Saturday, July 19, 2008

Lawyers Still Have Space


The Law Society has long desired to see a change to a 22-year-old amendment that ended its powers to propose legislative reforms. Last week, it tried again when it responded to the International Bar Association Human Rights Institute’s report on Singapore.

The institute had said that the Law Society’s ability to comment on law reform was restricted by law and that the Society “is currently not fulfilling its mandate to speak out on law reform issues in Singapore”.

The Society emphasised that it “only has the powers conferred upon it by the Legal Profession Act” and that “it will welcome a change that allows it to initiate proposals for legal reforms”.

The Government stuck to its gun, arguing that the rationale for the current situation remains valid, which is essentially to prevent the Law Society from interfering in political matters.

But the issue does not have to be seen in such black-or-white terms. The Society can concentrate on matters affecting its members. Then, there are the goals of getting the public to understand legal issues better and maintaining the standards of the legal profession. One can argue that encouraging reflection on law reform issues falls within these other aims.

It is on this basis that Senior Counsel K S Rajah was able to argue that judges should be given some discretion when considering an offence that attracts the mandatory death penalty.

In 2003, he wrote that such a penalty could be unconstitutional because the Privy Council had found in another case that it infringed the protection against inhumane punishment. Although later, Singapore judicial decisions held otherwise, he further wrote in 2005 that “Singapore judges are made of sterner stuff and can be depended upon to pronounce the death sentence in a proper case”.

These articles, in turn, generated awareness and publicity about the issue in the media.

One can also argue that the Society is still free to comment on matters put up by the Government for public consultation since “the public” includes the Society.

Also, the limitation put on the Law Society has not prevented many legal practitioners from expressing their views on a range of issues. For example, lawyers Thomas Koshy and Mr Siew Kum Hong have from time to time raised law reform issues in this newspaper.

Lawyer N Sreenivasan was recently highly critical of the prosecution’s attempts to water down a court’s finding of acquittal. His view drew support from Judge of Appeal V K Rajah.

Lawyers have also been able to express their views through other groups that represent them.

For example, the Singapore Corporate Counsel Association, on its own initiative, presented its views to the Government on workplace safety and health legislation.

The Insurance Law Association (Singapore) had raised in its publication some concerns about difficulties faced by insurers in making payments to beneficiaries of insurance policies.

In 2005, the Monetary Authority of Singapore began to consider incorporating provisions in the Insurance Act to govern the nomination of beneficiaries. Draft legislation was eventually put up for public consultation last year.

Another important group is the Singapore Academy of Law, where Chief Justice Chan Sek Keong sits as senate president.

Here, there is a dedicated independent law reform agency: The Law Reform Committee (LRC) headed by Justice Judith Prakash.

The LRC has produced some papers that have led to changes in existing laws or the enactment of new legislation. For example, the LRC’s work in 2000 led to the introduction of the Limited Liability Partnerships Act in 2005, which has changed how some professional services firms operate in Singapore.

Early this year, members of the legal profession were invited to propose reforms for the LRC to look at. This is a powerful avenue for lawyers who wish to pursue a reform agenda.

The Ministry of Law has never declined “to receive comments and suggestions from the Law Society on specific legislation where it concerns the legal profession”.

The Society has stated that its “current relations” with the Government are “excellent”. Thus, it may wish to persuade the Government to direct other ministries to follow the example of the MinLaw by being as open to receiving the views of the society.

The Law Society can be pro-active in pursuing dialogues with ministries or key statutory bodies. Such regular meetings will encourage the relevant agencies to be more confident about seeking input from the Society.

In any case, the legal profession also enjoys a special position in Parliament. Several lawyers from both the ruling and opposition parties sit in the Legislature.

There is nothing to stop the Law Society from inviting these “lawyer-legislators” to meet lawyers on a regular basis for an exchange of views.

And there’s nothing to stop a lawyer who feels strongly about an important law reform issue from speaking up about it. It will not be unprecedented.

Dharmendra Yadav

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