POLA Bears Listening

I have just returned from the Presidents of Law Associations in Asia (‘POLA’) Conference. This year it was held in the Gold Coast, Queensland. It is a tremendous opportunity to meet up with our counterparts and compare notes — about concerns, changes in practice and the state of the profession generally.

The theme for this year was ‘The Independence of the Legal Profession’. However, much of the discussion was off-theme — focusing on the increasing use of preventive detention, with reduced judicial oversight, as part of efforts to combat terrorism. The Conference’s concern was that unless the case is proved to some reasonable standard, the risk is high that persons may be detained when they are not in fact terrorists (or abettors of terrorism). Concerns were also expressed about the conditions of detention in some places. POLA was followed by the LAWASIA Biennial Conference, and on the first day of that Conference, Stephen Kenny, lawyer for David Hicks, one of the Australians detained at Guantanamo Bay, delivered a fascinating speech about his experiences, including how his client was demonised in the Australian press.

In the course of discussions at POLA, we shared the legal position in Singapore concerning preventive detention. We also expressed the hope that, whenever Singaporeans need representation, members of our profession will respond, no matter how unpopular the cause or how ostracised the person. Without an independent profession, its members ready to act fearlessly under the law, the rule of law and access to justice are eroded and diminished.

I have remarked before how reforms in criminal justice and police procedure in Asian nations such as Hong Kong and South Korea have strengthened the rights of accused persons and broadened the role of lawyers over the past 10 to 15 years. At POLA, I learned from the Thai delegate that from the middle of this year a person being interrogated by the police will be entitled to have his or her lawyer present. She told me that those senators and legislative representatives who are also lawyers had been united — despite party differences — in pressing the Thai government to make this change.

Learning of this development in Thailand made me wonder why in Singapore progress in improving the position for criminal defence lawyers is so difficult and slow. It seems that we find it harder to reform criminal procedure and practice than other Asian nations, some of which 30 or 40 years ago we would have considered to be far from models. One problem is that we do not seem able to develop the same degree of consensus within the legal profession concerning the need for and direction of reform. This in turn has its roots in a widespread indifference to the finer points of constitutionalism. I recall the decision of the Indonesian Constitutional Court (by five to four) to quash Abu Bakar Bashir’s convictions because the law under which he had been charged had been enacted after the Bali bombing with purported retroactive effect and so was struck down as unconstitutional. One can only imagine how difficult it was for the majority to come to their decision in the face of public anger over the bombing. It was a brave decision, which demonstrated just how far Indonesia has come in developing an effective and robust legal system (at least at the higher levels).

But the general reaction in Singapore, even among lawyers, was that this was an example of Indonesia being soft on terror.

There really can be no doubt that the quality of criminal justice would be improved if there were greater safeguards during police interrogations — ideally the presence of a lawyer representing the accused, but at the least audio- or video-taping. Efficiency would also increase, because there would be fewer unreliable confessions that would have to be tested in court, taking up valuable court time.

Perhaps the criminal bar needs to work on persuading all lawyers of this, so that every lawyer, like our Thai counterparts, can then make a difference in the reform of the law.

Another interesting fact I learned is that in South Korea they have a mandatory requirement of 10 hours of pro bono work per year. If a lawyer does not do 10 hours of pro bono work, he has to pay US$300 per hour missed. These monies are then used for the Korean Bar Association’s charitable work. My response was that in Singapore the legal profession has a strong tradition of pro bono work, and that the Society would prefer to nurture this existing spirit of volunteerism rather than seeking to compel it. But it is nonetheless interesting to see how foreign Bars deal with this issue, which is of central importance in ensuring access to justice.

In August or September 2006 it will be our turn to host POLA. We will certainly want to involve the profession as much as possible in the Conference, so that we can showcase to overseas Bar leaders the strengths and virtues of our profession.

It was somewhat ironic that as we talked about the war on, and the prevention of, terror, out there in the beautiful Gold Coast sunshine were hundreds of people queuing up for terror at the many theme parks — and then screaming their way through rides with such names as Terror Canyon, Mammoth Plunge and the ominously named Claw.

I was glad to be safely indoors!

Philip Jeyaretnam, SC

President

The Law Society of Singapore