Apathy and Independence
This was the speech delivered by the President at the Edu Dine dinner on 14 August 2009.
We are often accused of not looking beyond our own narrow interests and the interests of our clients, and this is one kind of apathy. But apathy is a Singaporean trait not confined to lawyers, and even when we as lawyers want to act in the interests of Singaporeans as a whole, our efforts are not appreciated. My theme tonight is therefore not only apathy among lawyers but also apathy among the clients we serve, and I hope to develop this theme through three stories.
My first story takes place in the 1970s. My friend
Terry opened a Japanese restaurant in Hotel Negara (now Pan Pacific Orchard)
called Steakery Matsuzaka. He decided it would be a good idea to install karaoke
in his restaurant and let his customers sing after dinner. The Sunday Times
carried a picture of happy diners warbling away around a jumbo teppanyaki
table. The next day the police asked him to apply for a Public Entertainment
Licence. I duly made the application on his behalf but to our surprise the
application was denied by the Licensing Officer. When challenged, the Licensing
Officer gave the following reasons:
1. People go to a public place to be entertained; they should not entertain themselves; and
2. There is a rule against singers sitting with customers; if customers become singers, then we will not be able to distinguish the singers from the customers.
We then made representations and pointed out that there were other karaoke lounges and we were told that they were all run by Japanese for Japanese, but Singaporeans should not indulge in this habit. So we appealed to the Minister for Home Affairs under the Public Entertainments Act. The Minister (through his Permanent Secretary) confirmed the Licensing Officer's decision.
I encouraged Terry to go on national TV to air his grievances, thinking that when his story was made known to the public, there would be some outcry. So he was invited onto a talk show called "Talkback" hosted by David Gabriel who interviewed him in his restaurant and Terry read out the letter from the Licensing Officer with the two reasons given for denying him his licence. But there was absolutely no reaction from the Singapore public - no letters in the newspapers, no questions in Parliament. Yet within two years there were karaoke lounges sprouting all over Singapore, run by Singaporeans for all Singaporeans. When I mentioned this anomaly to a senior civil servant, I was told that the EDB was instrumental in this change of policy, because they had been told that investors found Singapore lacking in nightlife and found that karaoke enlivened the scene, and that was what led to the change. Sadly, the change came too late for Terry, as he had to close his restaurant before karaoke became acceptable.
This of course illustrates the closed mind and lack of imagination of our civil servants of that generation, but also my own lack of courage in challenging this decision in the courts by way of judicial review. In fact Terry was braver than I in going on national TV to criticise the Government in the 1970s, when this was rare. But if I am accused of lack of courage, then I would ask what support I would have received from our courts had I shown courage at that time.
Let me now fast forward to 2005 for my second story. I acted for a client whose bank account was debited with $4 million because of a forged account transfer form. He complained to the bank, which raised a defence that under his terms and conditions, the bank was not liable for forged cheques or instructions. In my reply, I raised the argument that such a clause was contrary to section 3 of the Unfair Contract Terms Act ("UCTA") (which renders unenforceable any unreasonable clause in written standard form contract). The case law was unclear on this point, but I was eager to have a crack at trying to get a standard banking term declared unreasonable. However, I was frustrated in this challenge because the bank settled for 100 per cent of liability on the day of the trial so we never got the chance to persuade a court to declare this clause contrary to section 3 of the UCTA.
But arising from this, I had a look at my own
bank account terms and conditions and found that they also had the same exclusion
clause, and a further search revealed that all the major banks had the same
clause in some shape or form. This time I had more courage, and wrote to various
bodies to ask the banks to reconsider the fairness of this clause, considering
1. they were reversing the effect of section 24 of Bills of Exchange Act which provides that a forged signature does not amount to a mandate from a customer permitting the debit of his account;
2. as between them and their customers they could
and did insure against the risk of forgery under a Bankers Blanket Bond Policy
but their customers could not (the real reason banks have such exclusion clauses
is probably that such clauses can persuade their insurers to charge them a
lower premium for their insurance policies); and
3. they did not highlight to their customers that over time they had excluded liability under section 24 of the Bills of Exchange Act, so hardly any customers in Singapore know that the risk of loss for forged cheques would be placed on them.
I raised this issue with everyone I could think of - the Law Society, the Association of Banks in Singapore, CASE, the Academy of Law, the Straits Times, at public talks and even with a Cabinet Minister. So far, I have had no success, but I am still persevering, and waiting for a test case to come along where I can try to set aside this clause.
But in the meantime, I took the opportunity to write to the Straits Times in 2007 when a local charity found that its employee had signed dozens of forged cheques and left them with millions of dollars in losses. Someone wrote to the Straits Times to say that surely the bank would be held liable for honouring forged cheques, and I wrote to the Straits Times to point out that this was not the case in fact because it was likely that the bank concerned would have an exclusion clause. No one responded with shock and outrage, so my words continued to fall on deaf years. Last year, I gave a speech to a Rotary Club and expounded on this subject. Again, there was hardly any reaction from the audience, which seemed almost to accept this as the natural order of things.
What I cannot understand about this apathy is that this is a winnable war. So long as a large enough segment of the public protests long and loudly enough like the DBS High Notes holders did, the banks will come to their senses and settle on their own or be forced by the Government to settle. But our people seem ready to accept their fate quietly. I sit on the boards of some public companies, and I tell them that they are at risk if someone forges their cheques or instructions. And I tell them that they may have sufficient clout to actually renegotiate their standard banking terms and conditions, but so far, while they agree with me in principle, they just don't think it is serious enough to upset their bankers.
But the risk is real. Where there is forgery, banks will disclaim liability as is happening now with the former partners of Sadique Marican & Z M Amin. Zulkifli Amin forged his partners' signatures on his firm's cheques and embezzled $6 million, leaving them with heavy liabilities to their clients. The bank of course is disputing liability for these forged cheques and I do not know how much difficulty they will have in finding good legal representation to fight the bank.
So why are we not fighting for banks to accept that it is their responsibility to either change their banking terms or buy insurance for their clients? The answer is apathy, both on the part of the Bar as well as Singaporeans at large. Let me tell you that while such exclusion clauses are almost universal in Singapore, they are not generally used in Malaysia or Hong Kong, even by the same banks that are using these clauses in Singapore, because the market in those countries will not take it, but in Singapore our apathy has allowed the banks to change their banking terms by stealth, without highlighting the implications of this change so as to allow their customers the opportunity to be aware of their exposure to the risk of forgery.
Apathy is bad enough, but there is a related evil, namely the lack of independence. So we fast forward again to last year to my third story (which is actually a collection of stories).
At the height of the Lehman Brothers mini bond and high notes crisis, Tan Kin Lian (the man who stands on Speakers' Corner) was asking me to help him find lawyers for the thousands of investors who had lost substantial sums of money because of structured products. I couldn't act because, as a small firm, I didn't have the resources, but I had incredible difficulties persuading more than a handful of senior litigators to take up the cases because of perceived conflicts of interest. And I don't mean conflict in the sense of breach of the Professional Conduct Rules, but simply commercial conflicts. I practise as a barrister, so I have no problem suing anyone or acting for anyone, but every other competent senior litigator is a partner or a proprietor of a firm which is seeking to build up lasting relationships with long-term clients, such as banks or oil companies. So Singaporean lawyers do not generally believe in the English barristers' cab rank rule, meaning you act for any client who is willing to pay your fees. And believe me, it is not easy to get good senior lawyers to act against the local banks.
But if we don't have such a rule, it will always be difficult to find Singapore lawyers willing to act against the local banks. Fortunately, through the Law Society, I have managed to assemble a list of lawyers willing to act against the big banks or finance companies, and the Law Society will continue to consider it part of its mission to find lawyers willing to act for clients who have unpopular causes. This is in contrast to Hong Kong, which has an independent Bar, and they had no problem finding Senior Counsel to act for needy investors in their Lehman Brothers cases against their local banks.
Speaking of independence, we only have to look north of the causeway for a shining example. It is not often that I say that I admire the Malaysians, but we have to admit that, over the years, time and again, the Malaysian Bar has demonstrated fearless independence and courage. When the Lingam scandal broke in 2007, it was the Malaysian Bar which roused the people into action by their famous "March for Justice" on 27 September 2007 when over 2,000 lawyers marched in the rain from Kuala Lumpur to Putrajaya to protest against corruption in the judiciary, ultimately leading to the dramatic election results the following year. (Actually they only walked the last five kilometres, but that was forced on them when the police stopped their buses from entering Putrajaya.) But while I have publicly stated my admiration for their courage, I have also said that we in Singapore should thank our lucky stars that we don't have the same cause to have our courage tested, because, thankfully, we don't have the same evils that require us to take such a drastic stand. I have been careful not to say that, should such a situation arise in Singapore, we would follow the Malaysian example, because they did not apply for a permit for their march, and I cannot encourage any organised action by the Law Society in breach of the law (unless we want to demonstrate against the unjustness of that very law).
Some years ago, I was asked to act against a major local law firm who had innocently but negligently witnessed a signature of a purported mortgagor who turned out to be a fraudster posing as the owner of the mortgaged property. My partners in my old firm were quite unhappy about this, because they felt that lawyers in large firms should not act against other large firms. And I was asked why I wanted to do the case. My answer was simple. There was no conflict of interest, and I intended to conduct the case with every respect for the other law firm and not make any allegation which I did not genuinely believe. But the real reason I wanted to do the case was that I had spent a lifetime litigating commercial cases where the issues were disputes of fact or law, and few opportunities had come to me of doing a case where the issue was a simple question of right and wrong. I needed to feel that I was on the side of right and justice for a change, instead of just being a hired gun to argue a client's point of view. So I hope that all of you going into big firms with commercial practices will still retain that spirit that lawyers should feel the need that they are doing justice.
So what are the lessons and hopes for the future?
It is people like you in this room who need to change the mindset of our profession
and of Singaporeans at large:
1. You must be unafraid of commercial conflicts of interest where the cause is deserving, and you should worry about clients who may not be able to find competent representation if you do not act for them.
2. You must care about justice, and fight for justice where you see injustice, not just for your immediate client, but for the community at large.
3. You have to fight, or at least sound the alarm, against improper practices even though your efforts may be unappreciated by the people for whom you are fighting.
Only then can we ensure that all Singaporeans who deserve legal representation for a worthy cause will get adequate and competent representation and, in time, we will be able to educate Singaporeans to listen to us as members of the Bar and respect the Bar's leadership when we tell them that they must fight for their own rights and interests and not meekly accept the status quo where there are clearly wrongs to be righted.
There is nothing wrong with Singapore's legal
hardware - we have a fine infrastructure and legal system; not even much wrong
with our software either, as our law schools are good and our judges and lawyers
of high intellectual quality. It is the "liveware" that could do
with some improvement, the infusion of spirit and idealism that will put us
on par with other first world countries. So the future lies in your hands
and I hope that you will each in your own way contribute to making the legal
environment in Singapore a better one than what you find today.
The Law Society of Singapore