President's Message

Speak Only When Spoken To?

Members will have seen the minor fuss that has arisen following my interview with the Straits Times, whose reporter focused on the issue of section 38(1)(c) of the Legal Profession Act. This arose because of my reply to the International Bar Association's Human Rights Institute ('IBAHRI') which criticised the Law Society for what it perceived as our lack of participation in law reform issues. In my reply to IBAHRI, I explained that in fact the Law Society has been active in speaking up on matters of law reform, both formally and informally. On the other hand, I also pointed out the existence of section 38(1)(c), which was, to a certain degree, a restraint on unsolicited representations from us on legislative matters.

This in turn led the Straits Times to question me on the significance of section 38(1)(c), and I expressed the view that in reality it had not made a lot of difference to the position of the Law Society as a commentator on law reform issues. Over the last few years, Council has frequently been consulted by the Government and the Judiciary on legislation, both existing and proposed, and we have found ways to express our views on any issues where we felt that we had something meaningful to say, even if we have not been directly invited to comment. A notable example is the dialogue on criminal discovery we initiated with the Government in 2005 and the ensuing seminar held with our members on 22 July that year.

Whatever may have been the differences between our previous President in 1986 and the Government, I do not think the Government has since that time criticised any Council for speaking up on matters outside its legitimate areas of concern. Given that background, it is disappointing that the Government still maintains its stand that section 38(1)(c) is still necessary to restrain the Law Society in a way that no other society or NGO (or private citizen) is restrained. Nevertheless, since there is no intention on the part of any present member of Council to raise any issue that might fairly be described as more political than legal, the restraint is more apparent than real. While it is nice to have the Straits Times to speak up for our right to 'add value to debates on legislative change especially if they touch on constitutional or civil liberty issues' (Ms Chua Mui Hoong in the Straits Times of 1 August) I do not think that section 38(1)(c) would, strictly speaking, constrain us from speaking up on such issues if we were minded to do so. There is no legal restraint on our members holding seminars or fora on our own initiative to discuss any matters of law reform. And if those seminars or fora produced a consensus that certain laws should be changed for good legal reasons, we could find a way of making our views known.

However, we must realise that we are not the only voice to which the Government has to listen in considering law reform. There are many areas where our views on law reform should be given serious consideration by the Government because our expertise and experience give our views special weight. For example, our practitioners are in the thick of the recent legal disputes concerning how en bloc sales should be conducted, and we are more qualified than most to advise the Government on the deficiencies of the existing law. At the same time, we must recognise that, in any reform of the relevant legislation, the authorities must not only consider legal issues but the interplay between social values such as the breaking up of a community and economic values such as the rejuvenation of older housing estates and the more efficient use of valuable land. Our views on en bloc sales may therefore have to compete with other views which the Government may legitimately consider to have priority over purely legal concerns. That, after all, is the task of Government - to decide between competing priorities.

We also have to distinguish between our right or ability to speak and when we should speak. Recently, activists taking part in the Tak Boleh Tahan Campaign ('TBT') attempted to engage the Law Society in one of their battles with the Government when they presented a letter to ask that the Society provide free legal aid for 18 of the persons charged for assembling and holding a procession without a permit. The ground for this request was that the laws under which the accused had been charged were unconstitutional, and the Society should assist citizens who were prosecuted by the State for exercising their fundamental liberties. Since there was no indication in their letter that the accused had been unable to find legal representation, Council decided that the appropriate response was to give the accused details of our CLAS Scheme, and to invite them to apply for legal assistance under that Scheme if they felt that they came within the CLAS means test.
In my response to their letter, I said that the Society expressed no views on the specific complaints that they had against the Government. The Singapore Democratic Party ('SDP') has subsequently criticised that statement on its website ('The LSS has a wishbone where a backbone should be' was one of the politer comments.) The Society's position should be clearly understood. If people are unable to find legal representation, particularly when faced with criminal charges, the Society will try and assist, but it is not our function to compel its members to act for any particular client or indeed any particular cause. The accused persons' letter and my reply were posted on our website, so we publicised the accused's request for free legal representation to our members. Furthermore, the Society cannot take a position on the SDP's claim that the laws under which the 18 accused have been charged are unconstitutional, as that is a matter that is sub judice and for the Court hearing the case to decide.

The Society will therefore continue to act judiciously in participating actively in all issues of law reform, but remaining conscious of our own limitations as lawyers and our proper role in assisting Singaporeans' access to justice without pre-judging the merits of their case.

Michael Hwang, SC
President
The Law Society of Singapore