LEGAL AID AND ADVICE BILL

Order for Second Reading read.

The Minister for Labour and Welfare (Mr Lim Yew Hock): Mr Speaker, Sir, I rise to move, "That the Bill be now read a Second time."

Sir, His Excellency the Governor has signified his consent to this Bill being proceeded with.

In the Magna Carta, Sir, is laid down the principle on which the case for legal aid might be based, and down through the ages has come this guiding tenet: "To no man will we deny, to no man will we sell, or delay justice or right." It follows that all citizens should enjoy equality before the law and that there should be no necessity for a golden key to unlock the door to the courtroom. The ideal of fairness to rich and poor alike means that no man should suffer in the prosecution or defence of his legal rights for want of professional assistance and advice. Where inadequate facilities exist for a citizen of limited means to seek redress through the Courts for a wrong which has been done to him, or to obtain legal aid for his defence when he is committed for trial, then justice becomes a rationed commodity not freely available to all.

The efficacy, Sir, and success of any judicial system is dependent on three factors: firstly, the Courts of the country must be impartial; secondly, the laws which they administer must be fair and reasonable; and, thirdly, the Courts must be freely accessible to all. As regards the first condition, Sir, there is not the slightest doubt as to the high standards of impartiality attained by our Courts. In so far as the second condition is concerned, it can safely be said that we have no laws which discriminate between one individual or class and another. It is the last requirement, namely, accessibility, which requires our careful examination. It is of little comfort to the poorer citizen that the laws of his country are fair and just and that the Courts are impartial if, in practice, he is debarred from access to the Courts through lack of funds.

The question of the indigent person's accessibility to the Courts has been differently handled in various countries. England and Wales, Australia, certain European countries and a number of States in South and Central America, have statutory provision for legal aid. In the United States, Sir, organised private activity has been very marked in some States, such as Massachusetts. In that State, although there is no statutory provision in respect of legal aid in its ordinary civil Courts, the city of Boston can none the less boast of one of the finest legal aid societies in the world and the poor of that city can be said to have their legal rights well safeguarded. In other countries, with small centres of population and where lawyers have general practices, fairly effective rotation on a charitable basis has been worked out.

During the last decade, however, there has been greater reliance placed on legislative measures for the provision of legal aid, for, with notable exceptions, experience has shown that, in general, private effort cannot promise continuity or provide the wider scope that a State can make available to its people by way of legislation. Although there has been diversity of approach in the matter of granting legal aid, the problems that have had to be faced are not dissimilar, for exactly the same administrative and judicial difficulties have arisen wherever a system of legal aid has been proposed. Thus, there is the important problem of selection. A means test has to be devised so that the financially undeserving are precluded from availing themselves of legal assistance at the expense of the State, and this Bill prescribes such a means test. Another aspect of selection, Sir, is that people with baseless, frivolous or vexatious claims or defences should be debarred from assistance.

In the Bill now before the Assembly, it will be observed that in criminal matters a Judge of the Supreme Court or District Court, as the case may be, is required to certify that it is desirable, in the interests of justice, that legal aid should be provided to the applicant. In civil actions, the Director of Legal Aid is required to be satisfied, inter alia, that the applicant has reasonable grounds for taking, defending, continuing or being a party to any legal proceedings. With regard to criminal cases, objection has sometimes been raised that where the public defender is a public officer there would be two representatives of the State on both sides of criminal proceedings. This would be a serious objection if the same department were responsible for the conduct of both prosecution and defence. The legal aid organisation which the Bill envisages will not come under the Attorney-General's Ministry, which will continue to be responsible for the conduct of prosecutions, but it will be under an officer known as the Director of Legal Aid, whose department would be quite separate and distinct from that of the Attorney-General's. Further, Sir, it must be pointed out that it should not be the object of the State primarily to obtain convictions. The real aim of any judicial system is to arrive at the truth and to mete out justice. The Director of Legal Aid, by supplying the proper balance, will assist in achieving this aim.

Let us at this juncture, Sir, consider what legal aid facilities now exist in Singapore. Free legal representation is available only in the High Court and in none of the lower Courts. A person may apply to the High Court for legal aid in forma pauperis in all civil matters dealt with in the High Court, provided that he is not possessed of property (excluding wearing apparel and the subject matter of the proceedings) exceeding $300 (or in some special circum- stances $750) in value and the usual income from all sources of the applicant does not exceed $200 (or in special circumstances $300). In addition, free legal representation is provided where necessary to persons charged with murder. In so far as legal advice is concerned, Sir, a free service is provided by the Department of Social Welfare. This is a purely advice service and no representation in Court is provided.

It will therefore be seen that the present system of legal assistance to poor persons is altogether too limited to do more than touch the fringe of the need. The need for an improved legal aid service is long overdue and the Marshall Government can take justifiable pride in introducing this much needed social legislation. The Bill now under consideration indicates the lines along which we might well proceed. There may perhaps be need for modifications or amendments as a result of experience gained over a period, but as to the general proposition that the time is long overdue for a comprehensive legal aid service, there can be little disagreement. Much work and thought has gone into the drafting of the Bill. An officer of the Colonial Legal Service spent several weeks in the Public Solicitor's Office in Sydney, New South Wales, studying the legislation, practice and procedure there, and, in the main, this Bill, based on his recommendations, is an adaptation to local conditions of the New South Wales Legal Assistance Act, 1943-1947.

It would not be amiss if, at this stage, I were briefly to outline the main provisions of this Bill.

Clause 3, Sir, provides for the appointment of the Director of Legal Aid, one or more Deputy Directors and such number of Assistant Directors as is thought necessary. All persons so appointed are required to be qualified persons who will have the right of appearance in all Courts in Singapore.

With regard to clause 4, it is anticipated that the Director of Legal Aid and his assistants will not be in a position to deal with the volume of cases which flow into his office. Provision has therefore been made in this clause for panels of solicitors willing to investigate, report and give an opinion upon applications for the grant of legal aid and to act for persons receiving legal aid. Such solicitors would be entitled to fees agreed between themselves and the Director. I would add, Sir, that the success of this scheme depends a great deal on the co-operation of the Bar. Wherever there is a scheme for legal aid, there is bound to be a close relationship between the legal aid organisation and members of the Bar in that territory, both as individual advocates and as a collective body. It is of importance to the cause of legal aid that solicitors in private practice respond to the call. The profession has an ethical interest in seeing that no poor person suffers injustice through inability to obtain legal assistance or advice.

Part II of the Bill, Sir, makes provision for legal aid in criminal cases in the Supreme Court and in the District Courts but not in the Magistrates' Courts, for the expense would be considerable if legal aid in criminal matters were extended to the Magistrates' Courts. Provision is made for legal representation for criminal appeals in respect of any person convicted in the District Court who wishes to appeal to the High Court and in respect of any person convicted in the High Court who desires to appeal to the Court of Criminal Appeal. No specific means test is laid down in respect of legal aid under this Part of the Bill beyond the general requirement that such assistance should be extended only to persons "without adequate means". It is not considered desirable or necessary where a person's liberty may be at stake to have the rigid means test that has been devised for legal aid in civil actions. The Judge is, however, required to certify that it is desirable in the interests of justice that legal aid should be provided in any particular case.

Part III. Sir, provides for legal representation in civil actions in the Supreme Court and District Courts, and in the Magistrates' Courts in maintenance cases under the Married Women and Children (Maintenance) Ordinance, 1949. While legal aid is not extended to the Magistrates' Courts, an exception is made in respect of maintenance cases in those Courts as there is a very real need for legal representation in certain at least of the cases where wives claim maintenance from their husbands for themselves and for their children or where claims are made in respect of illegitimate children. Questions of marriage or paternity may be relevant and are often difficult to prove. The present position is that husbands frequently have solicitors whom they can better afford to retain appearing on their behalf, while wives invariably attempt to conduct their own cases, much to their disadvantage. Under the Bill, legal aid will, of course, be available to either party in maintenance proceedings. There is little doubt, Sir, that more wives than husbands will avail themselves of this service.

I have made reference, Sir, earlier to the problem of selection in accordance with the means of the applicant. It is never very easy to devise a fair and equitable means test when the Government provides a free service of any sort, but after much thought, we have, I think, devised a satisfactory means test. In order to be eligible for legal aid in civil actions, the applicant should not be possessed of or entitled to disposable capital exceeding $500 and his disposable income should not exceed $1,000 per annum, though the Director has discretionary power to grant legal aid where the applicant's disposable capital is between $500 and $3,500 and his disposable income is between $1,000 and $3,000, in which event the Director may require a contribution (the details of which are set out in clause 14) from the aided person. The terms "disposable capital" and "disposable income" are defined at clause 13.

Clause 16 stipulates that where legal aid is granted to more than one party in civil proceedings, the Director of Legal Aid is prohibited from acting for either party but shall assign solicitors to act from the panel.

Where a legal aid certificate is obtained by fraud or misrepresentation or where an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them, clause 19 provides that in such event such person may be ordered by the Court or Judge to pay the costs of both the Director or of the solicitor who acted for him, or the costs of the other party, or the costs of both the Director or such solicitor and such party.

The general position with regard to costs is detailed at clause 21. The expression "costs" includes counsel's fees. The Court is required to make in favour of the aided person the like order for costs as it would have made had the aided person been unaided except, of course, against another aided person. The aided person is liable to pay costs to the Director in certain specified circumstances. It may be objected that the Bill makes no provision for the payment of costs to a successful non-aided party, but in view of the expense this would involve, no other solution appears possible. Two points should, however, be borne in mind. Firstly, the Director is most unlikely to act other than with a full sense of responsibility and there would be no question of legal aid being granted except in proper cases; and, secondly, there is some measure of safeguard contained in clause 19 which enables costs to be recovered from an aided person who has acted improperly in bringing or defending any legal proceedings or in the conduct of them.

Part IV deals with the subject of legal advice which is made available to persons resident and present in Singapore. No specific means test is laid down for legal advice but an applicant is required to satisfy the Director that "he cannot afford to obtain it in the ordinary way". This, Sir, is also the language of the English Legal Aid and Advice Act, 1949, for, in respect of legal advice, it is felt that no more rigid test than this should be prescribed. Provision is made for payment to the Director of a nominal fee of $1 (or such other fee as may be prescribed) for such advice.

On the subject, Sir, of legal advice, it must be pointed out that while injustice may arise as a result of a poor man being unable to contest a case in Court, he may also be at a disadvantage when he wishes to ascertain his legal position and obtain advice and assistance short of Court proceedings. The provision of facilities for legal advice is one way of removing any sense of grievance and injustice which may rankle in the mind of a person who, because of his limited means, is unable to ascertain what his rights are, and it may be argued, Sir, that it is perhaps a good thing to condition the citizen to be as mindful of the legal pitfalls which may confront him as he is of his physical well-being.

The Bill, Sir, as a whole is arranged in five Parts and provision is made in clause 1 for the Governor to appoint different dates for the coming into force of the different Parts or provisions therein. This would enable the legal aid organisation to start modestly and to expand as the need arises. It would also enable us to control costs. As has been pointed out in the explanatory note to the Bill, an accurate estimate of the costs of operating the legal aid scheme is not possible, and if, in the initial stages, the provision of legal aid is limited to proceedings in the High Court, the costs are likely to be in the vicinity of $280,000 per annum. This is as near an estimate as can be made at the moment.

Sir, the Bar Committee raised objection to the powers conferred on the Minister by clause 28 to make regulations, and stated that such regulations as are intended to be made should be read together with the Bill so that all concerned may have the opportunity of considering and, if necessary, criticising them. Preparation of these regulations, Sir, has not yet been completed, but the Bar Committee have been assured that they will be consulted before any regulations are made. Moreover, under subclause (5) of clause 28, all such regulations must be laid before this Assembly and hon. Members can, if they so wish, move a resolution annulling any such regulations.

In conclusion, Sir, I would like to quote an extract from the introduction to Regional Heber Smith's "Justice and the Poor" wherein this passage occurs: "The very existence of free government depends upon making the machinery of justice so effective that the citizens of a democracy shall believe in its impartiality and fairness." This measure, Sir, by making the Courts accessible to the indigent person, by affording him skilled defence where necessary and by giving him legal advice where he is in doubt as to his legal rights, will, it is hoped, put an end to that oft-repeated jest: "The Courts of law, like the Ritz Hotel, are open to the rich and poor alike!"

Sir, I beg to move.

Question proposed.

The Chief Minister: If it please you, Sir, I am proud to have the privilege of seconding the motion for the Second Reading of this Bill. The institution of justice is one thing for which we can be unreservedly thankful to the colonial power, but it has one drawback, and that is that, in some measure, the poor people of the country have no opportunity either to understand their powers under it or to have full access to it; and as long ago as before the war, Sir, in 1939, I sought to obtain the assistance of the Bar at its annual meeting to propound some scheme for free legal aid. A few years ago, Sir, in order to shut me up, they appointed me as a one-man committee - and duly rejected my report! I am therefore very happy to be in a position today to assist, in some measure, in making possible a social service which I consider essential in every democratic country.

Sir, you have heard that this Bill is based to a large extent on the provisions of the New South Wales Legal Assistance Act. Sir, the late Attorney-General of New South Wales, Mr Martin, was good enough, when I was in Sydney many, many years ago, to give me real assistance in understanding their system, and I must confess that I have acquired a very great respect for the way in which the people of New South Wales look after those who are too poor, either for purposes of defence or for purposes of bringing action, to obtain legal assistance. Therefore, as soon as my Government took office, we sent, as you have heard my colleague the Minister for Labour and Welfare say, the Registrar of the Supreme Court, Mr Tan Thoon Lip, to study this system and on his advice and recommendations, and with his assistance, we now present a Bill to you which we hope will remedy an unhappy feature of our legal institution.

Sir, it would be churlish of me not to recognise the assistance that the Bar has, in fact, given by way of free legal aid to poor persons in the past; but that has been very, very limited in character, and I would also like to pay public thanks to 25 members of the Bar who voluntarily put themselves on my list in order to assist those who sought free legal aid at the Meet-the-public-sessions. That again, Sir, is not fully adequate to meet the needs of the country and but for the fact that the clan associations have done immense good in the past in arbitration, we would have had an outcry for free legal aid much earlier.

Sir, there is, I understand, to be a suggestion that this Bill be committed to a Select Committee. Now I wish the House to know that for months we have been in touch with the Bar Committee. We have received and given serious consideration to their views and, in fact, have incorporated some of them in the Bill before you, but no amount of further consideration would convince us that the remaining points with which we are at variance should, in fact, be accepted. There is, however, one far more serious reason why this Bill should not go to a Select Committee. You will notice, Sir, that we have not presented any Bills today for First Reading for subsequent attention, because we recognise that, as a result of the constitutional changes which will be taking place tomorrow, there will, in any event, be one of two courses taken by His Excellency the Governor. He will either prorogue this session or he will dissolve the Assembly. Sir, in either case, even in the case of prorogation, all unfinished business before the House will cease to exist. Therefore, any motion to commit this Bill to a Select Committee is a motion to kill it. This Bill seeks to help the poor of the country to some measure of assistance from the Bar and from the Government where they need assistance; and particularly assistance is needed when it is recognised that the large mass of the people of Singapore are not literate in the English language, and consequently do not know their rights under our system of justice. I therefore ask hon. Members to bear this in mind and to give their full support for a measure in which I think we can all take pride. It may well be that it will require amendments in the light of experience, but let us not kill an effort to which a great deal of energy, thought and attention has been given. Sir, I do plead for the general assent of this House to this provision and that there should not be, in respect of a matter so nearly touching the welfare of the people, any Party approach.

Mr Lee Kuan Yew: Mr Speaker, Sir, my Party supports the principle of this Bill. I do not think anybody would seek to take away the credit which is owing to the present Government and its head for having introduced this Bill. The only difficulty is this. I am a member, Sir, of the Committee which is the governing body of advocates and solicitors in this Colony. As the Minister for Labour himself has said, to make this Bill work it requires the unstinted co-operation of the profession. He has said that the profession has expressed certain doubts as to the advisability of giving the Minister unlimited powers to make regulations under clause 28 of the Bill. He also knows that the profession has expressed certain views as to the advisability of making champerty by the Crown legal. It is one of the basic principles of English law that anybody who aids somebody else to institute proceedings where he has no interest is, in fact, committing a tort. Now we are going to introduce by this Bill a principle by which the Crown, or through its organisation the Legal Aid Department, would be able to aid a litigant in either prosecuting or defending a suit without having to be penalised subsequently in costs. That raises a question of principle.

I am aware of the point that the Chief Minister has made, that if this Bill is committed to a Select Committee, then it lapses. I would ask the mover of the Second Reading of this Bill to consider this - would it not be advisable to hold up the coming into operation of this Bill, if it is passed today through all its three stages, until such time as the profession has been fully consulted, has had time to consider the full implications of it, and has had time to make its views known to the Government? But politically we support the Bill.

Mr Lim Choon Mong (Serangoon): Mr Speaker, Sir, we welcome this Bill. As an ordinary layman not knowing much about the law and mixing up with people of the poorer classes, I have always come across cases of people who were wronged but who did not dare to take up legal proceedings for fear of incurring payment of costs if their cases should be lost. In instances like this, I always feel that, although there is justice in law on paper, in effect, in quite a number of instances it is the money that counts.

On the point raised by the Member for Tanjong Pagar (Mr Lee Kuan Yew) about the Minister being empowered to make regulations as to the costs, I feel that the legal profession has been doing very well indeed. Certified accounts sometimes show that there might be an income of about $11,500 per month! It might even be more! I think, if we are going to create a system whereby wealth is going to be distributed more fairly, such incomes should be scaled down, and a professional man should earn, say, roughly five or six times as much as a labourer and no more. I think that is the system that is prevailing in societies that have gone a long way towards socialism.

In London, as far as I could learn from my first visit, I think a professional man earns no more than this, and the system in Singapore should tend towards that level. As a matter of good gesture - and there are so many lawyers in this House - it should be good to start with oneself, because then it would really show sincerity in the ideals of creating a better social system. I always hate the idea of wanting to be generous with other people's money, but I will always welcome people who begin with themselves, especially when it is a matter of disadvantage to themselves. Sir, I welcome the Bill.

Mr M. P. D. Nair (Seletar): Sir, I feel that it is as important to know the law as it is to have access to the Courts of law. From my experience, Sir, I believe the reason why there are so many cases in Court is due to the fact that many people do not understand the law. The legal advice system incorporated in the Bill will be more effective if, by an administrative way, the legal aid scheme is decentralised and more advisory centres established, particularly in the rural areas. This will obviate the necessity of people having to travel long distances to the headquarters of the Social Welfare Department at Havelock Road. I hope and believe, Sir, that the Minister will favourably consider my suggestion of decentralising the Legal Aid Department to reach the people.

Secondly, Sir, most of the benefits envisaged in this Bill will be brought to nought if there is no corresponding decentralisation of the Courts of this Colony. I feel sure that the Government will also consider the question of decentralising the Courts. I am aware that in the past attempts have been made towards this end, but I do not know what progress has been made. Many people in all parts of Singapore island do visit the Courts daily, and I may be voicing the feelings of many people who have not the money even to come to town to seek legal assistance. I do hope. Sir, that in this endeavour the Bar Committee will be with the Government as well.

Mr Lim Yew Hock rose -

Mr Speaker: Mr Minister, in reply?

Mr Lim Yew Hock: Yes, Sir. Mr Speaker, Sir, in reply to the Member for Tanjong Pagar, when he spoke as the leader of his Party and said that his Party supports the principle of this Bill, I wish to thank him. The hon. Member, Sir, has also expressed some misgivings as a member of the Bar Committee. I would like to assure him that he need not have such misgivings because I have earlier stated in my speech that the Bar Committee will be consulted before any regulations are made, and, Sir, this Ordinance cannot come into force until the regulations are made. I repeat, Sir, the assurance given, that the Bar Committee will be consulted before any regulations are made.

Question put, and agreed to.

Bill accordingly read a Second time.