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Chief Justice Sundaresh Menon: Speech delivered at 19th Conference of Chief Justices of Asia and the Pacific
19th Conference of Chief Justices of Asia and the Pacific
The 37th LAWASIA Conference
Plenary Judicial Session – Beijing Principles on the Independence of the Judiciary
“Maintaining the Effective Functioning of the Judiciary: An Accessible and Values-Based Justice System”
Sunday, 13 October 2024
The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore
I. Introduction
1. Good afternoon. Let me first extend my heartfelt congratulations to the LAWASIA team and the Malaysian Bar for putting together the 37th LAWASIA Conference. As has become customary, this conference is held in conjunction with the Conference of Chief Justices of Asia and the Pacific, and I want to thank all our friends and colleagues from Malaysia for your exceptional hospitality and the outstanding arrangements that have been made for both conferences.
2. Almost three decades ago at the 6th Conference of Chief Justices, twenty Chief Justices unanimously adopted a joint Statement of Principles of the Independence of the Judiciary, which are now more commonly known as the “Beijing Principles”. This was a remarkable achievement by our predecessors, and it has left an enduring legacy which should remind us of the tremendous value that these conferences can bring to our judicial systems and therefore also to the global legal order.
3. Unquestionably, the Beijing Principles remain as relevant today as they were three decades ago. And they will continue to be so because the existence of an independent and impartial judiciary is central to any proper conception of the rule of law.(1) But it is perhaps noteworthy that our predecessors had framed the consensus they reached in these terms:(2)
It is the conclusion of the Chief Justices and other judges of Asia and Pacific listed below that these represent the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary.
[emphasis added]
4. Those words remind us that the Beijing Principles were not intended to serve as a purely theoretical construct; instead, they were conceived with a very real and tangible object in mind. And after a generation of unprecedented change, I suggest that it might be timely for us to consider, using the words of the Beijing Principles, what other minimum standards might be necessary in order to maintain the effective functioning of the judiciary. I will in this context discuss two of the most pressing challenges that threaten the sustainability of the legal process – access to justice and the sustainability of values-based legal practice. I will explain how these challenges impact the effective functioning of the judiciary, and suggest how we might go about addressing them.
II. Access to justice
5. The challenge of access to justice can be understood using the metaphor of a “justice gap”, which refers to the disparity between the legal needs of low-income persons and the resources available to meet those needs.(3) I have previously suggested that there are three principal dimensions to the justice gap: a physical gap; a resources gap; and a literacy gap.(4)
6. It ought to be self-evident how inadequate access to justice arising from any of these aspects will impact the effective functioning of the judiciary. Indeed, it would be meaningless to speak of the functioning of the judiciary, let alone its effective functioning, if it cannot be accessed by the public, especially those most in need seeking to resolve their legal problems.
A. The global access to justice deficit
7. While the challenge of access to justice is not new, it has taken on new urgency because of two trends.
8. The first is rising inequality and extreme global poverty. In just the last two decades, the income gap between the top 10% and the bottom 50% of individuals within countries has almost doubled.(5) And in 2022, a total of 712 million people (or 9% of the world’s population) lived in extreme poverty on less than US$2.15 a day, and this number reflected an increase of 23 million people compared to just three years earlier.(6)
9. This has led to a global access to justice deficit which is borne out by some data which I reviewed in my presentation to the Chief Justices in our meeting yesterday. I will not repeat all of that material today, but in very brief terms, the surveys of the World Justice Project, one of the most respected sources of information about the state of the rule of law in the world, tell us that about two-thirds of the world’s population is living outside the protection of the law and of our justice systems; that the situation has become more critical after the pandemic; and that it has unequally and adversely affected the poorer segments of our societies.(7) This presents us with a grim picture of the state of health of the global justice system which should be of significant concern to all of us.
10. And the challenge of access to justice is exacerbated by the increasing trend of persons who represent themselves in court.(8) It is therefore essential that we take steps to ensure that all parties have a realistic opportunity to approach our courts; to commence or defend a claim, and to navigate court processes with ease, regardless of their resources or their legal literacy.(9)
B. The role of judiciary in promoting access to justice
11. I therefore suggest that the Beijing Principles might incorporate another minimum standard that is necessary to maintain the effective functioning of the judiciary, namely that the justice system must be reasonablyaccessible to all. This will require courts to adopt a paradigm shift in relation to the nature of our work. The focus of that work should not be limited only to adjudication – instead, we should embrace a broader systemic role to develop and operate a justice system that is reasonably accessible to all and that meets the needs of our societies.(10) This explains why we in Singapore have embarked on a range of measures to facilitate lay users’ access to the many dimensions of the work of the judiciary.
12. Time does not permit me to trace many of them(11) but let me mention just one, and this is our ongoing collaboration with Harvey, the start-up behind the eponymous artificial intelligence (“AI”) tool which CJ Maimun spoke of in her thoughtful opening address. We are working with Harvey to develop a platform that can help users in the Small Claims Tribunals, where legal representation is not permitted. We are exploring the potential of generative AI to assist users in framing their cases; to understand the evidence that they will need to adduce; to back up their claims or defences; to improve their understanding of the other side’s position through summarisation and translation of the materials, and to assist our tribunal magistrates to better examine and digest the evidence and the submissions.(12) The initial demonstrations have been very encouraging and we expect to launch this next year.
13. You heard earlier this afternoon a number of observations about some of the risks that inhere in AI, and I fully accept that these are risks which we must be cognisant of. These include the risk of inaccuracies, more commonly known as “hallucinations”, biases, and mistakes. As to this, I make three points. First, it surely cannot be suggested that human judges are free of these frailties. The real difference is that human judges are bound by the foundational values of any justice system, whereas AI is inanimate and amoral, unthinking and uncomprehending in a conventional sense. This suggests that we must be mindful in how we approach its use. My second point is that when we speak of the use of AI in justice systems, there is a tendency to do so in terms that suggest we are thinking of AI as a substitute for a human judge. I respectfully suggest that is not the best way to see this. Instead, we should recognise that AI can be used in a variety of settings and its abilities are not uniform across all these settings. AI today is extremely capable – perhaps even more so than humans – when it comes to things like summarising large amounts of information and data,(13) but it is likely to be less capable at giving reliable and nuanced judgments about difficult issues. We should recognise these significant and obvious differences and be bolder about harnessing the benefits of AI where we would be playing to its strengths and using it to supplement rather than to replace human judges and lawyers. And my third point is that if the statistics about the justice gap are correct, it is most acute in the context of smaller value disputes and these typically involve simpler issues with recurrent fact patterns.(14) This in fact is where AI as it stands today has the greatest potential to help those who need access to justice by empowering them with practical information and assistance that they might not otherwise have. We should therefore recognise that the vast potential of AI lies in its judicious use, by which I mean that we must understand what AI in its current state can and cannot do well, and then apply it discretely in the parts of our justice systems where it can make a real difference, such as by enhancing access to justice.
III. Sustainability of values-based legal practice
14. If the first part of my address has been about how we might better learn to live with technology, in the second part, I turn to the sustainability of values-based legal practice, which is about how we might better live with one another and in particular how we might better support our younger colleagues in their careers in the law. This is a subject that has attracted less attention, but I suggest it is another minimum standard that we should think of as necessary to maintain the effective functioning of our judiciaries.
15. We can think of this on two levels. The first is the obvious point that the administration of justice is not the exclusive preserve of the judiciary. Lawyers, as officers of the court, have a special role to play in assisting the courts in the administration of justice. Indeed, they are critical to the successful discharge of our mission.(15) And beyond this, lawyers often form a significant pipeline of talent for many of our judiciaries.(16)
A. Recent surveys and statistics
16. The “health” of the Bar therefore has an impact on the strength of the judiciary, and the quality of its work output. But recent surveys and statistics suggest that the sustainability of values-based legal practice is a growing concern, with what appears to be a rising trend of young lawyers leaving the profession. Globally, the International Bar Association in 2022 reported the results of a survey of over 3000 young lawyers, which found that within five years, half were likely to leave their current legal job, and a fifth were likely to leave the legal profession entirely.(17) In the United States, a survey of around 300 associates in large firms last year found that one in four planned to leave their firms within the year.(18) And more recently, we in Singapore received even more pessimistic results in a survey conducted among applicants at this year’s Mass Call, an annual event where most of our new lawyers for the year are called to the Bar.(19)
B. The importance of a sustainable legal profession
17. These statistics suggest that this is an issue that affects several jurisdictions. While the sustainability of values-based legal practice should, in and of itself, be of significant concern, it ought to be seen in the context of a highly competitive global market for talent. Lawyers are increasingly valued by other industries and young lawyers today have far more career options than those of my generation could ever have imagined.(20)
18. What underlies this might be the unusual situation of most workplaces today being populated by four distinct generations – the baby boomers who still largely hold sway in our profession, and those of Gen X, the Millennials and those of Gen Z. In a world that is changing so rapidly, they each bring vastly different perspectives, values and aspirations and those from one generation may not readily be aware of, much less understand, the perspectives of another generation. This can create a mismatch of expectations which can be corrosive and destabilising in the workplace, and it can contribute to the inability to retain and nurture talent due to a difference of views on what might be regarded as a sustainable or acceptable workplace environment. To put the point simply, my generation’s perspective of what work may reasonably demand is likely to be very different from that of what a young 25 year-old today might expect if for no other reason than that we grew up with far fewer other things that competed for our time and attention, and had far fewer alternative paths to earn a living.
19. Aside from this, there is also empirical research which suggests that there is good reason to inculcate sustainable practices in the workplace because this will not impede a firm’s performance but will, instead, improve it. A study of over 1.8 million employees across 73 countries detected that there was a strong positive correlation between employee wellbeing, productivity and firm performance.(21)
20. And then there is also the real concern that unsustainable practices may result in what has been referred to as “ethical fading”,(22) with high pressure work environments contributing to employees making judgments that are not in keeping with their own values and professional standards. Some of us in the room at least will still recall the famous Enron scandal from almost two decades ago when a company that had been, for six years in a row ranked as being one of the most innovative in the world, collapsed.(23) It was uncovered that widespread accounting fraud had occurred and this was attributed, at least in part, to a highly competitive and winner-take-all culture which forced employees to take greater risks and to cover up their losses.(24)
C. The work ahead
21. We should therefore consider how to inculcate sustainable practices in each of our workplaces, and I suggest that the work ahead may comprise of three broad components.(25)
22. To begin with, law firms should develop policies designed to ensure the implementation of sustainable workplace practices. This is an issue that the Ethics and Professional Standards Committee is looking into in Singapore. I convened this Committee in part from the growing realisation that the practice of law is increasingly becoming more competitive and commercialised, and hence further away from its traditional roots. To attract, retain and develop our young talent in this sort of environment, we will need to be deliberate and intentional about several aspects of the practice of law which might in the past have been left to develop organically, such as mentorship and training.
23. But these policies or strategies will not be as effective if we do not look deeper into shifting the mindsets of lawyers themselves. I suggest that we can do so by aligning expectations across generations and by reinforcing core professional values, so as to build a more resilient and purpose-driven profession. Let me elaborate briefly:
(a) First, we should determine whether the issue of mismatched expectations in the legal profession and the generation gap that I have spoken about is a reality for each of us that we need to address urgently. And to the extent it is a problem, then for the junior lawyers, it should be emphasised that a career in the law will demand a considerable amount of hard work over the long haul, especially in the formative years. But equally, for our more senior lawyers, we ought to emphasise that workplace practices have evolved over the years and there has rightly been a shift towards more sustainable and mindful practices that we should embrace. To underscore these elements, we should re-emphasise the importance of mutual trust between law firms and their employees. Young lawyers must feel adequately supported by their mentors and colleagues as they embark on their careers in the law, and they should also understand that the work they do, while demanding, is a fundamental part of their training and development. On the other hand, law firms should recognise that the wellbeing of their employees is a key priority that is likely to promote productivity, employee satisfaction and firm performance over the long term.
(b) Second, we should consider how we might more effectively communicate and instil the values that are foundational to the practice of law. It is these values which should be the main reason why young lawyers choose to enter the profession and pursue it as a lifelong commitment. This are values such as integrity, professionalism and justice, and the mission of public service that inheres and should permeate through the practice of law.(26) These are the values that are most likely to keep our younger colleagues engaged and committed to the pursuit of excellence in the practice of law.
24. I want to be clear that our younger colleagues are extremely motivated in finding what has been described as purpose-driven work. Earlier this year, Deloitte published the results of a global survey conducted among more than 22,800 young respondents to explore their attitudes towards work. An overwhelming majority of the respondents – 86% for the Millennials (those born between 1981 and 1996) and 89% for the Gen Zs (those born between 1997 and 2012) – said that having a sense of purpose is important to their overall job satisfaction and well-being.(27)
25. But against this encouraging trend of the young being drawn to purpose-driven work, there is the potentially inconsistent trend of the more financially successful law firms operating ever more like high-performing businesses than as values-based purveyors of justice. Just to illustrate the point, the New York Times recently published an article which revealed that top partners practising in certain areas in the top corporate firms in the United States are drawing annual packages that are comparable to those of NBA superstars, to the tune of USD20 million.(28) In work environments with an excessive focus on profitability and billable hours, it might be challenging for young lawyers to find mentors who are willing to take the time to teach and pass on values, and to participate in a variety of work that can instil in them the belief that they are making a meaningful contribution to the administration of justice.
IV. Conclusion
26. Let me conclude with this observation. The effective functioning of the judiciary, which is what the Beijing Principles are ultimately about, depends on the collective support of all stakeholders in a justice system, and in particular, its users and the legal profession. This has always been the case and it will continue to be so. The challenges of access to justice and the sustainability of values-based legal practice have become more urgent and will have real implications on the work we do.
27. I thank you very much for your attention and I look forward to our continuing discussion.
*I am deeply grateful to my colleagues, Assistant Registrars Wee Yen Jean and Bryan Ching, for all their assistance in the research for and preparation of this address.
(1) Sundaresh Menon CJ, “Reimagining the Rule of Law: A Renewed Conception”, speech delivered at the Conversations with the Community (20 September 2024) (“Conversations Speech”) at para 14.
(2) LAWASIA, Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region at p 8.
(3) Legal Services Corporation, “The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans” (June 2017) at p 6.
(4) See Sundaresh Menon CJ, “Technology and the Changing Face of Justice”, speech at the Negotiation and Conflict Management Group (NCMG) ADR Conference 2019 at para 11. The physical gap arises from the physical barriers that stand in the way of institutions that administer justice; the resource gap is posed by the costs of navigating the justice system; and the literacy gap stems from the lack of legal knowledge or awareness of one’s rights, responsibilities and privileges.
(5) World Inequality Lab, World Inequality Report 2022, “Executive Summary”.
(6) World Bank Group, “Poverty” (last updated on 2 April 2024): see https://www.worldbank.org/en/topic/poverty/overview.
(7) See World Justice Project, Measuring the Justice Gap: A People-Centred Assessment of Unmet Justice Needs Around the World (2019) at pp 7-8; World Justice Project, The COVID-19 Pandemic and the Global Justice Gap (2020) at p 3; World Justice Project, Dissecting the Justice Gap in 104 Countries (2023) at pp 5-6; and World Justice Project, Disparities, Vulnerability and Harnessing Data for People-Centred Justice: WJP Justice Data Graphical Report II (2023) at p 5. See also Sundaresh Menon CJ, “Judicial Responsibility in the Age of Artificial Intelligence”, keynote speech at the Inaugural Singapore-India Conference on Technology (15 April 2024) at para 22.
(8) See, for example, Christina E Cerniglia, “The Civil Self-Representation Crisis: The Need for More Data and Less Complacency” (2020) 3 Georgetown Journal on Poverty Law and Policy. See also Conversations Speech at para 24.
(9) Conversations Speech at para 25.
(10) Sundaresh Menon CJ, “The Role of the Courts in Our Society – Safeguarding Society”, opening address at Conversations with the Community (21 September 2023) at para 3.
(11) See Conversations Speech at paras 28 and 29 for examples of other recent measures in Singapore to enhance access to justice.
(12) Justice Aidan Xu @ Aedit Abdullah, Keynote Address delivered at the CIArb – IPOS IP and Tech Dispute Resolution Conference (29 August 2024) at para 12.
(13) See for example, Dave Van Veen et al, “Adapted Large Language Models Can Outperform Medical Experts in Clinical Text Summarization” (2024) 30 Nature Medicine 1134-1142.
(14) According to a 2018 global study involving 70,000 respondents, conducted by the Hague Institute for Innovation of Law, 60% of all serious legal problems fall into just five categories: family disputes; employment disputes; disagreements about land; criminal matters; and disputes between neighbours. See Hague Institute for Innovation of Law, “Understanding Justice Needs: The elephant in the courtroom” at p 15; see also Sundaresh Menon CJ, “Technology and the Changing Face of Justice”, lecture at the Negotiation and Conflict Management Group (NCMG) ADR Conference 2019 at paras 43 and 44.
(15) Attorney-General v Shahira Banu d/o Khaja Moinudeen [2024] SGHC 111 at [1].
(16) Nuno Garoupa and Tom Ginsbug, “Hybrid Judicial Career Structures: Reputation Versus Legal Tradition” (2011) 3 Journal of Legal Analysis 411 at 412.
(17) International Bar Association Legal Policy & Research Unit, IBA Young Lawyers’ Report (2022) at p 18.
(18) Tina Cohen Nicol and Kate Reder Sheikh, “To Retain Top Associates, Firms need to Put their People First”, Major, Lindsey & Africa (2023).
(19) Conversations Speech at para 31. We received a total of 234 responses, which is slightly more than half of the total number of applicants. Around two thirds of the respondents indicated that they were likely to move out of legal practice in the next five years, and slightly more than one third indicated that they were likely to leave the legal profession altogether in the same period.
(20) By way of example, it was reported earlier this year that major technology companies – including Amazon, ByteDance, OpenAI, Meta and Nvidia – had embarked on a “hiring spree” for lawyers with expertise in AI to help these companies better navigate the evolving regulatory landscape and the risks surrounding AI. See Law.com, “Tech Titans Unleash Hiring Spree for AI-Focused Lawyers” (22 March 2024), available at https://www.law.com/corpcounsel/2024/03/22/tech-titans-unleash-hiring-spree-for-ai-focused-lawyers/.
(21) Christian Krekel, George Ward and Jan-Emmanuel De Neve, “Employee wellbeing: the impact on productivity and firm performance”, CentrePiece Summer 2019, available at https://cep.lse.ac.uk/pubs/download/cp556.pdf. In a similar vein, McKinsey analysed 1,800 large companies across sectors and reported a trend that the companies who performed better and who were more resilient over the long-term were also those that prioritised their “organisational capital”, which they described as the management practices, systems and culture within each company. See McKinsey Global Institute, “Performance through people: Transforming human capital into competitive advantage” (2 February 2023), available at https://www.mckinsey.com/mgi/our-research/performance-through-people-transforming-human-capital-into-competitive-advantage.
(22) David Messick and Ann Tenbrunsel, “Ethical Fading: The Role of Self-Deception in Unethical Behaviour” (2004) 17 Social Justice Research 223.
(23) Enron had at that time been ranked by Fortune as “America’s Most Innovative Company” for six consecutive years. See Enron, Press Room, Awards and Achievements, available at https://enroncorp.com/corp/pressroom/awards/corporate.html.
(24) Joe Stephens and Peter Behr, “Enron’s Culture Fed Its Demise”, The Washington Post (27 January 2002), available at https://www.washingtonpost.com/archive/politics/2002/01/27/enrons-culture-fed-its-demise/d73cf80c-0d00-4281-848d-968683828ef9/.
(25) Conversations Speech at para 34.
(26) Sundaresh Menon CJ, “Law and Medicine: Professions of Honour, Service and Excellence”, 23rd Gordon Arthur Ransome Oration at the Opening Ceremony of the 51th Singapore-Malaysia Congress of Medicine (21 July 2017).
(27) The Deloitte 2024 Gen Z and Millennial Survey: Living and Working with Purpose in a Transforming World at p 10, available at https://www.deloitte.com/content/dam/assets-shared/docs/campaigns/2024/deloitte-2024-genz-millennial-survey.pdf?dlva=1. About 4 in 10 indicated that they had turned down an employer based on their personal ethics or beliefs.
(28) Maureen Farrell and Anupreeta Das, “Pay for Lawyers Is So High People Are Comparing It to the N.B.A” (1 July 2024), The New York Times, available at https://www.nytimes.com/2024/07/01/business/law-firm-pay-salary.html.
2024/10/18
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