Useless rantings of a few disgruntled S'poreans...: Cynicism and corruption

Saturday, June 02, 2007

Cynicism and corruption

I would just like to add that what PJ said would still be largely true if UK and most other western European countries are used as a comparison.

Are the judiciary corrupted in these countries?

Cynicism and corruption

Even Indian PM has talked about sorry state of judiciary there
k shanmugam

In his article "Of Champs, Chumps and Chimps" published in the May issue of the Law Gazette and which was reported in Today, Mr Philip Jeyaretnam, the president of the Law Society, has taken issue with Singapore's approach to public sector remuneration, and in particular the remuneration of judges.

Mr Jeyaretnam makes a number of points, including the following: That it is regrettable that Singapore has shifted from a system of rewarding "contribution to government" to a system where public sector salaries are correlated to private sector salaries; and that the very best of the high flyers in the private sector (whose incomes are considered for the public-private sector income correlation) may often owe their success to luck or an aura acquired as a result of market imperfections, rather than superior ability.

Mr Jeyaretnam makes his points elegantly. But the elegant language masks some fundamental flaws in reasoning.

Take his first point that Singapore has shifted from one system, which he refers to as "rewarding contribution to government", to another system, which can be referred to as "referencing public sector income to private sector income".

When one analyses the two (supposedly contrasting) "systems", one point emerges: the first concept ("rewarding contribution") is the objective to be achieved.

The second concept ("referencing public sector income to private sector income") is the method by which that objective is to be achieved. Mr Jeyaretnam has possibly confused the objective with the method of achieving that objective.

BASIC ERROR

And this basic error has (in my view) led Mr Jeyaretnam to posit the two concepts as being different approaches to compensation. And based on that erroneous premise, Mr Jeyaretnam makes his other points.

The question is not whether public servants need to be properly remunerated. Most sensible people accept that that should be done.

The real question is what amounts to "proper remuneration" and how that remuneration should be quantified. That is the question that many countries are faced with; and several take the politically easy way of not dealing with it and allow their public service to slowly atrophy.

The recent parliamentary debate in Singapore centred on that question. Mr Jeyaretnam does not himself clearly explain how he believes the "reward" for contribution to government should be quantified.

The only clues offered by him on this topic are first, a reference to how judges in India are remunerated, and second, his criticism of what he sees as the shift in values from service to an emphasis on financial remuneration, in Singapore.

As regards the first of these two points, it is not clear if Mr Jeyaretnam is seriously suggesting that the system of remuneration in place for the Indian judiciary is a model for Singapore to follow. It is difficult to believe that he is in fact suggesting that.

Post-independence, Indians were justifiably proud of the Indian judiciary. But neglect of basic service conditions by successive governments has affected that institution. The salaries of judges in India are now at unrealistically low levels.

For example, according to a December 2006 brochure on pay produced by the Indian government, a Chief Justice in a metropolis like New Delhi earned about $2,000 per month in 2005.

The consequences of the low official pay have been entirely predictable. It has resulted in widespread cynicism among Indians, about the Indian judiciary.

The system also suffers a backlog of thousands of cases that have been pending for years.

It is not for us to comment on the judiciary of another country. But it is relevant to note the views of serious and responsible people in India who have commented on the Indian judiciary. There are numerous studies and papers on the issues that affect the standing of the Indian judiciary. A quick search will throw up several of these.

The India Corruption Study to Improve Governance by the country's Centre for Media Studies in 2005 had the following statistics and conclusions: 80 per cent of the respondents to the study (who had interacted with the judiciary) believed that there was corruption in the judiciary: A bribe for a favourable judgment was on average about $85; total corruption in the judiciary was estimated at $1 billion; the judicial system was highly dilatory, expensive and beyond the reach of the common man; ordinary citizens found it hard to seek redress inter alia because of the corruption; and arrest warrants could be issued against anyone, by paying the officials.

It is instructive also to refer to the comments made by two of the highest office holders in India.

In 2002, Mr Sam Piroj Bharucha, when he was Chief Justice of India, was quoted by The Times of India as saying that up to 20 per cent of the Judges in India were corrupt.

And the Prime Minister of India, Dr Manmohan Singh, stated, as late as last year, that service conditions had to be improved in the judiciary "to be able to attract better talent" and that corruption in the judiciary had to be tackled.

To suggest that a country's judges are corrupt is to strike at the very heart and soul of the judicial system in that country. In fact, in common law jurisdictions, making such a statement would by itself attract severe punishment by the courts, because such statements, by impugning the judiciary, would lead to an erosion of public confidence.

IS INDIA THE BEST MODEL?

In India, it is an offence to allege that a judge is corrupt. (It is also an offence in Singapore). Thus, it would be unthinkable for anyone to accuse judges of being corrupt. Obviously the situation in India had gone well beyond that point, and has reached a stage where the Prime Minister and a Chief Justice themselves felt compelled to publicly state the unthinkable.

The point is not whether the judiciary was or is in fact corrupt. Rather, the point is that people appear to believe that it has become corrupt. A proud and distinguished institution in India has come to be perceived in this way because of official neglect of service conditions, resulting in low pay.

Government after government, did not ensure that judicial remuneration kept pace with social and economic developments; and there was a tolerance of corruption.

The result is that today the Indian judiciary is not the institution it once was. This has happened despite the fact that it had and continues to have many brilliant and gifted judges of unimpeachable character, who were and are prepared to do their duty, despite the low pay and poor service conditions.

Given the brilliance of lawyers in India, the Indian judicial system could have been among the finest in the Common Law world.

Given that this is the current reality of the Indian judicial system, it will be pure sophistry to suggest that Singapore should follow the Indian model of remunerating judges. It would be surprising if that is what Mr Jeyaretnam was suggesting.

That leaves one to wonder what point he was in fact making when he, in his article, referred (with some approval) to how Indian judges were remunerated and quoted the views of the unnamed daughter of an ex Supreme Court judge.

The second clue as to what Mr Jeyaretnam might be suggesting, as a way of remunerating public officers, is perhaps in the last paragraph of his article. He says that service and significance of contribution should themselves be valued rather than valuing success in monetary terms.

Most people will readily agree that service in the public sector should not be valued solely in monetary terms. But that does not detract from the point that public servants, including judges, should be properly remunerated.

Their remuneration must take into account the society they live in; the standard of living that they can reasonably aspire to (given that they would have the intellectual ability to succeed in the private sector); and the incomes their peers earn in the private sector. The salary that a society fixes for a judicial position is itself an indication of the esteem attached to that position.

In this context, it is very illustrative to note the views of Lord Philips of Worth Matravers, the current Lord Chief Justice of England and Wales, about the remuneration of senior judicial officers in England and Wales.

In a letter written in October 2005 in the context of a major review of judicial salary structure in the UK, Lord Philips said: "The fact remains that the recruitment of sufficient candidates of appropriate calibre for the High Court Bench continues to present problems, particularly where candidates are sought from specialised areas of the law in which professional earnings are traditionally high …

"I am aware of at least three commercial practitioners who have in the recent past expressly declined an offer of appointment … On any showing, the gulf between pre-appointment and post-appointment earnings at High Court level remains dispiritingly large and the same is true at Senior Circuit judge level …

"We venture to suggest that most High Court judges are likely to be of a calibre that, had they pursued careers in the private commercial or industrial sector, they would unquestionably have commanded main board posts by the equivalent stage of their career.

"There is now real concern that removal or dilution of the perceived attraction of the judicial pension scheme will prove the last straw in the struggle to persuade practitioners to accept such a steep drop in income as is inevitably involved in appointment to a senior judicial post.

"Furthermore it must be remembered that the remuneration paid to the holders of public office contributes in part to the esteem in which that office is held. A post which is perceived to be seriously undervalued will in time lose its attraction amongst the most able candidates".

England has an incomparably long and rich legal tradition. English judges are held in the highest regard and esteem both within the UK and internationally. They are knighted when they become High Court judges.

The judicial appointment in England is seen and acknowledged as the capstone of a brilliant legal career. Yet, even in England, as Lord Philips comments, the "champions" who were in the highest paying sectors were becoming increasingly reluctant to accept judicial appointments because of the disparity in income.

Lord Philips is not the only Chief Justice of a major common law jurisdiction to have discussed the issue of judicial pay and the disparity of incomes when compared with the private sector.

In his 2006 year-end report on the Federal Judiciary, Chief Justice John Roberts of the United States referred to the low pay of American Federal Court judges, and he strongly criticised Congress for its inaction.

One of Chief Justice Roberts' main concerns was the fact that judicial salaries had fallen far below private sector salaries for lawyers.

STRIKING THE RIGHT BALANCE

He added that it changes the nature of the federal judiciary when judges are no longer drawn from among the best lawyers in the practising bar. He said that a pay rise would be unpopular but also pointed out that Congress had a duty, indeed a constitutional responsibility, to make a decision which even if unpopular, is necessary to promote the long term good.

The Chief Justice pointed out that if salaries were not competitive, the judiciary will not attract the right calibre of judges. The point is fairly straightforward. It is unrealistic to suggest that private sector remuneration would be irrelevant when the best in the private sector are asked to accept public appointments. The views expressed by the two Chief Justices show that we have to try and strike the right balance between valuing the contribution to society through public service, and paying reasonably for that service. It is instructive, in this respect to look at some real situations.

In 1990, our judges were paid a little less than about $500,000 per annum. If salaries had not been adjusted, that sum would be about 10 per cent of the income of the highest earners in the profession in 2005, according to the figures reported by the Auditor-General, and cited by Minister-in-Charge of the Civil Service Teo Chee Hean in Parliament on April 9.

Is that the right balance between what valuing service and paying an adequate remuneration?

If the judge's remuneration had remained at that level, then no amount of fancy verbiage will mask the fact that our society would be perceived as not valuing the contributions of judges.

Is it realistic to believe that the best in the profession can be persuaded to become judges on the reasoning (to use Mr Jeyaretnam's words) that they should be happy that their time on earth has been spent on service and should therefore accept a 90 per cent pay cut? There will be some who will do so. But there will also be others who may not be persuaded to do so, and it will not be unreasonable for them to decline to go into public service. Society will then be the poorer for it, because it would have failed to get enough of the best into public service.

After the latest salary revisions, it is likely that a High Court Judge in Singapore will earn less than 45 per cent of the 2005 median income of the highest earners in the profession. If 2006 incomes are considered then the percentage is likely to be lower. Does that suggest that we are moving to a system where only money is valued and service is disregarded?

It is true that if the correlation is made to the top earners in the legal profession, then it is likely that only some of those appointed as Judges will have to make a financial sacrifice. For others, it may represent a marginal change in income or an increase in income. But in my view, that situation is preferable to one where the salaries are so low that many of the highest earners may decline the appointment.

TRUST THE MARKET

That leaves me to deal with Mr Jeyaretnam's final point, that the market may be imperfect in selecting champions. Champions, in his view, become champions, because of luck and an aura of success. Perhaps so – market selection may be imperfect. And people on the rung below the champions may also feel (sometimes legitimately) that the market has been imperfect in selecting the champions. But on the whole there is a lot of sense in respecting the market's selections.

Lawyers, particularly commercial lawyers in Singapore, deal with sophisticated clients who often have large in house legal teams. When market selection takes place over a period of time, in a sophisticated legal environment, by knowledgeable clients, it is not only luck, chance and an aura that contribute to success.

Should we as a society seek to attract at least some of these "champions" into the public sector? The answer would appear to be obvious, from two perspectives (both of which were stated by Lord Philips in his letter, referred to earlier). If the most successful lawyers do not want to accept judicial appointments, then that would impact on the quality of the judiciary; and if judicial appointment is not valued by the best lawyers, over time, that appointment will be seriously undervalued.

It is difficult to overstate the importance of making sure that our judges are of the highest quality. Our High Court judges must be comparable in quality to those at the very top of the profession. The decisions of judges affect lives, liberty and commerce. Their decisions on commercial matters will have a huge impact on the business sector.

When MNCs invest billions in Singapore, they take into account the quality of the judicial system that is available. Judicial decisions that are not consonant with commercial trends will severely affect the business environment. A first rate judiciary is one of the key essentials for a commercial centre like Singapore to thrive.

We should therefore seek to attract the best lawyers onto the Bench by, inter alia, having sensible remuneration policies. That is preferable to questioning whether the market is an accurate guide as to who are the best lawyers and suggesting that it is not necessary to attract onto the Bench those lawyers.

Mr K Shanmugam is a Senior Counsel, a partner at law firm Allen & Gledhill and a PAP Member of Parliament.