The Profession in Society: The POLA Perspective
 

The Presidents of Law Associations of Asia-Pacific Conference, or POLA as it is known, was hosted by the Society in August. Fifty delegates from 15 countries and four international bar associations joined us for it, the best turnout that I have seen in five years of attending the conference. The theme that we chose was ‘The Role of the Legal Profession in Society’, and this stimulated vigorous debate on the particular issues of law reform and of legal aid. As always, the conference enabled beneficial exchange of ideas. Ideas went both ways. The Philippines president was intrigued to learn that in Singapore prisoners are released by the prison authorities and so we do not require a court order to free a prisoner after he has served his sentence: they have to mobilise pro bono resources in order to represent impecunious prisoners who cannot afford the lawyer’s fee to move such a motion. For my part, I was especially struck by innovative ways of funding legal aid emerging from Down Under. In New Zealand, legal aid is funded by interest from clients’ monies and is carried out under a statutory scheme administered by the New Zealand Law Society. In Australia, pro bono work earns a tax credit. Rest assured that these ideas will find their way into the Society’s representations to government concerning the legal aid and pro bono arena. At the beginning of this year, the Society established a committee to review the landscape and make recommendations, and the committee’s report is due soon.

In the field of law reform we reported on the work done by the Society in relation to criminal procedure and the criminal justice system, including our report on access to counsel during police custody and criminal discovery, as well as our role in responding to government legislation submitted to us for comment. Both the Malaysia and Brunei governments have adopted the statutory restriction pioneered in Singapore (Legal Profession Act s 38(1)(c), as amended in 1986), that the law society or equivalent may only comment on legislation submitted to it. For the rest – including professions as conservative as that in Japan – such a restriction is considered to be at odds with the proper role of the legal profession in society, but the Philippines was alone in going so far as to include within its remit the passing of resolutions calling on the national leader to step down for loss of credibility.  

I believe that with the work done by the Society over the past few years, it is accepted that the profession collectively through the Society has a special role to play in relation to the justice system, which includes seeking reform and change even on such contentious matters as police custody. This clearly comes within our statutory purposes and powers. It is plain, however, that the role of the Integrated Bar of the Philippines in making strong statements on national leaders is quite unusual, and is no more suitable for Singapore than it would be in Australia or England and Wales. In countries like England and Australia, the role of the profession, through its representative body, extends beyond the justice system proper to questions of civil liberties, but a clear line is drawn between civil liberties and partisan politics. Thus, the Australian Law Council and the English Law Society have expressed views on the various proposed anti-terrorist measures, whether or not those views were sought by government. In my view, the profession in Singapore ought to be freed to express its views on civil liberties while keeping out of partisan politics. Lawyers do have a special expertise that justifies having a voice on constitutional and civil liberty issues. 

Of course, one practical obstacle to a stronger voice is that the profession is quite divided. When I was included in the Remaking Singapore process, and submitted a paper on reform to defamation law (which I consider to have fossilised and failed to keep pace with changes elsewhere in the common law world that have worked to strengthen democracy in those other jurisdictions), the strong response to it from other lawyers involved in the process doomed it to the annex to the report, a special place for changes rejected but which someday somehow might rise again. The point is that even if we did take on constitutional or civil liberty issues, it would be important to work based on a degree of consensus, of commonality of opinion. Otherwise, such comments should be made in a personal capacity, as mine were when I was (unsuccessfully) trying to change minds on defamation law.

At the least, however, the Society can foster debate and discussion within itself about the rule of law, constitutional law and civil liberties. I appreciate that for many of us these issues seem rather rarefied and remote from daily practice, but on the other hand, it sometimes seems to me that our lawyers have – through disuse and atrophy – lost much of the art and skill of putting a good, robust constitutional argument. This would be a grievous loss to the profession and society generally and is something I have repeatedly asked our continuing professional development committee to look at – nuts and bolts of judicial review for example.   

Next year, we will start the first of what we hope will be a permanent fixture in the legal landscape, a Law Society Bi-annual Lecture. The speakers will be eminent advocates from around the world who will inspire the profession with their work, example and vision. Watch this space.

Philip Jeyaretnam, SC

President

The Law Society of Singapore