Defending the poor

Defending the poor

SINGAPORE - Accused people who can't afford their own lawyers can now turn to the state for help.

Lawyers support the move, but the risks are ballooning costs and abuse.

A young man charged with making a hoax phone call to emergency services could not afford a defence lawyer.

He did not qualify for the Law Society's Criminal Legal Aid Scheme (Clas), the main recourse for Singapore's poor and needy accused of criminal offences that do not attract a death penalty.

Constrained by limited funds from private donors, the scheme covers offences under only 15 statutes. The Telecommunications Act, which the man had allegedly violated, was not one of the 15.

Unlike other cases that did not qualify for legal aid, this one had a happy ending. Criminal lawyer Anand Nalachandran took on the man's case for free, at the Law Society's request.

"He was intellectually challenged and he, his mum and his sister were in difficult circumstances, not just financially," recalls Mr Anand, 39, declining to reveal the young man's details to maintain confidentiality.

The young man subsequently received a conditional warning and the charge was withdrawn.

For decades, lawyers and MPs have pressed the Government to fund legal aid for criminal offenders and have been rebuffed - until this month. Law Minister K. Shanmugam announced that the Government will fund it, potentially benefiting 6,000 or half of the 12,000 accused persons a year.

Calling it a "clear shift" in government policy and philosophy, he said it was one of many recent changes, from universal health care to housing subsidies, to make Singapore society more inclusive and compassionate.

While governments abroad are struggling with escalating legal aid costs and scaling back aid, the Singapore Government is expanding its funding, though not without treading cautiously and putting in safeguards against abuse and runaway expenses. Insight examines this new approach to criminal legal aid, and its costs and benefits.

Access to justice

The push from lawyers and MPs for public funding of criminal legal aid is longstanding, as is the pushback from the Government.

The argument to ensure the poor have access to justice is pitched against that of the incongruity of expending public funds to both prosecute and defend the accused.

This was seen in a brief but pointed exchange in Parliament back in 1995, when then Law Minister S. Jayakumar crossed swords with Nominated MP Walter Woon, who would later become Attorney-General from 2008 to 2010.

Professor Jayakumar moved a Bill to delete a part of the Legal Aid and Advice Act that provided for state-funded legal aid in criminal cases.

Might he not reconsider, asked Professor Woon, who argued that poor people often could not afford a lawyer, and in the case of criminal prosecutions, could go to jail.

The only aid they could get was from the Law Society, which started Clas in 1985. But Clas was financed out of the generosity of members of the legal profession.

It was "paradoxical", he argued, for the Government to fund legal aid for civil cases - through a Legal Aid Bureau under the Ministry of Law - but not criminal cases where a person could lose his livelihood and freedom.

Prof Jayakumar argued that the Government spent a lot on maintaining a first-class law enforcement machinery, and invested heavily in good legal officers who carefully sieve through police papers and investigate offences for evidence to prosecute.

"It is incongruous and inconsistent that public funds should be used to defend an accused person which the state has decided ought to be charged in court and use public funds at the same time to get him off," he said.

He put it to the legal fraternity to fill the gap and fulfil its social and public role through Clas. Parliament passed the Bill, and the provision for state-funded criminal legal aid was deleted.

But lawyers and MPs continued to raise the issue.In February, the chairman of the Government Parliamentary Committee for Home Affairs and Law, Mr Hri Kumar Nair, called for legal aid to be extended to criminal cases. He cited Subordinate Courts figures that up to 41 per cent of accused people are without counsel at the pre-trial stage.

There were cases where people pleaded guilty to an offence they did not commit simply because they could not afford the cost of a trial, Mr Nair said.

Mr Lim Biow Chuan, MP for Mountbatten, also raised the issue in Parliament last month, after feedback from criminal lawyers that Clas is "understaffed and underfunded".

Clas ran a deficit of $106,689 in the financial year from April 1 last year to March 31 this year, based on the Law Society's annual report. Its income of $462,930 was funded largely by proceeds from a charity golf tournament.

Clas is not the only avenue for those who need help. People who do not qualify for Clas may be referred by the judges to other pro bono agencies like the Association of Muslim Lawyers (AML) or the Association of Criminal Lawyers of Singapore. They could also get help at community legal clinics.

But AML president Noor Mohamed Marican knows of people who still fell through the cracks, unaware of their legal options. If they had counsel, they could have compounded their case - where the victim agrees to be compensated by the accused - or requested a probation report when mitigating factors were in their favour. Instead, they were given a jail term and some were caned.

"By the time we knew of their case, it was too late to help them," Mr Marican says.

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