LEGAL PROFESSION (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, the Bill has four main objectives. Firstly, it amends the provision on admission of QCs (Queen's Counsels) to provide some criteria on which applications can be decided. Secondly, it removes the restriction in the Act which prevents a retired judge from practising law. Thirdly, it enables the Law Society to introduce a compulsory professional indemnity scheme. Fourthly, it makes the Legal Service more attractive by removing provisions which in some way discriminate against officers in the Legal Service. Limited right to practise for former Judges

If I may touch, Sir, on the first point about the limited right to practise for former Judges. I think Members will know that there has been publicity recently to the importance of appointing more judges to reduce the backlog of cases in our Courts. During the parliamentary debate on the Legal Profession (Amendment) Bill in 1989, I informed the House that Government was reviewing the provision which disqualifies a former judge of the Supreme Court who has served on the Bench for three years or more from applying for a practising certificate. That provision follows the settled convention in Britain, Malaysia and other Commonwealth countries that former judges do not re-appear as advocates in the courts over which they had presided.

Sir, while there may be good reasons why a retired judge ought not to resume practice in the Courts before their former colleagues on the Bench, I think to exclude them from the practice of the law altogether would be too wide a restriction. I agree that it would not be proper for a former judge to appear before his ex-colleagues on the Bench as he may then appear to have an undue advantage over other lawyers, but this restriction should not be so wide as to remove him altogether from the practice of the law. Such a wide prohibition is not only not logical but also discourages able lawyers from accepting appointments as judges.

There should therefore be no objections to allowing a former judge practising only as a solicitor, without appearing in the Courts.

Therefore, Clause 6 of the amendment Bill seeks to amend section 26 of the Legal Profession Act to allow a former judge to apply for a practising certificate enabling him to practise as a solicitor but without the right of audience in any Singapore court.

Queen's Counsel

If I may turn to the question of Queen's Counsel. Members will recall the debate we had on this matter last year during the Committee of Supply. The Chairman of the GPC for Home Affairs and Law, Dr Arthur Beng, noted the increasing tendency to use QCs for cases which are not complex and he expressed the fear that such a trend could impede specialisation by local lawyers.

Mr Davinder Singh believed that QCs continue to play a useful role in Singapore but he felt that there must be "stricter guidelines" to limit admissions of QCs "to highly complex matters".

Mr Shanmugam on his part also felt that QCs provide a useful service and we should not shut the door on them altogether. But he felt that the present system should be reviewed to "tighten the rules" so as to ensure that "only in really necessary cases ... QCs are admitted".

In response to them, I said that the rationale for admitting QCs continued to be valid and the practice should not be stopped. But I also added the following that:

" ... the legislative policy is very clear. They are obviously to be admitted for cases of complexity or difficulty where the needed skills or experience or the specialist knowledge is not readily available here. To put it in a different way, Parliament never envisaged or contemplated that they should be admitted for the routine or the ordinary or the simple case which can easily be handled by Singapore laywers."

I also said that Government will give careful consideration to the kind of amendment that should be made and I will consult the Judiciary and the Law Society.

Sir, the existing section 20 of the Legal Profession Act allows QCs to be admitted on an ad hoc basis. The discretion is vested in the Courts. The problem is that the existing provision does not give any criterion or guidance to the Courts except merely to state that the QC must have "special qualifications or experience for the purpose of the case".

What the proposed amendment before the House seeks to do is to meet this gap by adding a criterion that the Court must be satisfied that the case is one of "sufficient difficulty and complexity" to warrant a QC being admitted. It is important to note that this amendment leaves the decision to the Courts. This is underscored by the fact that the amendment also states that the Court shall have "regard to the circumstances of the case".

Sir, this amendment better reflects the original intent of the legislature while, at the same time, preserving the exercise of discretion by the Courts.

We have taken some time to craft this amendment because Government considers QCs to perform a useful role in our efforts to be the leading commercial and financial sector. A study done for me by two members of the academic staff of the Faculty of Law of the National University of Singapore on admission of QCs for the period 1985 to 1989 showed that commercial law cases formed the majority, some 60%, of cases where QCs were admitted. It is desirable that they continue to perform this role. Therefore, any amendment which we craft to ensure that there is no abuse and that QCs are not admitted for the very simple, routine or uncomplicated cases, must not shut the door to admission of QCs in those areas where solicitors are especially needed, particularly in banking and commercial law sectors.

Obviously, it will take some time to develop a significant pool of local litigation lawyers who can service the requirements of Singapore as an international financial and commercial centre. When we will achieve that is difficult to predict. In the meantime, however, we should not deprive our financial and commercial centre of the assistance of QCs. The proposed amendment will allow the Courts to continue to liberally admit QCs for the important and complex commercial and banking cases.

The Government has consulted the Judiciary on the amendment. I have also discussed this amendment with the Attorney-General and the lawyers, including the President of the Law Society. This approach is acceptable to them.

Professional Idemnity

If I may now turn to the question of professional indemnity. The amendment is proposed by the Law Society, and it is to protect the public generally and clients of lawyers in particular. The amendment empowers the Council of the Law Society to establish a compulsory scheme for professional indemnity for all practising lawyers. Where a law firm is negligent, the client will thus be assured of some financial compensation regardless of the firm's financial position. The Government agrees with this proposal and I would like to commend the Law Society for its initiative. Clause 7 will, therefore, introduce a new section 75A to give legislative basis for such a scheme. In order to give the Law Society some flexibility, the scheme can either be in the form of insurance or a fund. The provision will enable the Council of the Law Society to work out the details in rules to be made by the Council but subject to the approval of the Chief Justice. This provision, I might add, is modelled on a similar provision in the United Kingdom Solicitors Act 1974.

Shortening of Pupillage for Legal Officers

If I may turn to the shortening of pupillage for legal officers, Sir, it is important to the administration of justice and the efficient workings of Government that the Legal Service continues to attract and retain some of the best legal minds from the law graduates each year. Given the wide disparity in remuneration obtaining in private practice compared to the Legal Service, it is already difficult to attract good graduates to the Legal Service. But the problem is compounded by some provisions in the Act which discriminate against legal officers when compared to their counterparts in the private practice. These provisions may have been relevant in the earlier days, but now when the Legal Service has developed considerably, they would have to be reviewed.

Clause 2 seeks to amend section 13 of the Legal Profession Act to reduce the period of pupillage from three years to six months for legal officers in the Legal Service. If I may explain. In private practice, the period of pupillage is only six months which means that six months' experience in the Legal Service is equated to only one month of pupillage in private practice. Also, the seniority of legal officers in the Bar will always be two and a half years behind their contemporaries in private practice. With the diversity of legal work and tutelage of experienced senior legal officers now available in the Legal Service, this difference, in my view, is no longer justified.

Sir, this amendment will boost the standing and morale of the Legal Service insofar as it removes the apparent discrimination against experience in the Legal Service.

Qualification for Pupil Master

If I may turn to the qualification for pupil master. Clause 3 will amend section 14 of the Act to allow a solicitor's period of service as a legal officer and conversely a legal officer's period of experience in private practice to be taken into account for him to qualify as a pupil master.

This amendment will remove the perceived discrimination against experience in the Legal Service as not counting for such eligibility. The present situation is such that a former senior legal officer (who, if I may add, might also be conferred the title of Senior Counsel) cannot be a pupil master until after five years in private practice. Really, this is not logical as that officer was qualified to be a pupil master to legal officers when he was in the Legal Service. It deprives fresh law graduates of the benefits of the skills and experience of former legal officers. This amendment is also consistent with section 30 of the Act relating to Senior Counsel. In determining a lawyer's eligibility for appointment as Senior Counsel, section 30 recognises his experience in the Legal Service.

Conveyancing in Housing Developments

Finally, Sir, the amendment concerning conveyancing in housing developments. This final amendment is also based on a proposal from the Law Society which is related to professional ethics. The amendment is to disallow a solicitor while acting for the developer in a conveyancing matter from also acting for the purchasers of other units in the same housing development.

Sir, the Act presently covers the case where a solicitor acts for both the developer of a housing development and the purchaser in the sale of the same unit. But it fails to cover the case where the solicitor acts for only the developer in the sale of one unit and only for the purchaser in the sale of another unit but in the same housing development.

To remove this lacuna, clause 8 will expand section 79(1) of the Act to incorporate the Law Society's proposal. I agree with the Law Society that this is undesirable as it could lead to a situation where conflict of interests could arise. It could arise, for example, where the solicitor by acting for the developer is privy to confidential information which may adversely affect the interests of the purchasers for whom he is also acting but in another conveyancing transaction in the same housing development, albeit two different units. The solicitor would thus be placed in a very invidious position where, whichever way he acts, he will be in breach of his duty to either one or the other of his two clients.

Sir, I beg to move.

Question proposed.

Mr Davinder Singh (Toa Payoh GRC): Sir, I support the Bill and I would like to declare my interest as a lawyer.

I am very happy to note that the Minister has taken into account the views of the Backbenchers in connection with the admission of QCs. It is very important that we do not close the door on the admission of silk from London or elsewhere for the reason, as the Minister has stated, that there are many cases in Singapore. Which still require their expertise. Of course, there will come some point in the future where the door will have to be closed but that only in circumstances where we are satisfied that our local talent pool has grown to a size which is sufficient to service the requirements of the local community.

What is also very significant, in my view, of what the Minister has just said is that, apart from taking into account the views of Backbenchers, the Minister has also taken into account the views of the Law Society. I commend that, because it is my view and I would respectfully suggest that in all situations where policies are being formulated and Bills drawn up which affect, directly or indirectly, the interests of professional bodies, then their views should be sought, so that they can offer ideas as to both the policies as well as to the crafting of the Bills. These are the people whose views are most important because they have their ears to the ground and they are the most experienced in that particular field of activity. It is not necessary that you accept what they say but the opportunity ought to be given to them to air their views and we should, in Parliament, be in a position to consider those views and, if we do not accept them, to say why we do not accept them. This will fortify or reinforce what we are doing in the way of consensual Government as well as give everyone affected by any policy the feeling that his views and his legitimate concerns have been taken into account.

I support the Bill.

Dr Lee Siew-Choh: Mr Speaker, Sir, I have spoken to a few lawyers and I understand that the changes proposed in the amendments are generally welcome.

As for myself, I am particularly happy, Sir, to see the introduction of a new section 75A which provides for "a compulsory scheme for professional indemnity against civil claims in connection with the law practice of all advocates and solicitors", as stated in the Explanatory Statement. Sir, now and again we would read in the press, or hear of cases, where lawyers have not lived up to the trust and confidence placed in them by trustful clients. A few lawyers have been charged in court and been punished. But, unfortunately, some trustful clients have suffered considerable losses, as the guilty lawyers usually do not have enough funds to make full restitution, and the Law Society has not been able to help very much.

With the new amendments, clients who happen to consult the wrong lawyers will not have to bear similar financial losses in future. That is all to the good for everyone and also good for the legal profession as a whole.

Another thing I wish to comment on is clause 4, amendment of section 21, which restricts the ad hoc admission of QCs to appear in a Singapore court. While appreciating what the Minister has said on this, I feel that where it is a political case or where a politician is involved in litigation with Government officials or government politicians, complicated or otherwise, it is only fair that there should be no restriction whatsoever to the admission of QCs. This suggestion is not a slur on the Singapore Bar. Neither is it contempt of court as the Straits Times, editorial alleges. If that should be so, then the Singapore Bar itself would have to bear its share of responsibility and blame.

I myself, Sir, have had the unpleasant experience of difficulties getting a Singapore lawyer to plead my case, when I had to defend myself in legal suits brought against me by the former Prime Minister. The reason is not difficult to fathom. Local lawyers in general seem to have a great fear of the PAP Government, and this fear will not be easily got rid of. For those who can afford it, and who wish to be defended by a QC (since a QC has nothing to fear from a PAP Government), it is only fair that they be allowed to engage QCs in political cases. Though the court has discretion in the matter, I feel that the Bill should also make some provisions for that.

Finally, the Bill has provisions to amend section 26 of the principal Act to allow ex-High Court judges to practise as solicitors. The Minister has explained why. The reason given is that the amendment will attract senior lawyers to accept appointments to the Bench. I wish to know, Sir, from the Minister how many senior lawyers have refused appointments unless they would be allowed to practise again. I would like to know also, Sir, how many of the judges, who have retired, have asked to be allowed to practise. I understand that there are a few judges who have retired but I have never heard it being suggested that they are keen to go into private practice. Why then is it necessary to bring this amendment in? High Court judges receive pensions when they retire, and their pensions are by no means small sums. I wish to believe that the High Court judges do not become judges in the hope that they can have some material rewards. This amendment seeks to somewhat commercialise our legal system, and I feel that is wrong.

Dr Arthur Beng Kian Lam (Fengshan): Mr Speaker, Sir, in previous debates in this House, the GPC for Law and Home Affairs had highlighted the issues of the role of QCs and had discussed with the Minister regarding the shortage of Judges on the Bench. I will not repeat the arguments.

The GPC supports the amendments. The move to allow retired judges to practise as a solicitor will indeed remove one major obstacle. Having talked to members of my resource panel, I am convinced that this amendment will be welcomed.

Sir, for a senior and successful lawyer to accept a position on the Bench is a major decision. There will be a change not only in practice but also in the person's whole personal lifestyle when he accepts a position on the Bench. Thus, to allow a retired judge to practise again, albeit in a restricted capacity as a solicitor, is correct and I feel will encourage more of the senior and successful lawyers to accept positions on the Bench. Furthermore, I agree with the Minister that it will inject a greater wealth of experience and wisdom back to the private sector.

Sir, I have no doubt that the amendment regarding QCs will allow for recognition of our local lawyers' ability and enhance the development of litigation. It will also allow for specialisation in the legal profession. I am optimistic that this amendment will be a catalyst to specialisation and I am confident that our lawyers will rise to the occasion. On the other hand, they have not forgotten their client's rights. The client is protected in that in complex and difficult cases, clients will be allowed by the court to be represented by a QC.

Sir, the GPC supports the amendments.

Prof. Jayakumar: Sir, I thank the Members who have spoken. The Chairman of the GPC supports the amendments and so does Mr Davinder Singh. I think Dr Lee Siew-Choh also supports the amendments although I believe he has reservations on the amendment on QCs. So I shall just touch on the two points raised by Dr Lee Siew-Choh.

First, his reservations on QCs. It would appear that he wants an amendment written in for cases wherever it involves a politician. This of course is absurd because such an amendment would be totally unwarranted. Let us not forget that very few countries in the world have a policy of allowing QCs whereby lawyers outside the legal system could come in and practise. We are one of the very few countries and we do it because we consider it is useful in our national interest, particularly in our efforts to develop Singapore as a banking and financial centre. But they must be admitted not for any routine simple case, because we have our own legal profession.

If we take the NCMP's thesis to its logical conclusion, it means that in any case where a politician is involved, where he is prosecuted for a breach of the law, then automatically a QC should be allowed, even if it is a traffic summons regardless of the complexity and difficulty of the case. Our point is that whatever situation for which a QC is sought to be admitted, that case must have sufficient difficulty and complexity to warrant a QC being admitted. If it cannot be shown to the courts that there is this element of complexity and difficulty, then there is no need for a QC to be admitted. I think it is a very reasonable proposition.

Dr Lee Siew-Choh's thesis implies that politicians have a certain amount of special immunity or basis for special treatment. There is no basis for that. The question is: either he has breached the law or he has not breached the law. If he has breached the law, then a prosecution would follow. If it is a civil case, if a politician is a plaintiff, either he has a good case in law or he does not have a good case in law. The law is well settled. It is applied by the courts.

If Dr Lee Siew-Choh has had difficulties in getting representation or getting any Singapore lawyer, his conclusion is not necessarily the correct conclusion. The conclusion could also be that the lawyers he approached concluded that he had a pitiful case and they did not want to take on such a case and he had no case in law at all. So his conclusion does not follow. So I cannot accept the suggested amendment or variation he wants to make on QCs.

As regards retired judges, I disagree with him that the proposed amendment would commercialise the judicial system in so far as it allows a retired judge to go back and practise law. Whether or not a retired judge is going to make a lot of money by going back to law in addition to his pension is not the point. The point is this. Let us say a person has retired as a judge after many years on the Bench. His life has been the law. Everyday he has been dealing with the law. Then he retires. If he is still physically fit, mentally sound, not senile, and he wants to go back to the only area in which he has been working in his adult life, why are we preventing him? It does not make sense that we say, "Look, you cannot go back and practise law." Most judges have a love for the law as an intellectual discipline and as a professional vocation. I think most retired judges would like to go back to the law and practise it. Fair enough, we say that there can be a possible conflict of interest if he were to appear in the courts and argue cases before his brother judges. So that restriction should continue. But it is perfectly reasonable to allow a judge to go back to the practice of law.

How many retired judges have actually wanted to go back? I know of at least two retired judges who have personally mentioned to me their sorrow and unhappiness that they cannot go back and dabble in the law, the field that they love, because of this restriction. There may be many more. The former Prime Minister has had greater experience and contacts with lawyers than I, but I know of two judges. And how many senior lawyers actually have been put off? I know of one recent appointment and he was most reluctant to take on the appointment. He is a very sound and able senior lawyer who was finally persuaded to take on the appointment. His reluctance was that he was not sure whether this is something he wants to do for the rest of his working life. He was prepared to consider it. He was prepared to give it a shot. But if it does not work out, if it is not what he wants to do, he would want to return to the law. If he has served three years as a judge, the law says, "No, you cannot go back." Why do we want to discourage him and other such able lawyers from considering judgeship? It does not make sense. I have met many others, and the Chairman of the GPC has also met other senior members of the Bar, who have told us that if we do not make an amendment along these lines, they would not even begin to consider the prospect of accepting judgeships. So it is a real problem. It is not a figment of our imagination.

Sir, I think I have answered both questions.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar].

Bill considered in Committee; reported without amendment; read a Third time and passed.