safety. Where a victim is in need of protection from physical violence or harassment by an offender who has been charged in court, the court may exercise its power to refuse bail. If bail is granted, the Judge can also impose conditions, for example, that the accused cannot approach or communicate with the victim while on bail, to lessen the risk of re-victimisation. And indeed a breach of the condition may result in bail being revoked.
- On the use of Victim Personal Statements for sentencing purposes, our Courts have actually used Victim Impact Statements or VIS. Now for in appropriate cases, in Singapore, these VIS or victim impact statements are submitted by the prosecution or called for by the Court to assist it in meting out a fair sentence. Indeed a recent case was last year where a VIS was tendered in Court involving a woman who was pushed by her boyfriend onto the path of an oncoming train at a MRT track. The emotional trauma that she had suffered by the accused was captured and this was put forth before the Court for the purposes of sentencing.
- But let me say this: a VIS is not required in every case because in the majority of cases, the impact of the crime on the victim would generally be evident from the facts before the court. In addition, any views or concerns of the victim which are relevant to sentencing are likely to be highlighted to the Court by the Prosecution in submitting on the sentence. Another consideration is that a victim may not want to open himself up to the possibility of being cross-examined. We should leave the requirement for a VIS flexible, as we do with the principles on which the Courts assess sentences. Be that as it may, my understanding is that the Courts will continue to call for victim impact statements in appropriate cases.
Compensation orders to victims
- On the issue of the accused compensating the victim, as Ms Lim knows, section 401 of the Criminal Procedure Code empowers the Court to order an accused person to pay compensation to the victim. And there have been cases where the Court has made such orders, a recent one (I think some time last year) involving the abuse of a Foreign Domestic Worker last year.
- As in the case of victim impact statements, ordering compensation against the accused may not be appropriate in every case. Indeed, in some situations, this already occurs informally, for example, when an accused pays the medical fees incurred by the victim. On this, my understanding is that the Attorney-General’s Chambers will continue to identify appropriate deserving cases where compensation can be sought.
- Ultimately, as in other areas of criminal law and criminal justice system, the question is how to maintain the right balance and though Ms Lim has cited other jurisdictions, I think I have said this in Parliament before, Singapore has to find its own balance. This area on the use of VPS and various processes that she talked about, it is how to recognise the victims’ interests which I have illustrated Singapore does, and at the same time balancing it with the right of the accused and also the need to protect the wider community. And so we have to strike the right balance, and I should remind the House that even though we do not have specific legislation and victim personal statements, the concerns of the victims are indeed taken care of throughout the entire process from the time she reports to the time the case is heard before the courts. And so let me assure Ms Lim that even though she has spoken about this, the victims’ concerns are indeed something we look at quite closely in Singapore.
Last updated on 26 Nov 2012