Chief Justice Sundaresh Menon: Speech delivered at Conversations with the Community on 20 September 2024

3.     My address today is structured in two parts. 

A.     Issues that threaten the sustainability of the legal process

23.     To begin with, the first set of dramatic challenges that will affect our work are issues that threaten the sustainability of the legal process. There are several challenges in this regard, such as the increasing complexity of disputes, but I will focus on two in particular – access to justice and the sustainability of the legal profession. As I mentioned earlier, these challenges invite us to rethink our traditional conception of the rule of law to account for the distinct and evolving needs of our court users, as well as the reasonable needs, aspirations and expectations of our younger colleagues in the legal profession. I highlight the latter point because this is critical to ensure the long-term sustainability and future of the legal profession. 

i.   Access to justice

24.     Let me begin with access to justice, which stands as one of the most pressing challenges affecting the sustainability of the legal process.⁽³³⁾ While it has long been a challenge, the need to address it has become more urgent due to a “new normal”, where a significant component of our actual and potential court users are self-represented persons. There are various reasons for this and they include the cost of legal representation; the manner in which we have designed some of our specialist courts and tribunals where the participation of lawyers is limited or restricted; and the broader trend of lay persons becoming more confident of representing themselves due to the democratisation of knowledge and technology.

25.     In this “new normal”, we must ensure that all parties, and especially self-represented persons, have a realistic opportunity to commence or defend a claim, and a fair shot at presenting their case, regardless of their resources or legal literacy. Our justice system must not become the exclusive preserve of a select few, because the sustainability of the legal process rests on a shared societal commitment to the rule of law, and this in turn requires the public to trust that the courts will deliver justice for all and especially for those most in need.

26.     The need to promote access to justice therefore lies at the heart of the courts’ broader systemic role. And as we go about this important work, we should reimagine our conception of the rule of law by placing greater emphasis on certain procedural aspects of the rule of law. These are values which have historically received less attention than the formal and substantive aspects of the rule of law, and I suggest three in particular:

(a) First, contextuality.⁽³⁴⁾ The appropriateness of the procedure that governs the dispute must be assessed against its context, by which I mean its size, nature and complexity. 

(b) Second, proportionality.⁽³⁵⁾ This refers to the idea that even among cases within the same broad context, we should consider tailoring and structuring the complexity of the legal processes to the complexity of the dispute. We must not be fixated with the fallacy that the pursuit of justice always requires an exhaustive search for the truth. The effort that is applied to this end should be informed by the extent and importance of what is at stake. There is a plain and obvious difference between a small civil claim and a criminal case affecting one’s liberty, for instance.

(c) And third, accessibility.⁽³⁶⁾ This focuses on the need to ensure that the procedural architecture of our courts facilitates effective access by members of the public, and we can advance this by providing our users with practical assistance.⁽³⁷⁾

27.     These are values which I outlined and discussed in a lecture delivered to the arbitration community some years ago during the pandemic, and I will not repeat all the details of what I said then. But I do reiterate the point that while fairness is the foundational procedural norm that we all should strive towards, these three values – contextuality, proportionality and accessibility – are important second-order considerations that those of us who operate the justice system should embrace in pursuing procedural reform, just as much as those in the arbitration community to whom my remarks were directed. Of course, none of these values are new to us. Indeed, since the first session of this series last year, our courts have embarked on further initiatives which are directed towards these basic values. 

28.     To begin with, we have implemented changes at the structural level by developing simpler procedural frameworks for certain types of cases. For example, the “general simplified proceedings” which have been available in the Magistrates’ Courts since 2014 were extended to the District Courts last December as long as the parties agree to this.⁽³⁸⁾ Under this framework, parties do not have to go through the process of production of documents, which is often costly and time-consuming, and the system is also designed to facilitate the settling of disputes through mediation. And just two months ago, our High Court launched the Express Track scheme to facilitate the expeditious resolution of certain civil matters that can be resolved within four days of trial.⁽³⁹⁾ Some notable features of this new framework include the mandatory production of documents contained in the pleadings and the disposal of interlocutory applications through a single application and without the necessity for oral arguments.

29.     Beyond these changes to our procedural regimes, we have also worked on numerous initiatives to further fulfil our “assistive responsibility” to our users. Central to this effort has been the work of our Access to Justice (or “A2J”) Programme Office and the Office of Transformation and Innovation (or “OTI”). In respect of the A2J Programme Office, it has already completed 14 projects since it was established less than 2 years ago, such as the “Digital Guided Questionnaire” that I spoke about last year, which provides users of the judiciary’s website with relevant practical information based on their responses to a short series of questions.⁽⁴⁰⁾ This questionnaire has been very well received and we are considering replicating it in other areas. And in respect of the OTI, it has been closely involved in various projects such as the ongoing collaboration with Harvey, the AI start-up behind the eponymous tool, to assist users in the Small Claims Tribunal as they navigate the legal process.

(a)   First, we should consider whether there is an issue of mismatched expectations in the legal profession, and a generation gap that needs to be addressed urgently. On the part of junior lawyers, it may need to be emphasised to them that a career in the law demands a considerable amount of hard work over the long haul, and especially in the formative years where there is undoubtedly a steep learning curve.⁽⁴⁶⁾ But equally, we may need to convey to our senior lawyers that workplace practices have evolved over the years, and there has rightly been a shift towards more sustainable and mindful practices which the profession as a whole should embrace. To underscore both these elements, we may need to re-emphasise the importance of mutual trust between law firms and their employees, with due regard for the wellbeing of our junior colleagues while recognising that this need not impede effective performance, and indeed over the long term, will likely enhance employee satisfaction and productivity. 

36.     I will elaborate on this need for collaboration later in my address, but let me first highlight two such threats and explain how they have already given rise to new and often complex legal issues that transcend jurisdictional boundaries. 

i.   Technology

37.     The first is that posed by the rapid advancements in technology, particularly in artificial intelligence (or “AI”). Let me acknowledge at the outset that AI can potentially be a real force for public good. I have spoken on previous occasions about the vital role that AI can play in the legal process, such as by promoting access to justice.⁽⁴⁹⁾ But as cautioned by Professor Geoffrey Hinton, often described as the “Godfather of AI”, there are significant risks posed by AI and these include the possibility of more unemployment, the proliferation of misinformation, and even the potential of existential collapse, if and when AI reaches a stage where it operates beyond human control or understanding and is capable of making independent decisions.⁽⁵⁰⁾

38.     Against this backdrop, courts will increasingly be called upon to adjudicate on cases involving AI-related issues, particularly when harm is caused. It may be noted that many countries, including Singapore, have necessarily taken a cautious approach to regulating AI,⁽⁵¹⁾ and, as a result, legislation may not provide an answer to some of these legal issues. In these circumstances, the courts may sometime be called upon first to determine whether existing doctrines and principles in the common law can be relied upon effectively, or whether there is a need to reconsider them or even develop new ones. 

39.     Indeed, AI has already given rise to a host of legal issues across various areas of the law. For example, in the field of intellectual property, courts across the world have considered issues such as whether AI-generated output can receive patent or copyright protection,⁽⁵²⁾ and whether the training and use of AI systems infringes the intellectual property rights of others. AI-related issues are also emerging in tort law. For example, earlier this year, a tribunal in Canada held that an airline was liable to a passenger in the tort of negligent misrepresentation for inaccurate information provided by its chatbot.⁽⁵³⁾ We are also likely to face issues arising from the imposition of liability for accidents involving autonomous vehicles, including questions of who should be held liable and the standards to which they should be held.⁽⁵⁴⁾

40.     And we are barely scratching the surface with these issues. While what we have today is AI that is focused on the execution of a specific task or area (what has been referred to as “narrow” AI), some experts predict that by the end of the decade, we are likely to see AI that is capable of performing a wider range of tasks at a level comparable to or even exceeding human performance.⁽⁵⁵⁾ In recent years, we have already begun to see AI make significant breakthroughs in areas involving deep human intuition⁽⁵⁶⁾ and on some of the hardest problems across the sciences.⁽⁵⁷⁾ For example, just two months ago at the International Mathematical Olympiad, widely regarded as the most prestigious mathematical competition in the world for students and that features some of the most complex problems, AI accomplished what has been described as a “massive breakthrough” by performing at the top end of the silver medal standard, just one point shy of the gold medal threshold.⁽⁵⁸⁾ And just last week, OpenAI released o1, the first of a new series of AI models that have developed reasoning abilities and which are said to be more accurate and more capable of solving complex tasks than previous models.⁽⁵⁹⁾ These tools will not be equally accessible to all and so they threaten to open the way to new types of inequality. And if AI continues on its path of exponential growth, this might mean that AI may one day come to be seen not just as an agent but as an autonomous entity and actor that can enter into obligations and incur liability on its own, and this will likely give rise to yet more complex issues that we will have to grapple with.

42.     The widely accepted scientific evidence, coupled with the need for urgent action, will inevitably lead to legal disputes that come before the courts, such as those that seek to hold public and private entities accountable for their active contributions to climate damage or their passive failure to mitigate it. We have already seen a sharp rise in climate litigation globally. Reports indicate that the number of cases around the world has more than doubled in the last five years,⁽⁶²⁾ and just in the last few months alone, we have seen important decisions such as the decision of the Supreme Court of New Zealand in Smith v Fonterra which was mentioned by Justice Philip Jeyaretnam at the previous session of this series of “Conversations”.⁽⁶³⁾ Smith v Fonterra is a noteworthy decision because it involved a claim in tort based on public nuisance, negligence and a novel “climate system damage tort”. In the context of a striking out application, the Supreme Court of New Zealand held that the plaintiff’s claim should proceed to trial. The eventual outcome of this case may, I suggest, hold significant implications across the common law world, particularly as it pertains to a branch of private law that is essentially judge-made. The interface between tort law and climate change is likely to give rise to new and complex legal issues, such as those relating to standing, proof of damages and causation and that raises an even more fundamental question as to whether the conventional models of justice and dispute resolution are well-suited to this field, or whether we should be looking at other models such as the application of some variant of therapeutic justice that we have developed in the context of family proceedings. To better serve the needs of users in different contexts, we may need to explore differentiated or bespoke models of justice that would entail first, identifying the specific stakeholders in a given area of law, then recognising their likely goals and interests, and finally, developing an appropriate procedural framework and overarching judicial approach with those considerations in mind.⁽⁶⁴⁾

43.     Of course, the climate- and environment-related disputes that come before domestic courts will invariably reflect the specific areas that require judicial intervention, and this will differ across jurisdictions. In Singapore, it is unlikely in the foreseeable future that our courts will need to intervene in the public law space to the same extent that some other courts have done, and this is so because of the strong and proactive leadership of the executive branch in mitigating and adapting to climate change. This can be seen, for instance, in the multi-ministry Singapore Green Plan 2030, which charts ambitious and concrete targets for Singapore to be a low-carbon leader in the region. Singapore, as a member of ASEAN,⁽⁶⁵⁾ has also proactively engaged in cooperative efforts on environmental issues to promote sustainable development.⁽⁶⁶⁾ That said, we could see claims and issues in private law such as tort law, to address the harms caused by defendants who are based within Singapore and who through their corporate vehicles contribute to climate damage in the region. 

iii.   Mounting a coherent response to global threats

44.     Climate change and technology are, of course, not the only global threats affecting all of humanity, as we have seen from recent incidents such as the COVID-19 and more recent mpox outbreaks, and the CrowdStrike IT outage two months ago. These other threats include global health pandemics, cybersecurity issues and especially those arising from the profound impact of quantum computing, geopolitical shifts, and the ongoing phenomenon of truth decay. Together, these threats have coalesced to form a “perfect long storm” of challenges that are complex and lasting and that will have a direct impact on our work, to borrow an expression first used by President Tharman.⁽⁶⁷⁾ 

45.     In these circumstances, I suggest there is a need to refresh our conception of the rule of law – one that transcends the focus on individual states and their citizens, and that embraces the value of coherence as one of the basic values of the rule of law. What coherence envisages is that legal systems – including judiciaries – should see themselves as part of a larger transnational system of justice and strive to take broadly coherent positions not only in areas of transnational commercial law,⁽⁶⁸⁾ but also when responding to these new and emerging legal issues that have the potential to adversely impact humanity as a whole. 

46.     To be clear, I am not suggesting that courts should be at the forefront in addressing these issues. Indeed, consistent with the principle of judicial modesty that I discussed last year, the most effective response to certain issues may not come from the courts, and this tends to be especially true for issues involving polycentric social, economic and political questions.⁽⁶⁹⁾ But we should not underestimate the great potential of the common law to respond to emerging issues and challenges in an innovative and yet principled manner, particularly in areas of private law such as tort and contract. This is amply demonstrated by the iterative and incremental development of legal principles throughout the history of the common law, with one prominent example from our own jurisdiction being the ACB v Thomson Medical case. There, in the context of a mix-up during an in-vitro fertilisation procedure that resulted in the use of sperm from a third party instead of the intended father, our Court of Appeal developed a novel concept of the “loss of genetic affinity” and recognised this as a distinct head of damage.⁽⁷⁰⁾ 

47.     Let me also be clear that the value of coherence does not mean that all courts should adopt uniform responses. It cannot be so because, as I have said, I see coherence as a third-order consideration that does not override the paramount objective of any court – which is to deliver substantive justice in the cases that come before it. The reality is that our justice systems are shaped by, and operate within, cultural, political and social conditions that are unique to our own country. This affects not just the laws that we apply, but at a more conceptual level, also our judicial philosophy. However, where possible, courts should strive to achieve meaningful convergence. And even in those instances where courts adopt differing stances on legal issues with a transnational character, they should do with a broad understanding of how their decisions cohere within the larger transnational system, and after they are satisfied that there are principled reasons for adopting a different position from other jurisdictions. 

48.     In this way, by promoting the value of coherence, courts can advance other key values that I mentioned earlier, such as clarity, consistency and predictability. These values are especially important for facilitating international commerce by reducing uncertainty and costs and reducing the incentive for parties to engage in forum shopping. But more fundamentally, such convergence is likely to result in more effective responses to the common threats that affect us all, since as the Secretary-General of the United Nations has said, “global challenges require global solutions”.⁽⁷¹⁾ And all of this is likely to result in a stronger and more reliable global legal framework that is better equipped to handle the complex challenges of our interconnected world. 

49.     How then can courts promote the value of coherence? In the past, this would have been primarily through our judgments, with the traditional view that they “speak for themselves”. But this needs to be revisited and I suggest we can take this on two levels. First, in terms of our mindset, we should be more open to developments in the laws in other jurisdictions, including those with different legal traditions such as civil law systems, because of the need to strive towards global solutions in the areas that I have just highlighted. Second, given the urgency of the global challenges that we face, we need to make an intentional effort to engage with our counterparts in other jurisdictions. And we need to do so in a way that would better equip us to address these issues when we are forced to encounter them in our courtrooms, by thinking ahead about them constructively and collaboratively with our counterparts and where appropriate, with input from policy-makers.

50.     We should therefore promote what I have referred to as judicial diplomacy, by which I refer to exchanges and collaborations between courts in different jurisdictions, in a manner that is structured and intentional.⁽⁷²⁾ This is one of the key areas that I have sought to develop during my tenure as Chief Justice, to promote a better understanding of the critical issues we all face, to enable us to learn from one another, and to foster the possibility of developing broadly coherent responses. Apart from bilateral annual roundtables with key jurisdictions such as China and India, our Judiciary has taken the lead in organising various forums and I highlight just three examples:

(a)   First, the Meeting of Chief Justices and Judges in Charge of Technology. We recently convened the second meeting virtually to discuss the interface between technology and our justice systems, and one initiative that we are exploring with our counterparts is the development of a joint AI Governance Framework to regulate the use of AI in our courts. 

(b)   Second, the Judicial Roundtable on the Future of Justice. Together with my colleague on the Singapore International Commercial Court, Justice Anselmo Reyes, we convene a biennial roundtable where judges, academics and policy-makers can engage in a frank discussion on emerging issues affecting the justice system. We recently held the 4th Roundtable in Durham University and will be publishing a book entitled “The Future of Justice: AI, Big Data, the Environment and the Courts” next year, which captures the development of the ideas exchanged and the discussions that took place in Durham. 

(c)   And third, the Masterclass Programme for Commercial Judges in Asia, which we co-organised with the Supreme Court of Indonesia just a week ago. The inaugural run successfully took place just last week and it featured a deep dive of cutting-edge issues in commercial law with more than 60 judges from 16 jurisdictions coming together over four days of intensive learning.

IV.     Conclusion

51.     Allow me to conclude by returning to Lord Bingham’s description of the rule of law which he advanced more than a decade ago: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.⁽⁷³⁾ In the light of the points that I have discussed today, I respectfully suggest that we in Singapore might reframe this by supplementing it with the words, “through practices and processes designed to enhance access to justice and with the support of a sustainable legal profession.” And reflecting its status as a third-order principle, I would add that courts should aim for coherence by thoughtfully considering developments in other jurisdictions that concern legal issues affecting transnational commerce or relating to global challenges that impact humanity as a whole. Let me be clear that this is not intended to take anything away from Lord Bingham’s description, which he had cautioned was not intended to be comprehensive, and which undoubtedly captures and emphasises vital components of the rule of law that are familiar to all of us and that continue to be relevant.⁽⁷⁴⁾ But as I have sought to explain today, there is a need, at least for us in Singapore, to refresh that traditional conception from one that was centrally concerned with constraining the excesses of power, to one that also takes due account of challenges that undermine the sustainability of the legal process, and threats that affect all of humanity. We can move in this direction by embracing values such as accessibility, proportionality, contextuality and coherence, and ensuring that legal practice is kept sustainable. 

52.     And there is a more fundamental point to all of this, which is that our responses to these challenges will have a direct impact on the level of trust and confidence in our courts, on the courts’ legitimacy, and therefore on the continued relevance of the rule of law to future generations of Singaporeans. 

53.     Let me close by expressing my deepest gratitude to all the judges, moderators and speakers who have so generously dedicated their time and expertise to each of the seven sessions that we have had. I also record my heartfelt appreciation to the three law schools that hosted the sessions, and to our Chief Communications Officer, Patrick Nathan, and his entire team, for the tremendous amount of work that has gone into organising these events. Finally, I thank you, the audience. This series of “Conversations” was intended to provide a platform for the Judiciary to engage the broader community on topical issues and to exchange thoughts and perspectives, and this would not have been possible without your keen participation and support. Thank you very much, and I look forward to the discussion that is to follow.