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Parliament: Govt studying setting up of public defenders' office for accused who can't afford lawyer, says Shanmugam

Parliament: Govt studying setting up of public defenders' office for accused who can't afford lawyer, says Shanmugam

Source: Straits Times
Article Date: 05 Nov 2020
Author: Fabian Koh

The unit is a proposal being considered in the review started last year of the Criminal Legal Aid Scheme.

A public defenders' office could be set up by the Government to provide legal help for those facing criminal charges in Singapore but are unable to engage their own lawyer.

It is a proposal being considered in the review started last year of the Criminal Legal Aid Scheme (CLAS), which was enhanced in 2015, Law and Home Affairs Minister K. Shanmugam told the House on Wednesday (Nov 4).

The details and feasibility of such an office will be further studied by the Government, with the Law Society and Criminal Bar, he said, adding that the Law Ministry is in favour of it.

But such a scheme is not without challenges, he noted, citing examples faced by similar schemes overseas.

Mr Shanmugam explained that having a public defenders' office means the Government pays for the lawyers and employs them in a separate structure, to defend the accused in criminal cases.

"How many officers, how big, how much, are conversations we have to have with the Ministry of Finance (MOF), among others. But in principle, we have to first discuss it with the profession, and then talk to MOF and deal with the issue.

"In principle, our approach, I think might have to go down that route, and we are, at least my ministry - Ministry of Law - in favour of this approach," he said.

The minister was responding to Ms Carrie Tan (Nee Soon GRC), who had asked about implementing such a scheme, during his ministerial statement on the Parti Liyani case.

Ms Parti, who previously worked for the family of former Changi Airport Group chairman Liew Mun Leong, was sentenced to jail last year for stealing from the family. She successfully appealed against her conviction, and her acquittal prompted questions about the criminal justice system's treatment of people who are less well-off.

Mr Shanmugam also addressed questions from Mr Zhulkarnain Abdul Rahim (Chua Chu Kang GRC) and the Progress Singapore Party's Non-Constituency MP Leong Mun Wai, on increasing direct legal aid to those who cannot afford to get their own lawyers.

He said there is a framework and assessment process in place for the Clas, which was initiated in 1985 by the late Senior Counsel Harry Elias and is administered by the Law Society's Pro Bono Services.

Means and merit tests are applied for each case to ensure that funding is targeted and allocated to vulnerable applicants who genuinely need help.

The Government pays 75 per cent of Clas' operating costs, including staff salaries and overheads costs, with Clas funding the remaining 25 per cent through private donations and the Law Society.

He added that the honoraria paid to the lawyers is "extremely nominal", so their services are effectively pro bono.

To decide if Singapore's model, of the Government and private sector jointly funding such legal aid, should be changed to one of full government funding, Mr Shanmugam cited some overseas situations.

He said England and Wales offers a fully government-funded criminal legal aid scheme which comprises a public defender scheme with in-house government lawyers, and a legal aid scheme that outsources cases to private lawyers.

This has drawn much public debate and outcry owing to abuse and escalating government cost, and unhappiness over the large legal aid fees, especially for lengthy trials in which the defendants were ultimately convicted, he added.

The minister also said there have been many reports of rich defendants who had received legal aid as their assets were frozen, but still remained wealthy enough because the authorities had not managed to seize all of their assets.

"Around 50 defendants with more than S$1.76 million in illegally obtained assets were found to have received legal aid in 2012," he said. Owing to the high legal aid costs, the government of the United Kingdom has had to implement drastic spending cuts to legal aid budgets since 2012.

But these reforms were strongly opposed by lawyers, who deemed the reformed fee schedules to be inadequate and went on strikes in 2014 and 2018, disrupting court proceedings and delaying the resolution of criminal cases.

"You must note, once you make legal aid a requirement, you can't proceed with the case until you find a lawyer who is willing to handle it for the fees proposed," said the minister.

While Ms Parti was represented by lawyer Anil Balchandani pro bono, the defence counsel estimated that if full fees were charged, it could have cost $150,000. Mr Shanmugam noted that if criminal legal aid was set as a requirement, then taxpayers will have to pay that amount.

He cited Hong Kong's fully government-funded public defender scheme, which cost S$217 million in civil and criminal legal aid in 2017. Hong Kong has also experienced growing legal aid budgets owing to continual increase in lawyers' fees of up to 10 per cent yearly.

Mr Shanmugam noted that Australia and New Zealand also face such issues, which could get "very costly and very difficult to manage".

Responding to Mr Leong's question on whether lawyers under Clas can receive a higher honorarium, Mr Shanmugam said: "My preference is to keep the pro bono spirit. A mix of lawyers employed specifically by Clas..... with lawyers from private sector coming in."

He added that "we are also not completely satisfied with the current model".

Mr Shanmugam further said that when it was announced in 2014 that Clas was to be enhanced, some lawyers were concerned that it would eat into their rice bowl. He, however, explained to them that the target group was those who could not have gone to them anyway.

He added that discussions are ongoing with the Law Society, which is supportive of expanding criminal legal aid but has expressed strong concerns on the impact on paid work, especially for small law firms.

Likewise, discussions are ongoing with the Criminal Bar, which has counter-proposed expanding the coverage of offences instead.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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