Tuesday, March 27, 2018

Protecting judicial quality -- a view from Singapore

The following article on a current debate in Singapore recently appeared in TodayOnline:
It is important to have a strong and trusted Judiciary as the bedrock of the rule of law in Singapore, said Minister for Law and Home Affairs K. Shanmugam in Parliament on Wednesday (March 21), adding that the Government has taken steps to protect the Judiciary from abuse and contempt. He was responding to questions filed by Member of Parliament for Holland-Bukit Timah GRC Christopher De Souza on the measures the Government is taking to ensure that the Singapore Judiciary continues to be able to attract legal talent of the highest caliber, as well as how the situation in Singapore compare with that of the United Kingdom. Mr De Souza had distributed three articles regarding difficulties in recruiting top judges in the UK. Below is an excerpt of Mr Shanmugam’s parliamentary speech:
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.

It says that the UK courts are unable to attract high-calibre legal talent to fill the vacancies in 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 will 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. And many of us grew up as lawyers, knowing and believing that the British Judiciary was in fact the gold standard.

So, 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: “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).

The results of a 2016 UK Judicial Attitude Survey published in February of last year showed that only 43 per cent of judges feel valued by the public. That is down from 49 per cent in 2014; which is itself low.

And only two per cent feel valued by the UK Government, (while) only three per cent feel valued by the media. In fact, 42 per cent 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 some to the attacks on judges by the British media.

You can imagine that the standing of the Judiciary in the eyes of the public – does not get enhanced when these sort of attacks are made by mass circulation media.

In an earlier 2014 UK Judicial Attitude Survey, almost two-thirds (62 per cent of all judges) said members of the judiciary are respected by society less than they were, 10 years ago.

Half of all judges – in fact 56 per cent of all judges – see media representation of judges and the public misunderstanding of the judiciary as factors driving the 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, and social media in particular, seem 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 per cent of the respondents – the judges – said they have concerns about their 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 view the Courts, 92 per cent said they had trust and confidence in our legal system and 96 per cent agreed that Singapore was governed by rule of law.

In fact you see the sort of surveys across the system - of police and courts and the legal system. And they are all at about 90 per cent or above, in terms of trust.

A State Courts user survey that same year found that 95 per cent 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. It 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 United Kingdom in some ways.

First, there is a considerable difference between the United Kingdom and Singapore, in our respective approaches to remuneration of Judges.

A Senior Judge (in the UK) could get about 181,000 pounds sterling, which I think equates to less than S$400,000 today.

For us – the records are public – top practitioners do take a pay cut when they become judges.

Depending on where they were outside, it could be a significant pay cut. Some could take as much as a 70 to 80 per cent pay cut. But many others might take a 10 to 20 per cent pay cut.

But in the UK, you take a top silk earning 2 million pounds or more, and then you 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 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.

So that is one aspect – remuneration – and it is important. We have to make sure that, while there is a cut, we 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, as seen in many places; or you certainly don’t 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 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”.

Since the situation was so bad, and since 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 can’t 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 didn’t abolish the offence. Even before AOJP, we have 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.

In fact, that is why I decided that we in fact have 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 and outside: other countries are going in the opposite direction, why don’t we 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, 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 path. It is important that we are not colonised in our minds.

And the test is 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 or next year, in the next 2 years.

But some years later, we are likely to find ourselves in the same position that the British find themselves in today: judges being under attack, distrust generally pervading, and 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.

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