LEGAL AID AND ADVICE 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, this Bill seeks to repeal and re-enact the provisions of the Legal Aid and Advice Act (Chapter 160 of the 1985 Revised Edition). The main objective of the Bill is to update the means test for eligibility for legal aid without increasing the manpower resources available in the Legal Aid Bureau. The Bill also deletes Part II of the Act on legal aid in criminal cases which has never been brought into operation.

Let me now highlight the main changes to the Act.

Firstly, the Bill revises the existing requirements as to the means of an applicant for legal aid to bring it more in tune with present day monetary values.

Secondly, the Bill empowers the Minister to authorise the Director of Legal Aid to grant legal aid to any applicant who does not qualify for legal aid if it is in the public interest that legal aid be granted to the applicant. The reason for this provision is to provide for exceptional cases where in the public interest, it may be necessary for the Minister to authorise the Director to give legal aid to a group of persons, some of whom may not qualify within the strict provisions of the Act such as, for example, the victims of the Spyros disaster.

Thirdly, the Bill clarifies that legal aid is available only to citizens and permanent residents. Currently, the Act does not state the category of persons eligible for legal aid. The administrative practice has been to give legal aid to citizens and permanent residents which is right, as legal aid involves the allocation of public monies.

Fourthly, the Bill increases the fine for the offence of giving a false statement in connection with an application for legal aid. This is because we should take a serious view of those who abuse or misuse legal aid facilities.

Fifthly, Part II of the existing Act which has never been brought into operation will be deleted. This is because the policy of the Government is not to grant legal aid in criminal cases except for cases involving capital punishment.

Sixthly, the Bill empowers the Minister to amend the Second Schedule which sets out the means test by way of Regulations through notification in the Gazette.

Sir, I hope that the updating of the means test in this amending legislation will be welcomed by Members of this House, because several Members, I recall, like Dr Ho Tat Kin, Mr Chay Wai Chuen, Mr Eugene Yap and Dr Arthur Beng, to name a few, have in recent years urged me to review the means test which has not been changed for a long time.

The present definitions of "disposable capital" and "disposable income" have also been fine-tuned to take into account present day realities.

Sir, let me highlight the main changes to the means test. Firstly, the disposable capital and income limits for eligibility for legal aid which are presently $3,500 and $3,000 per annum respectively have been increased to $7,000 in each case.

Secondly, the disposable capital and disposable income limits of persons who do not have to make any contribution which are now $500 and $1,000 per annum respectively have been changed to $2,000 in each case.

Thirdly, the Bill changes the definitions of "disposable capital" and "disposable income" so as to allow more deductions. For example, in calculating disposable capital, we will exclude an HDB flat owned by the applicant or any other dwelling house with an annual value of not more than $7,710. We also exclude savings of up to $30,000 if he is aged 60 and above and we also exclude the applicant's CPF monies.

Mr Speaker, Sir, over the last six years from 1989 to 1994, the number of cases registered with the Legal Aid Bureau has stabilised at between 6,000 and 7,000 cases per year. In contrast, during the early 80s, the number of cases ranged from 8,000 to 10,000 cases. More than half of the cases concern matrimonial matters. Other types of cases include claims in contract and tort, matters relating to tenancy, probate, deed poll, adoption, statutory declarations, testamentary dispositions and powers of attorney.

Sir, a projection has been made of the implications on the workload of the Bureau as a result of the proposed revised means test. In revising the disposable income criteria to the new limits, the Bureau anticipates an increase of about 1,200 legal aid cases a year, or a 30% increase. We believe that these additional cases can be managed by the Bureau with its existing complement of staff and resources.

Sir, I beg to move.

Question proposed.

Assoc. Prof. Walter Woon: Sir, I support this Bill.

I would just like to make a brief comment on the question of criminal legal aid. In the old Legal Aid and Advice Act, Part II, as the Minister has said, was never brought into force. It is well and good to give legal aid to civil litigants. The danger, of course, of giving legal aid in civil litigation type situations is that sometimes one encourages frivolous litigation. And when we are talking about civil litigation, it is a question of money. But in the case of criminal prosecutions, very often, a poor person cannot afford a lawyer. Here, it is not just money at stake. The person could go to jail. In capital cases, we have assigned counsel. But in all other cases, the only legal aid that poor people can get for criminal cases is the Criminal Legal Aid Scheme run by the Law Society of Singapore. This is financed entirely, I think, out of the generosity of members of the legal profession. It seems paradoxical that in something like civil legal aid, the Government should provide funds. But in matters where a person could actually lose his livelihood, lose his freedom, there is no such provision of funds.

May I ask the Minister, who said that it is not the Government's policy to provide criminal legal aid, to reconsider this, to at least look into the possibility of some sort of criminal legal aid for poor people. These are the people who need it most. Millionaires can buy legal advice by the ton, gold-plated. They can have a media circus, as we have seen in other countries. It is the poor who need criminal legal aid most of all. And I do not think in this kind of situation that leaving it to private enterprise is an entirely satisfactory matter.

With those comments, I support the Bill.

Dr Arthur Beng Kian Lam (Bedok GRC): Mr Speaker, Sir, I rise to speak in support of the Bill.

Sir, this Bill is long awaited and timely. The current means test is unrealistic in today's context. The upward revision is therefore welcomed.

Sir, legal costs have risen. I see this Bill as another step taken by the Government to complement the measures taken by the Judiciary to make justice more affordable and available to Singaporeans. Other innovations include enhancing the jurisdiction of the Small Claims Tribunal, encouraging Alternative Dispute Resolution processes, setting up the Family Court and instituting mediation processes in our court system. The Law Society of Singapore, as already mentioned by Assoc. Prof. Woon, has also done its part by giving pro bono criminal legal aid and by holding talks and exhibitions on the law. These measures on the part of Government, Judiciary and the Law Society are laudable. I am sure Singaporeans are appreciative of this trend.

Sir, this Bill will be a great boon to Singaporeans who may require the assistance of a lawyer, particularly in non-commercial matters such as divorce and probate. Over the years, the Legal Aid Bureau has performed good service to help lower income Singaporeans tide over difficult times. Raising the means test will enable the Bureau to benefit more Singaporeans in distress. And I am glad to note that the Bureau will be able to cope with the increased workload. I hope that the Government will continue to track the cost of living in Singapore, particularly in regard to legal fees, and revise the means test accordingly should the need arise.

Sir, I support the move to delete the part of the Act on provision by Government of criminal legal aid. It is inconsistent, in principle, for the Government to both prosecute and defend the same accused person. I see this as paradoxical.

I understand that the Law Society of Singapore runs a well-regarded and successful Criminal Legal Aid Scheme to provide criminal legal aid to accused persons in non-capital cases. What are the types of cases in which they assist? It ranges from the Arms and Explosives Act, the Enlistment Act, Public Nuisance Act and the Misuse of Drugs Act. It covers a wide range and I think that the people who cannot afford will benefit from this Criminal Legal Aid Scheme run by the Law Society. And I am sure that they are assured that they will get good legal counsel.

I believe that this is the way to go - an effective partnership where Government provides defence counsel in capital cases and the legal community volunteers its services in non-capital cases, which is to be applauded.

Mr Speaker, Sir, in closing, may I say that our belief in the legal-criminal-justice system must remain unshakable. Indeed, it was only in the last sitting of this House that we reaffirmed this. This means that we believe that the Police will investigate thoroughly, without fear or favour, before a recommendation is made to proceed; that the Attorney-General's Chambers must be convinced that there is a case before a person is brought to court. The issue of legal aid for criminal cases must be seen in this setting and not in isolation.

Mr Loh Meng See (Kampong Glam GRC): Mr Speaker, Sir, I beg to differ from Assoc. Prof. Walter Woon's position with regard to the provision of legal aid for criminal cases. It is not wise for the Government to provide legal assistance for criminal cases. I support the position of Dr Arthur Beng. I think our resources are very limited. We should give all the resources available to the civil legal aid cases.

Prof. Jayakumar: Sir, I thank the Members who have spoken in support of the Bill.

I realise that Assoc. Prof. Walter Woon's point can be argued with some persuasion. But as I said, the Government's policy is to provide legal aid to criminal cases only in capital offences. The reasoning for this policy is that it is very similar to the points mentioned by Dr Arthur Beng.

To elaborate, the State spends a lot of resources in maintaining as best as possible a first-class, top-rate law enforcement machinery - the Police, the Central Narcotics Bureau, the Commercial Affairs Department and so on. It also invests heavily in an excellent legal service with very good legal officers handling prosecutions, who sieve and vet all the police investigation papers. Their job is to investigate offences when there is evidence to prosecute, when accused persons are brought to book, only after thorough and careful process.

Why are they prosecuted? They are prosecuted in the public interest and the State expends these monies in the public interest and in order to protect the law abiding majority. Therefore, I agree with Dr Arthur Beng that it is paradoxical. It is incongruous and inconsistent that public funds should be used to defend an accused person which the State has decided ought to be charged in court and use public funds at the same time to get him off. The exception is where life is involved and for capital cases, counsel is assigned.

I also agree that the legal profession itself has a role to play here. The legal profession has grown since the days the Legal Aid Act was enacted in the 1950s. It is larger today than what it was in the 1950s.

The Legal Profession Act states that one of the purposes of the Law Society is:

`to make provision for or assist in the promotion of a scheme whereby impecunious persons on non-capital charges are represented by advocates.'

So Parliament's intent is, to some extent, very clear that the legal profession must fulfil this social and public role through the Law Society.

I would like to take this opportunity really to commend the Law Society for running a very well established criminal legal aid system since 1985. I know many lawyers who give of their time voluntarily and I want to congratulate the Law Society on its programme which is in the right direction. I have told the President of the Law Society that I will do my best to give support to him and his council in their commendable efforts on the Criminal Legal Aid System, provided it does not involve State funds. I will discuss with the Attorney-General how best we can give such support.

Bill considered in Committee.

[Mr Speaker in the Chair]

Clauses 1 to 5 inclusive ordered to stand part of the Bill.

Clause 6 -

Assoc. Prof. Walter Woon: Sir, I beg to move,

In page 5, line 1, to leave out "section 8(2)(b)" and insert "sections 8(2)(b) and 9(1)".

The amendment that I have proposed is a technical amendment. If Members would look at clause 8(2)(b), in order for a person to qualify for legal aid, the Director of Legal Aid must be satisfied that the applicant does not possess more than the disposable capital or the disposable income stated in the Second Schedule; basically, $7,000 per annum disposable income and $7,000 disposable capital.

Clause 6(3)(b) says that when you look at clause 8(2)(b) and the applicant is an unmarried infant and the guardian is a relative, you combine the two. That presumably is to cover the situation where you have an infant (which, I presume, means a person under the age of 21) whose parents may be rich, but who himself has no income and no disposable capital. That is to plug the obvious loophole where a person goes for legal aid using his child, who may have been injured in some way, refuses to pay because if we did not have that, his income would not be aggregated with the child's.

Now, we look at clause 9. In clause 9, if the applicant's disposable income or disposable capital exceeds a certain amount, a contribution can be levied. Here is where the contradiction arises. When we look at the application, we aggregate the guardian's income and capital with the infant's. But when we look at the contribution, we do not. So we might get a situation where legal aid is granted to someone under clause 8(b) but no contribution can be levied, because the infant himself has no income.

Prof. Jayakumar has referred to the new provision in clause 8(4) where the Minister can approve legal aid to a person who falls outside the strict criteria. So we may get a situation where legal aid has been approved under clause 8(4), but because of the way clause 9 is phrased, no contribution is payable either. It is for this reason that I have suggested the amendment that stands in my name to include a reference to clause 9(1) in clause 3(b), so that when it comes to assessment of contribution, it is possible to levy a contribution in the case of a guardian or in the case where we have a clause 8(4) authorization by the Minister.

Prof. Jayakumar: Sir, on Assoc. Prof. Walter Woon's first amendment, I think he has a point. I believe his amendment would be an improvement to the Bill and I have no difficulty in accepting it.

Amendment agreed to.

Assoc. Prof. Walter Woon: Sir, I beg to move,

In page 5, line 8, to leave out from "relative" to the end of line 13 and insert "includes in the case of an adopted child his adoptive parents.".

Sir, this amendment to clause 8 is again a technical one. The question is: what is the definition of "relative"? In clause 6(3)(b), one aggregates the income of the relative together with that of the infant. "Relative" is defined restrictively in clause 6(4) to mean, in the case of a legitimate child, his parents; in the case of an adopted child, an adopting parent; and in the case of an illegitimate child, the mother. The way that it has been phrased, "relative" excludes all other relatives. So we might get a situation where the child is being looked after by an uncle or a grandparent or an aunt or some other more distant relatives, not necessarily the mother. We might get the situation where the illegitimate child is being looked after by the father. In those situations, we might find that the relative actually does have the means, but his income and disposable capital are not aggregated because of the restrictive definition of "relative". So taken to an extreme, we have a child who is being cared for by a rich millionaire grandparent. But because grandparent is not a relative, the grandparent's income and disposable capital are not considered either on the application for legal aid or on the assessment of contribution. The Legal Aid Bureau could grant legal aid in a situation like that, notwithstanding that the grandparent can well afford to pay for the services of the Legal Aid Bureau or of a private lawyer.

It is to cover this kind of situation that I have suggested the amendment. In other words, instead of making it a restrictive definition by saying "relative means", I have suggested that the clause be changed to say "relative includes". The word "includes" implies one uses the normal dictionary understanding of "relative". The only thing that needs to be defined clearly is who is a "relative" when we are talking about adopted children. Because there could be an argument about whether or not the adoptive parents are deemed to be relatives since they are not relatives by blood and would not be relatives in the normal sense in an adoption case.

The point of my amendment is that we take out the restrictive definition. We say "relative" includes in the case of an adopted child his adoptive parents, to make it clear that his adoptive parents are relatives, but leave the term "relative" to its normal dictionary meaning.

Prof. Jayakumar: Assoc. Prof. Walter Woon's amendment is well-intentioned, but I would like to explain why I will not be able to accept it. He proposes to delete the existing definition of relative, which specifies what the term means in respect of illegitimate, legitimate and adopted children. His proposal is to have an inclusive provision defining the term only for the case of an adopted child. He argues that the present definition is too restrictive. I am unable to accept his amendment because it would leave the term "relative" undefined. Such an approach would be too wide and would create uncertainties. The Legal Aid Bureau would, in fact, encounter considerable practical difficulties in administering the means test in the absence of any clear criterion as to who qualifies as a relative. Therefore, in the interest of both certainty and parity, the existing definition, in my view, should be retained.

Actually, we have had this definition for a long time in the statutes. I have discussed this with the Director of Legal Aid who has informed me that the Bureau has had no problems in applying this definition in practice. Of course, I recognise that there can be isolated instances, like the hypothetical cases mentioned by Assoc. Prof. Walter Woon where an infant stays with a rich or multi-millionaire grandparent or rich uncle. But in reality and in practice, such cases do not come to the Legal Aid Bureau. If they do, and if the Legal Aid Bureau is satisfied that it would be an abuse of the process, then I would like to assure Assoc. Prof. Walter Woon that the scheme of the Act is that people are eligible for legal aid. There is no entitlement. Therefore, the Director of Legal Aid has the discretion under clause 8(3) of the Act to turn down such a case, because clause 8(3) says, "The Director may refuse legal aid if it appears to him unreasonable that the applicant should receive it in the particular circumstances of the case." I am sure that in such a case, he would exercise the discretion in that way.

Amendment negatived.

Clause 6, as amended, ordered to stand part of the Bill.

Clauses 7 to 25 inclusive ordered to stand part of the Bill.

First and Second Schedules ordered to stand part of the Bill.

Bill reported with an amendment, read a Third time and passed.