Measures to Attract Legal Talent to Singapore Judiciary

2 Mr Christopher de Souza asked the Minister for Law (a) what are the measures the Government is taking to ensure that the Singapore Judiciary continues to be able to attract legal talent of the highest calibre; and (b) how does the situation in Singapore compare with that of the UK.

Mr Christopher de Souza (Holland-Bukit Timah): The basis of my question took reference from a recent 18 March report published in the British newspaper, The Times. With Speaker's permission, may I ask the Clerks to distribute copies so that Members can refer to it?

Mr Speaker: Yes, please. [Copies of article distributed to hon Members.]

Mr Christopher de Souza: I am grateful. I have also informed the Minister for Law so that the article can be addressed in the Minister's response. Question No 2, please.

The Minister for Law (Mr K Shanmugam): Mr Speaker, Sir, I thank the Member for the question, and I thank him for alerting me to the report beforehand. The article which the Member has distributed speaks of a "crisis in recruiting judges to the top levels of the bench" in the United Kingdom (UK). It says that the UK courts are unable to attract high calibre legal talent to fill vacancies on the Bench.

There are likely to be several reasons. One reason is said to be because of "a perception that [judges] are not valued". The article also says that the judges went to the Employment Tribunal to argue their case on their own remuneration packages, specifically pension arrangements. And the government is appealing against the Tribunal's ruling.

So, here you have judges taking up their cases to the Employment Tribunal against the government; and now, the government is appealing against that decision. I think many of us would find this turn of events quite surprising.

The UK judiciary has always been perceived as being in an exalted position, highly valued, world-class and, really, beyond these sorts of squabbles. Our own legal system is derived from the British system, and we owe much to them. Many of us grew up as lawyers, knowing and believing that the British judiciary was, in fact, the gold standard.

It is, therefore, quite saddening to read this article. Some of the difficulties faced by judges in the UK have been quite public for some time. One of the reasons for this state of affairs, in my view, is that, for some time, the UK judiciary does not appear to have been given the resources it may have needed. And also, judges have been subjected to unfair public attacks.

These attacks have undermined the standing, prestige and morale of the judiciary. In 2015, the then-Lord Chief Justice of the UK said that “there has, overall, been a widespread feeling [amongst judges] of not being valued or appreciated for their work”. I referred Members to this when we discussed the Administration of Justice (Protection) Act (AOJP Act).

The results of a 2016 UK Judicial Attitude Survey published in February of last year showed that only 43% of judges feel valued by the public. That is down from 49% in 2014, which is, itself, low; only 2% feel valued by the UK government; and only 3% feel valued by the media. In fact, fully 42% of judges stated in the survey that they would leave the judiciary if it were a viable option.

This state of judicial morale in the UK owes somewhat to the attacks on judges by the British media. With your permission, Mr Speaker, I have asked for two newspaper cuttings to be distributed to Members in the House.

You can imagine that the standing of the judiciary in the eyes of the public does not get enhanced when these sorts of attacks are made by mass circulation media. In an earlier 2014 UK Judicial Attitude Survey, almost two-thirds or 62% of all judges said that members of the judiciary are respected by society less than they were 10 years ago.

Half of all judges – in fact, more than half – 56% of all judges saw media representation of judges and 59% saw public misunderstanding of the judiciary as factors which drove these changes. I also referred Members to this during the AOJP debate.

It is not difficult to see why when you have newspaper headlines labelling judges as "Enemies of the people" and "You fools" when the courts decide in ways that the media dislikes.

The Internet, social media in particular, seems to have worsened the problem. The current Lord Chief Justice, in a press conference in December last year, said that judges are facing "an increasing torrent of personal abuse online", some of which was designed to intimidate them. In the 2016 Judicial Attitude Survey I earlier cited, 15% of the respondents – the judges – said they had concerns about their own personal safety on social media.

What are the lessons for us? The situation we have in Singapore is slightly different. In a survey conducted by my Ministry in late 2015 on how Singaporeans viewed the Courts, 92% said they had trust and confidence in our legal system, and 96% agreed that Singapore was governed by rule of law. In fact, if you see these sorts of surveys across the system – I am particularly aware of the Police, the Courts and the legal system – they all have about 90% or above in terms of trust.

A State Courts user survey that same year found that 95% of users of our Courts had confidence in the fair and effective administration of justice by the State Courts. But this is not cast in stone, and what is happening in the UK could easily have happened in Singapore and can easily happen to us if we are not careful. The reason it has not happened is because we have chosen a different path from the UK in some ways.

First, there is a considerable difference between the UK and Singapore in our respective approaches to the remuneration of judges. I think the article says that a Senior Judge could get about £181,000, which equates to something slightly less than S$400,000 today. For us – the records are public – top practitioners do take a pay cut when they become Judges and, depending on where they were outside, it could be a significant pay cut. Some could take as much as a 70% to 80% pay cut. But many others might take a 10% to 20% pay cut. But in the UK, if you take a top silk earning ₤2 million or more, then you will see the difference on average. So, the cut that our judges take is there, but it is not as steep as in many other countries, including the UK.

We also seek to appoint the best people from the private and public sectors to the Bench and key Legal Service appointments. Our Chief Justice himself was a leading practitioner who was highly regarded both in Singapore and on the international stage. Before he went on to the Bench, he was Attorney-General and then he went on to head the Judiciary.

That is one aspect – remuneration. It is important, and we have to make sure that it remains such that, while there is a cut, it cannot come to a stage where judges feel that they are paid so little that they do not want to take it up, which is the situation seen in many places. Or you certainly do not want them going to Employment Tribunals, and appealing and arguing about their own remuneration.

Second, we have been clear about protecting our Judiciary from abuse and contempt. When we passed the AOJP Act in 2016, there were suggestions that we ought to, in fact, abolish the offence of scandalising the Judiciary, as the UK has done.

The UK Law Commission did recommend the abolition of the offence, but it noted that "there [was] a great deal of extremely abusive online material concerning judges". It also observed that the UK Judiciary had lost the deferential respect it used to enjoy and lamented that "this change is one to be regretted", and since the situation was so bad and all the judges were being attacked online, and because the UK judiciary no longer had the deferential respect, there was little point in keeping the offence because you cannot reverse it anyway.

The offence of scandalising the judiciary was, therefore, of limited value in the UK, because scandalising the courts was very common.

We did not abolish the offence. Even before the AOJP, we had always taken a strict view on scandalising the Courts, because if there is an erosion of trust and confidence in our Judiciary, that would fundamentally affect the standing of Singapore and the way Singapore functions. That is why I decided that we, in fact, had to further tighten the law on scandalising the Judiciary and lowered the test from "real risk" of undermining public confidence in the administration of justice, to one of “risk” that public confidence would be undermined. That was a specific, considered decision and it was the one change to the substance of the law that the AOJP made.

Questions were asked then, in the House as well as outside: "Other countries are going in the opposite direction. Why do we not follow them?" My answer is a simple one – we follow other countries if it makes sense, and we frequently look at the practice of other countries and more mature societies – what is good, what will work, we are happy to take. We are not shy about that. But when it makes sense, we must also be confident in charting our own paths. It is important that we are not colonised in our minds.

And the test – since the AOJP has become law, has freedom of speech suffered? Have legitimate, free discussions on Court cases been stifled? If we were to compromise on this, the effects will not be felt this year, next year or in the next two years. But some years later, we are likely to find ourselves in the same position that the British find themselves today – judges feeling under attack or judges being under attack; distrust generally pervading; and an inability to attract top legal minds to take up positions on the Bench.

When the quality of the Judiciary suffers, the rule of law suffers. When the rule of law suffers, the country suffers.

The Government regards a strong and trusted Judiciary as the bedrock of the rule of law. That is worth defending vigorously, and we will continue to do so through our laws and policies.

Mr Speaker: Mr Christopher de Souza.

Mr Christopher de Souza: I thank the Minister for his reply, and I would like to say that I agree with every word in that response. My questions are: one, how do we keep the public's esteem for our Singapore Judiciary at a high and a continued high such that it is important to maintain our rule of law standing as a country?

Two, in line with the Public Service's move towards a clean wage, could the Minister clarify whether the judges are paid a pension or provided medical benefits, that is, do they have a clean wage?

Mr K Shanmugam: We do have a clean wage. So, they do not get a pension or medical benefits. The same goes for many other parts of the Public Service, including political officeholders.

As regards the Member's first question as to how we keep the enhanced standing of our Judiciary intact, I would, in fact, go further. I think we have a unique window of opportunity to make sure that our Judiciary is not just respected within Singapore. If you look at the development of Asia today – the huge economic growth – and the fact that if you look around in Asia, which place really stands out as the one place that has outstanding rule of law, outstanding judges, lawyers and where you can get your legal business done properly?

I think there are only two places that will seek to claim that position. One is Hong Kong and the other is Singapore. These are the two competitors for that. I am not an unbiased party in this, but I believe that we are ahead. Not only that, but I believe that we are putting clear blue water between ourselves and Hong Kong, in that respect, for a variety of reasons. I think in Hong Kong as well, to some extent, public attacks on the judiciary are not uncommon. And the standing and position of Singapore, the fact that it is seen as a neutral place that you can come to, and the fact that we have been able to make significant changes like the Singapore International Commercial Court (SICC), which is a unique value proposition across the region and for many places in the world. You get world-class judges sitting there hearing cases, and it can be in any law, and it may have no connection to Singapore and Singapore is a forum that they trust.

So, we should not only maintain the standing of the Judiciary which, as I have said earlier, is not a given, but we have to work hard at it. I think that means continuing to get the best available legal talent, make sure that the standing of the judiciary is not subject to unfair attacks. Their judgments can be subjected to any sort of criticism you want as a matter of law. You can say they have gotten their law wrong. You can say that you disagree with them. But do not ascribe personal motives. And if you believe there are improper reasons, the Corrupt Practices Investigation Bureau (CPIB) will investigate. We have a clear system. No one, in that sense, is above the law. So, we need to make sure of that. And you need a Government that is strong enough to make sure that it protects the standing of the Judiciary.

Let me give Members an illustration. We had a verdict in the City Harvest case in the Court of Appeal in February. In terms of the actual sentences that were imposed, it is quite clear that the Government took the view that the sentences were not adequate. It is quite clear. We had said it even before the Court of Appeal ruled. We had said the sentence was not adequate, which was why the Public Prosecutor appealed. It was also clear that substantial public sentiment was very much not in favour of the judgment that was delivered.

So, politically, the easiest thing – and that happens in many places – would have been for the Government to come to Parliament if it wanted to make a point and also join in, in the criticism. I think it is most unlikely that you will get a situation where the Minister for Law will stand here and say, while we disagree with the final result, nevertheless, judges ought not to be attacked. They ought to be respected, supported and be given the freedom to decide. If we disagree, we criticise their judgments, but let us not criticise them personally.

That is very important. You need a Government – and I hope this is common to all Members here, and I believe it is common to all Members here, both Government and Opposition – that is very strong in protecting the standing of our Judiciary. Thankfully, we have not had debates in this House, nor among reasonable opinion outside, about the Judiciary along the lines that are taking place in many other countries.

Thankfully, we do not have that and, therefore, we are able to deal with the substantive issues. One can argue, agree or disagree on specific aspects of the AOJP, but I do not think there is disagreement on the fact that our Judiciary has to be protected.

In answer to Mr Christopher de Souza's question earlier on Judges' pensions, I am told by the Prime Minister that the Judges' pensions may have been taken into account in their overall remuneration. So, the answer I gave the Member is still strictly correct – in that they do not get pensions, nor medical benefits, but under the clean wage system, that factor may have been taken into account in their remuneration package. I checked it, but I will check that again. And if I have to correct it, I will come back and let the Member know.

Mr Speaker: Order. End of Question Time.