A matter of interpretation

Benjamin Cheah / Senior Writer

Nothing in the law states that the Law Society must wait for the Government to submit anything to it before acting

On 25 July, the Straits Times interviewed Michael Hwang, the President of Singapore’s Law Society. The interview seemed to suggest that the Law Society will not push the Government to amend Section 38 (1)(c) of the Legal Profession Act. But there is no need for the Law Society to do so anyway.

Section 38 (1)(c) charges the Law Society “to assist the Government and the courts in all matters affecting legislation submitted to it, and the administration and practice of the law in Singapore”. The common interpretation is that the Law Society will speak on legal issues only upon request by the Government. But nowhere in Section 38 or the Legal Profession Act exists a clause that specifically prohibits the Law Society from taking a more proactive stance. This strategy of reaction, I believe, is instead self-imposed, based on events 22 years ago.

In 1986, the Law Society, then presided by Francis Seow, criticised the Government for amending the Newspapers and Printing Presses Act. This amendment allowed the Government to curb the circulation of foreign publications in Singapore that were deemed to be interfering in Singapore’s domestic politics. The Law Society’s press statement argued that doing so would compromise freedom of speech in Singapore, by silencing dissent and reducing the awareness of foreign criticism of Singapore. The government slammed Francis Seow for using the Law Society as a political vehicle. Three months later in August, the Legal Profession Act was amended.

The law is inherently political

The government’s rebuttal is disingenuous. The law is inherently political. The word “politics” describes the decision-making process in a group. Groups which make decisions based on the will of one man are said to be dictatorial, and groups that do the same through group discussions are called democratic. This decision-making process, however, has weight only because it is codified in the law.

Perhaps the most dramatic example was the Union of Soviet Socialist Republics (USSR). In the USSR’s formative years, the Communist Party of the Soviet Union (CPSU) reigned supreme. Every high-ranking government and military official was a committed, proven member of the Communist Party. The Politburo, led by the General Secretary, made every important decision, without consulting the people. This system was proscribed in the Constitution. Post-1985, however, following the ascendancy of Mikhail Gorbachev, state policies were amended, abolishing censorship, introducing elections, and establishing the Soviet version of Parliament, the Duma. In 1991, Gorbachev was removed from power by a coup orchestrated by Soviet hardliners. The coup in turn was defeated by Boris Yeltsin and massive public demonstrations. Yeltsin, upon taking political power, had the Constitution amended, formally banning the CPSU — effectively destroying the heart of the Soviet system.

Every transition period marked an increasing democratisation of Soviet politics, because the law was amended to shift the flow of political power.

The law is political. Therefore, calling the law society a “political vehicle”, a “political pressure group”, or anything to that effect is disingenuous, because it obscures the basic fact that the law decides politics, and that changing the law could change the political landscape. I think the Government recognises that, and wants to neutralise the Law Society before it could catalyse any kind of legal change that could change Singapore’s political landscape.

I believe the Law Society’s strategy of reaction was founded on fear and self-preservation. By directly confronting the Government on this issue, the Government might go further than amending the Legal Profession Act and slamming the Law Society in the guise of rebuttals. Through the Government’s command of Parliament, the Law Society could conceivably be severely weakened, or even abolished, through another stroke of law.

Section 38 (1)(f)

But the strategy of reaction is not a tenable one. Singaporeans are increasingly speaking up on various issues, engaging the Government in affairs of state in forums, dialogue sessions, newspapers, and the Internet. Inevitably, some of the areas of engagement will include segments of the law, like Section 377A of the Penal Code, or like Section 38(1), which this article discusses. In such scenarios, people will consult and have greater faith in lawyers, because their work takes them to the foundations and application of the law, making them highly qualified to clarify any confusion or contentions. Members of the Law Society thus have a duty to use their skills for the public good. This duty is, in fact, codified in Section 38 (1)(f) of the law.

Section 38 (1)(f) states that the Law Society is “to protect and assist the public in Singapore in all matters touching or ancillary or incidental to the law”. Such matters can extend to public debates on the merits and demerits of passing or abolishing a particular law, like when Singaporeans argued for and against the abolishment of Section 377A. In such times, the Law Society is empowered, and in law commanded, to “protect and assist” the public. But nothing in the law restricts the Law Society from protecting and assisting the public in any way.

In practice, the Law Society is free to engage in public debate for the common good. It is free to submit its own recommendations, to explain the intricacies and implications of the law, to critique arguments raised by the Government and the people, and to release press statements to do the same — effectively to act like a body of petitioners and citizens who happen to know the ins and outs of the law very well.

The Law Society, in fact, ought to do this. It should reverse its strategy, taking on a strategy of action. Instead of waiting for the Government or the courts to submit legal matters to it for consideration, the Law Society should participate in matters pertaining to the law, especially during public debates on the law. It is not reasonable to assume that the average citizen possesses an extensive knowledge of the law, so the Law Society could and should offer its assistance in the above-mentioned ways. To fail to do so is a neglect of its legal duty, with possible far-reaching legal implications.

Section 38 (1)(f) does not in any way contradict Section 38 (1)(c). Nothing in the law states that the Law Society must wait for the Government to submit anything to it before acting. Section 38 (1)(c) merely spells out one of the responsibilities of the Law Society. It is merely a matter of interpretation.

If, however, should there be a conflict between these two duties, the Law Society should stick by Section 38 (1)(f) and aid the public. Singapore is notionally a democracy, as enshrined in the Constitution. In Singapore’s political system, the people give the Government its power. Every Member of Parliament has been elected and re-elected in every election within contested constituencies. The act of voting symbolises support for the candidate, and a transfer of power from the voter to the politician. Yet the people retain the ability to take away power from the Government, by voting for another candidate or simply spoiling their vote. In addition, governments in the past have fallen because the people rose against them, believing that the State has failed, such as in the former USSR. The power of the government stems directly from the people, as the latter gives the former permission to act on the latter’s behalf.

Ultimately, there is no conflict over Section 38 (1)(c). The strategy of reaction was self-imposed, because of an unnecessarily strict interpretation of that law. A strategy of action is preferable, as the people stand to benefit more if the Society steps in than if it did not. Adopting the latter is also very simple. The Law Society need only do its job: interpret the law. And live by it.

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