RESPONSE BY CHIEF JUSTICE SUNDARESH MENON
OPENING OF THE LEGAL YEAR 2024
Monday, 8 January 2024
Members of the Bar,
Ladies and Gentlemen:
1. On behalf of the Judiciary, I am delighted to welcome everyone to the Opening of this Legal Year. I am especially grateful to the Honourable Prof. Dr H. Muhammad Syarifuddin, Chief Justice of the Supreme Court of the Republic of Indonesia, the Honourable Viengthong Siphandone, President of The People’s Supreme Court of the Lao PDR and The Right Honourable Tun Tengku Maimun binti Tuan Mat, Chief Justice of Malaysia, for travelling to Singapore, and to our guests who have taken the time to join us this morning.
2. As you have both observed, our world seems ever more uncertain, with rapid changes and significant challenges afoot. The headwinds of disruptive technology and economic uncertainty, the inherent dangers of major ongoing international conflicts, and the existential threat of climate change are all coming together in an unprecedented way. These changes will inevitably affect the law. Indeed, I consider that the legal services sector is at an inflexion point. We must therefore reflect on how we, individually and collectively as a profession, might best navigate the future – by reshaping the justice system, the practice of law and legal education. This is what I will cover in my response.
II. IN MEMORIAM
3. Before that, I want to pay tribute to the late Mr Adrian Tan. Most of us knew things about Adrian; fewer among us actually knew him. We all knew he had a wonderful sense of humour, practised law for about 30 years, served in various capacities with the Law Society, including as President, and expressed his views on legal and social issues under the tagline “masked litigator, advocate for advocates, socially and emotionally distant law firm partner”, and gained a sizeable online following. But I was especially touched by the efforts of his law firm partners to help us know Adrian a little better, even after his passing, through the stories that were told by those who knew him well. Through them, we gained some special insights into the man. He was the litigator who regularly championed the underdog, even if that meant the bills might not always be paid; the Law Society President who felt the struggles and anxieties of his fellow lawyers at every level, and did his utmost to help them; and perhaps most remarkably, the man who was mourned by someone he had cross-examined, and who was filled with respect and admiration for Adrian because of the manner of his cross-examination. Justice Hri Kumar was one of Adrian’s closest friends. I heard him speak about Adrian in public and in private, and I was struck each time by how deeply their friendship had impacted his life. Adrian was a man of strong opinions and he lived life on his terms, seeking to be true to his beliefs. Speaking to new graduates in 2022, he said these words, which I shall quote because I can think of no better words with which Adrian could take his leave of our profession:(1)
When you leave this world, if you have connected with other human beings, told their stories, and enriched society, you will have lived a life of meaning. The goal is not to seek happiness for ourselves, but to provide it to others. That is a life of service, and I commend it to you.
4. It is fitting that the Law Society posthumously awarded Adrian the C.C. Tan Award, which recognises a member who best exemplifies the virtues of honesty, fair play and personal integrity. We, in the Judiciary, mourn Adrian’s passing and we join the Law Society in saluting his many contributions to our profession and to the lives he touched.
5. Let me next briefly recap the changes to the Bench which you both have touched on. First, I extend my heartiest congratulations to:
6. Second, Judicial Commissioners Alex Wong, Christopher Tan, and Kristy Tan were appointed last year. They each bring a wealth of experience, and I welcome them to the Bench.
7. In addition, there have been or will be several extensions as follows:
8. Next, I extend my deepest appreciation to:
9. I am very grateful to each of them for their numerous contributions and distinguished service to the Judiciary and to Singapore. Justice Prakash, in particular, served more than three decades on the Bench, with many of her judgments, especially in arbitration and commercial law, proving influential both domestically and abroad. I am delighted that Justices Prakash and Tan now serve as Senior Judges, and that Justice Lee will do so from later this month.
10. Finally, I am very pleased that Justices James Allsop and James Michael Peck have joined us as International Judges. Justice Allsop had a highly distinguished career at the Bar and on the Bench, culminating in his service over a decade as the Chief Justice of the Federal Court of Australia. And Justice Peck is among the most respected insolvency judges and practitioners in the world. He was most recently the global head of the Cross-Border Restructuring practice of a major international law firm, and prior to that was a United States bankruptcy judge for the Southern District of New York, in which capacity he presided over significant chapter 11 and chapter 15 cases, including in particular, that of Lehman Brothers.
11. Collectively, these appointments will further strengthen the Bench with a rich and diverse array of experiences and skills.
12. I also congratulate Ms Lisa Sam on her election as the Law Society’s President. Having heard Ms Sam’s maiden address, I think we have much agreement on what lies ahead. I look forward to working with you to strengthen the partnership between the Bench and the Bar, and I extend our best wishes to you. I also take this opportunity to extend our condolences to Ms Sam on the passing of her beloved father over the weekend. We are so sorry for your loss, Ms Sam, and greatly appreciate your presence this morning despite your immense loss.
IV. CHANGES AFFECTING THE COURT
13. I said earlier that we are in a time of change. I will first address the changes affecting the Court, before turning to those affecting the profession.
14. At one level, the courts’ function is adjudicative. We find the facts and interpret and apply the law fairly. But there is a second key function which might be termed the courts’ systemic task of developing and operating a system of administering justice that is accessible to all. These roles are distinct, but complementary, and both must be fulfilled to secure public trust in our justice system and safeguard the rule of law. There was perhaps a time when trust was secured principally, and perhaps even exclusively through sound adjudication.
15. But with many challenges, including declining trust in public institutions, rising inequality and slowing social mobility, all creating an increasingly complex environment, this view is no longer tenable. These factors have already fractured social cohesion elsewhere and may in time create similar pressures here.(2) This of course is a broader concern that extends beyond the remit of the courts; but we play an essential stabilising role in society, in particular by ensuring that justice is done and that it is accessible. The sound discharge of the adjudicative function alone will not suffice, if citizens feel the courts are beyond their reach.
16. Our Judiciary is alive to these challenges and we have sought to strengthen our systemic function. In tandem with efforts to enhance access to justice, we are innovating our systems, processes and hardware, and striving to foster an organisational culture in which our Judges, judicial officers and court administrators are committed to securing the fair and efficient administration of justice for all users. We have implemented several initiatives and others are forthcoming. Let me highlight some of these.
A. A shared vision under One Judiciary
17. The Supreme Court, the State Courts and the FJC have been unified under the One Judiciary framework, with a common vision and core values. Our vision – “A trusted Judiciary . Ready for tomorrow” – encapsulates what we are, and what we must continue to be, to discharge our mission of administering justice. Our core values – Fairness, Accessibility, Integrity, and Respect – spell the word “FAIR” when acronymised, and reflect the key principles that our Judiciary stands for.
18. We have also reorganised the Judiciary Administration. Last year, we established the Access to Justice (“A2J”) Programme Office reporting to the Chief Executive to drive a whole-of-judiciary effort to become a more outward-facing, user-centric organisation that strives to serve our users better. The Office formulates A2J policies, drives A2J projects in collaboration with various divisions in the Judiciary, and promotes an overarching focus on A2J as a mindset and culture within the Judiciary through ground-up efforts. We also established the Judicial Policy Division to drive the overall strategic direction of the Judiciary and support the A2J Programme.
B. Civil Justice initiatives
19. I turn to some initiatives that concern civil justice. The first is to extend the simplified process for civil proceedings in the Magistrate’s Courts under Order 65 of the Rules of Court 2021 to District Court proceedings. The simplified process, which features upfront disclosure of documents together with early and active case management, is now available in the District Court if all parties consent. Parties are required to consider the applicability of the simplified process when they file their first documents in District Court cases; and to indicate if they intend for it to apply. This will help save time and costs and so enhance access to justice.
20. The second is the development of costs guidelines for civil cases in the District Courts, aimed at promoting transparency on likely costs awards. A Working Group, comprising representatives from the State Courts and the Bar, has been developing these guidelines, taking into account an extensive review of previous costs orders, a detailed survey of law practices, and consultations with the Ministry of Law and the Law Society. These will be finalised with a view to advancing the principles of proportionality and access to justice while also recognising market realities.
21. The third is the recommendation of the Commercial Practice Panel co-chaired by Justices Kannan Ramesh and Philip Jeyaretnam to introduce an express track scheme (the “Scheme”) for civil proceedings. If implemented, this will provide a template of clear and identifiable rules to promote the speedy and more expeditious resolution of compact trials, which in turn will help enhance access to justice. Consultation will be undertaken with the profession later this year, prior to deciding on the implementation of the Scheme.
22. The fourth is the introduction by the Singapore Mediation Centre (“SMC”) of a new alternative dispute resolution (“ADR”) service known as the Integrated Appropriate Dispute Resolution Framework (“INTEGRAF”). I have previously spoken on the effectiveness of ADR mechanisms, which are less formal and more flexible than litigation. When well-integrated within the judicial process, these can facilitate quick and inexpensive dispute resolution, if not wholly then at least in part.(3) INTEGRAF will enable parties to apply one or more dispute resolution solutions, including mediation and neutral evaluation, to different aspects of a dispute. The SMC will pilot this with, among other partnering agencies and organisations, the Singapore International Commercial Court (“SICC”). INTEGRAF will also be piloted in technology disputes in collaboration with the Singapore Computer Society and with the support of the Intellectual Property Office of Singapore. INTEGRAF will enhance the prospect of litigants resolving their disputes amicably, where appropriate, and will also allow parties to tap on the SICC’s expertise in resolving complex international and commercial disputes, particularly in relation to technology, infrastructure and construction.
C. Family Justice initiatives
23. Turning next to family justice, the FJC implemented a range of measures last year to enhance access to justice by actively extending its touch-points within the community. The enforcement of maintenance orders can be particularly trying for parents who must balance work and childcare. For greater convenience, applications to enforce maintenance orders may now be made at integrated service hubs such as ServiceSG@Our Tampines Hub and ServiceSG@One Punggol, without having to physically attend at the FJC. This will go some way to ease efforts to secure the payment of maintenance arrears.
24. Another prong of the FJC’s continuing efforts to enhance access to justice is the introduction of the new Family Justice Rules, slated to come into effect this year. The new Rules have a simplified structure with fewer provisions(4) and to ease navigation, these are organised into three volumes by subject-matter. The Rules also adopt simpler terminology, to benefit self-represented persons in particular.(5) And the more commonly used Court Forms have been completely digitalised, to facilitate a step-by-step process with signposts and guides that prompt users on what they will need to submit. These enhancements will make the new Rules more user-friendly, navigable and comprehensible.
25. In family disputes, beyond having their day in court, it is vital that parties leave with an effective and lasting solution that does not require repeated or further recourse to the courts. In line with this, the FJC has in recent years advocated a therapeutic, problem-solving approach to divorce and guardianship matters. Its most recent initiative is the introduction of a triage process for all fresh divorce applications to identify high-needs and high-conflict cases early. These will typically be handled by a multi-disciplinary team, comprising the hearing judge, a mediator and a counsellor or psychologist. Such teams are better placed to analyse the issues from both the legal and social science perspectives, enabling the court to come to the heart of the matter expeditiously. They may also identify parties who will benefit from specific interventions and refer them promptly to the relevant support services. This will help avoid unnecessary litigation and the escalation of acrimony. The aim is to find durable solutions addressing the particular needs of each case through a firm judge-led process.
26. In a similar vein, recognising that effective dispute resolution requires specialised and experienced judges who are attuned to the particular needs of litigants, the FJC has established three specialist divisions focusing on vulnerable parties. These are the Court of Protection, which issues personal protection orders and orders to protect vulnerable adults; the Maintenance and Enforcement Court, which oversees maintenance orders, and their enforcement and variation; and the Youth Court, which issues family guidance orders, care and protection orders and presides over criminal cases involving youth offenders. Judicial officers in these Specialist Courts will hear cases in their areas of focus. Over time, this will deepen their expertise, thus enhancing the effectiveness of these Specialist Courts and their sensitivity to the needs of vulnerable parties, while also helping to develop sound jurisprudence.
D. Enhancing judicial training and education
27. The final aspect I wish to mention is the enhancement of judicial training and education through the Singapore Judicial College (“SJC”). Before the SJC’s establishment, judicial training was largely decentralised. The SJC changed this by adopting a co-ordinated and institutional approach to such matters as curriculum development and pedagogy,(6) and it has done excellent work. But with the challenges that face us, it was time for a significant reset. I am pleased to announce that the SJC is now headed by our new Dean, Professor Natalie Skead, who comes to us following a distinguished tenure as Dean of the University of Western Australia School of Law. The SJC has also been strengthened with the establishment of specialist centres and allied education specialists as well as subject-matter advisory panels to periodically review its curriculum. There are other important developments to come, and I am very grateful to my colleagues, in particular Justices Kwek Mean Luck, See Kee Oon and Philip Jeyaretnam and the Executive Director of the SJC, District Judge Paul Quan, for their sterling efforts in this significant and ongoing effort.
V. CHANGES AFFECTING THE LEGAL PROFESSION
28. Let me turn to challenges facing the profession. As Ms Sam has noted, the profession may need to reinvent itself to meet these challenges. Let me outline some distinct but interconnected issues which we should consider.
A. Future-readiness in the Face of Technological Advancements
29. The first is the rapid advancement of technology, in particular, the capabilities of generative artificial intelligence (“AI”), which employs deep-learning algorithms that can generate original, seemingly high-quality content in response to user prompts, at a speed that far outstrips human capability. While needing to embrace technology’s transformative potential, we must ensure our readiness for it.
30. Since the launch of ChatGPT, many new large language models have emerged. The consulting firm McKinsey, suggests that for certain capabilities such as logical reasoning and problem-solving, generative AI is already performing at a median level of human performance, and will match the top-quartile of human performance by the early-2030s.(7) This surpasses some of the predictions that preceded the advent of generative AI.(8)
31. The growing impact of generative AI will transform how the profession works(9) beginning with areas like due diligence, contract review, legal research, and the production of legal documents. Some such work will likely be done by machines and technologists rather than by lawyers.
32. However, as generative AI models become increasingly sophisticated, concerns regarding their use have intensified. Mr Attorney, you have mentioned some of these. Our profession must ensure that generative AI is used responsibly and ethically. Because generative AI tools produce output simply by statistical predictions in response to a prompt, they are not conscious of fundamental professional values such as honesty and integrity. These tools can and will on occasion provide output which may sound credible, and yet be wholly inaccurate.(10) Generative AI models may also inadvertently amplify biases in training data, creating skewed outputs. Another ever-growing concern is the need to protect data privacy, security, and confidentiality while utilising generative AI. These are just hints of the issues we will have to contend with.
33. I am therefore heartened that the Law Society is studying the potential impact of AI. The Judiciary has been working on some of these issues on our own, and also in partnership with several counterparts abroad. I encourage the profession to consult with Justice Aedit Abdullah and his team so that we can avoid reinventing the wheel. We will also consider issuing guidance to the profession in this area, without impeding the spirit of innovation and experimentation that has been inspired by AI developments over the past 18 months or so.
34. The rise of generative AI will also aid the Judiciary’s efforts to enhance access to justice. Just last month, an international law firm created an AI contract drafting, review and analysis tool known as ContractMatrix. This was done in partnership with Microsoft and Harvey, one of the pioneers in law-related AI.(11) We too have entered into a Memorandum of Understanding with Harvey. For a start, we are studying whether AI can help users in the Small Claims Tribunal better understand and explain their claims and defences. This may prove transformative in time and may foreshadow the broader use of AI in delivering solutions to court users.
B. Reform of Legal Education
35. Legal education must prepare us for these developments and here, I highlight the work of the Working Group for the Reform of Legal Education co-chaired by Justice Audrey Lim and Permanent Secretary (Law) Mr Luke Goh. Its mission was to holistically review the legal education and training regime to ensure that the profession is equipped to meet the demands of modern legal practice and support Singapore’s aspirations for the legal services sector. Established under a Steering Committee, comprising the Ministers for Law Mr K Shanmugam SC and Mr Edwin Tong SC, the Minister for Education Mr Chan Chun Sing, the Attorney-General, Professor S Jayakumar and myself, the Working Group comprises representatives from the Government, our law schools and Temasek Polytechnic, the Singapore Institute of Legal Education (“SILE”), the Singapore Academy of Law (“SAL”), the Law Society, the Singapore Corporate Counsel Association (“SCCA”) and practitioners.
36. The Steering Committee was mindful of several considerations, some of which I will mention:
37. The report of the Working Group will be published shortly and merits close reading, but I highlight some key recommendations:
38. In this connection, let me mention some of SAL’s plans that will support the recommendations of the Working Group.
C. Ethics and professional standards
39. I want finally to follow up on a point I raised at the Opening of the last Legal Year. I spoke then of the need to re-affirm the bedrock principles, values and ethical standards upon which legal practice, and Singapore’s standing as an excellent centre for law, can thrive. I established the Ethics and Professional Standards Committee (“the Committee”), co-chaired by Justice Valerie Thean and Mr Jimmy Yim SC, to study this issue and develop a strategy aimed at re-establishing the moral centre and values of our profession for existing practitioners, and fostering this among new entrants to our ranks.(13)
40. The Committee has done much work last year: conducting focus group discussions with the wider legal community to better understand the issues, analysing statistics of complaints made to the Law Society and disciplinary cases resolved over the last few years, and commissioning a survey of young lawyers, conducted with the SAL and PricewaterhouseCoopers Singapore (“the Survey”).
41. The Committee has delivered its Interim Report and I will publish it soon. While disciplinary violations have risen from 2018 to 2022 in absolute numbers, its proportion in relation to the growing numbers of the profession in that same period is encouragingly quite small. Further, the majority of the infractions concern professional standards issues, which can often be addressed with training and mentorship. Of the complaints filed from 1 September 2018 to 31 August 2020, more than 70% were dismissed, and less than 10% of lawyers complained against were sanctioned by either a Disciplinary Tribunal or the Court of Three Judges. The overall picture suggests that the ethical health of the profession is reasonably good. But the Committee’s work has identified some gaps that we must address.
42. I have accepted the Committee’s interim recommendations which are three-pronged:
D. Nurturing the next generation of the profession
43. These are interim recommendations because they form the first layer of spadework. If we are serious about our mission to secure our profession’s long-term health, the Survey shows that there is a real need and desire on the part of our young colleagues for structured mentoring, better training and ethical formation, and more sustainable careers that emphasise their involvement in the mission of administering justice within workplace environments that are aligned with their aspirations. This is a point emphasised by Ms Sam in her address this morning. Law firms must recognise these changing expectations and strive to cultivate environments conducive to high professional standards and to retaining talent within the legal profession. These issues came up in the course of the Committee’s initial work and I have asked that it study them and present its proposals in its Final Report.
44. If we are to successfully navigate the evolving landscape, bridging the generational gap between junior and senior practitioners will be essential for the profession’s sustained vitality and renewal. Our profession has historically had a strong tradition of apprenticeship, and for good reason – watching and listening to one’s mentors and role models, and observing day-to-day decision-making are an essential part of learning the practice of law and catching the values of honesty, integrity and service.
45. There is much at stake in the effort to form and retain our share of the best legal talent. On the domestic front, we need good and conscientious legal minds to assist individuals, social entities, businesses, and the Government. On the international front, if Singapore is to continue to thrive as a trusted global node for legal services, we must ensure the best legal advice is available here. I therefore encourage all of you to participate in the Committee’s focus groups and work in the months ahead.
VI. APPOINTMENT OF SENIOR COUNSEL
46. I have reached the point in my response where I touch on the appointment of Senior Counsel. The Selection Committee decided that it would not appoint any Senior Counsel this year. As the appointment opens the door to many opportunities including the practice of advocacy at international fora, we also refined the appointment criteria, as part of our continuing effort to ensure that the persons we appoint compare favourably with international counterparts. Moving forward, we will place greater emphasis on the applicants’ work that has tangibly contributed to the development of Singapore law, and on their contributions to the profession. We encourage aspirants to this honourable appointment to persist in these efforts.
47. In closing, I return to both your addresses. Mr Attorney, you have spoken of the efforts of the Legal Service to upgrade the skills of your Officers to enable your Chambers to effectively service the Government’s many and diverse legal needs as it navigates a challenging future.
48. And you, Ms Sam, have touched on several important points: the need to enhance mentoring including reverse mentoring while also attending to the formation of our young lawyers; the need for upskilling; the need to impart knowledge in new areas, including through a review of the university curriculum; the need to focus on and better understand the concerns of our younger colleagues; and the need for sustainable working practices. All of these resonate with my address this morning.
49. As we contemplate an uncertain future together, it is encouraging for me, and I suggest it should be for all of us, that there is considerable programmatic alignment between the Bench, Bar and the Service. This gives me confidence that we will rise to the challenge together, united as the profession honoured to be entrusted with the privilege of administering justice in this nation.
50. On behalf of the Judiciary, I wish each of you a very happy, healthy and fulfilling New Year.
(1) Commencement address delivered by Mr Adrian Tan at the 2022 NUS Law and Music Faculties Commencement Ceremony (7 July 2022): https://lawgazette.com.sg/practice/practice-support/mistakes-i-made-in-searching-for-happiness/ (accessed 2 January 2024).
(2) Forward Singapore Report at p. 6: https://www.forwardsingapore.gov.sg/-/media/forwardsg/pagecontent/fsg-reports/full-reports/mci-fsg-final-report_fa_rgb_web_20-oct-2023.pdf (accessed 2 January 2024).
(3) Chief Justice Sundaresh Menon, Inaugural Meeting of the International Judicial Dispute Resolution Network, “The JDRN: Remoulding the Justice System” (18 May 2022), at para 8.
(4) From more than 1,000 provisions in the current iteration of the Family Justice Rules, to approximately 700 provisions in all three volumes of the new Rules.
(5) For instance, the terms “memorandum of appearance” and “counterclaim” will be replaced by “notice of contest” and “cross-application”,
(6) Chief Justice Sundaresh Menon: Response delivered at the Opening of the Legal Year 2015, 5 January 2015, at para 48.
(7) McKinsey, “The Economic Potential of Generative AI: The Next Productivity Frontier” (June 2023): https://www.mckinsey.com/capabilities/mckinsey-digital/our-insights/the-economic-potential-of-generative-ai-the-next-productivity-frontier#introduction (accessed 2 January 2024).
(8) McKinsey, “What’s the Future of Generative AI?” (August 2023): https://www.mckinsey.com/featured-insights/mckinsey-explainers/whats-the-future-of-generative-ai-an-early-view-in-15-charts (accessed 2 January 2024).
(9) In the Wolters Kluwer 2023 Future Ready Lawyer Survey Report, almost three quarters of the lawyers surveyed indicated that they will be integrating generative AI in their legal work in the coming 12 months. Almost half of the lawyers surveyed saw generative AI as an opportunity. About 700 lawyers in law firms, legal departments and business services firms across the US and nine European countries were surveyed: https://www.wolterskluwer.com/en/news/future-ready-lawyer-2023-report (accessed 2 January 2024).
(10) E.g., In Harber v The Commissioners for His Majesty’s Revenue and Customs (2023) UKFTT 1007 and Mata v Avianca Inc (Case No. 22-cv-1461 (PKC) (S.D.N.Y.)), various parties relied on generative AI to prepare legal submissions. The legal submissions cited cases which did not in fact exist, and which had been generated by AI.
(11) “Allen & Overy rolls out AI contract negotiation tool in challenge to legal industry” (Financial Times, 21 December 2023): https://www.ft.com/content/f1aff4d0-b2c5-4266-aa0a-604ef14894bb (accessed 2 January 2024).
(12) Such members do not have any outstanding fees.
(13) Chief Justice Sundaresh Menon: Response delivered at the Opening of the Legal Year 2023, 9 January 2023, at para 28.