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Courting diversity?

Singapore has appointed its first woman judge to the Court of Appeal. There are more women judges now. But might the Bench benefit from even more diversity - such as more senior talent from the Bar, rather than the public and academic spheres?

The appointment last month of Singapore's first woman as a permanent judge of the Court of Appeal, Justice Judith Prakash, comes at a time when the United Kingdom is poised for a shake-up to ensure gender equality on the Bench.

In Britain, there appears to be only one woman on the Supreme Court of 12 justices, and just eight out of 38 appeal court judges are women.

Last October, the Lord Chief Justice, Lord Thomas of Cwmgiedd, was reported to have said that "too few" women lawyers reached the top of the UK's judiciary and called for a diverse judiciary that was important to both public confidence and fairness.

Here in Singapore, Justice Prakash's elevation from the High Court to a Judge of Appeal of the Supreme Court comes some 50 years after the late Jenny Lau Buong Bee was made Singapore's first woman district judge.

And it is 25 years after Justice Lai Siu Chiu, now retired and reappointed as a senior judge, became the first female Supreme Court Judge here.

Given that Justice Prakash was first appointed as a judicial commissioner in 1992, and a High Court judge in 1995 - and furthermore, has sat as an occasional judge in the Court of Appeal since 2002 and more frequently for the past two years - it might be argued that she could have been appointed to the Court of Appeal earlier.


ST ILLUSTRATION: MIEL

MORE WOMEN JUDGES APPOINTED

During her career, Justice Prakash has specialised in complex commercial cases, arbitration, company and trust law. Before becoming a judge, she was in practice for 18 years.

One case that many remember her for was in 2004 involving breach of contract. Justice Prakash, who sat as a judge in the Court of Appeal alongside Justice Chao Hick Tin, together with the latter outvoted then Chief Justice Yong Pung How who had dissented, and allowed the appeal of Asia Hotel Investments against Starwood Asia Pacific Management.

While she is married with grown-up children, the high-flier nevertheless remarked at a 2014 Singapore Management University forum about women and career success, titled Can Women Lawyers Have it All?: "If you don't want to have children, you can go as far as any man can go because the law can be such a demanding mistress, whether you are a litigator or not.

"If you want to have children, then you have to give up a little bit of your career. You might have to move to a different area of practice that makes fewer demands on you, or you limit the number of children that you have."

The issue of representation of women in the judiciary amid the juggling act of family demands has reared its head in Britain, where The Times of London reported that the Supreme Court there is set to overhaul its system of judicial appointments. Women candidates are tipped to fill the post of chief justice and president of the Supreme Court when they are vacant next year.

However, gender equality in the judiciary here, it would seem, is not such a burning issue as in the UK, given that more women judges are now fast emerging. Five female judges have been appointed to the Supreme Court in the last two years - including the latest due next month - compared with only three women judges in the 23 years prior to 2014.

Furthermore, together with last month's announcement of Justice Prakash's rise to the apex court, two new judicial commissioners were named and include a woman: Ms Audrey Lim, who is deputy chief legislative counsel in the Attorney-General's Chambers (AGC). A judicial commissioner has the powers of a High Court judge and is appointed for a specific period determined by the President.

The latest appointments will take effect next month.

BAR'S LIMITED PRESENCE

Justice Prakash's "first woman" achievement, while a landmark in itself, prompts a further question: Is there a need for greater diversity in Singapore's judicial composition?

For example, Ms Lim's fellow appointee is Mr Pang Khang Chau, who is also from the AGC. Is the talent pool from which to select judges, especially from the Bar - practising lawyers who appear in court or are involved in litigation work - too limited?

Since Justice Vinodh Coomaraswamy, then a partner in law firm Shook Lin & Bok, was appointed to the Bench in 2012, out of 12 subsequent Bench appointments, only one hailed from the Bar. This is Judicial Commissioner Kannan Ramesh, previously managing partner at law firm Tan Kok Quan Partnership, where he specialised in dispute resolution, insolvency and restructuring, and international arbitration. Three others, being from the corporate side, are not from the Bar, and one has returned to practice. Two others are from academia and another, Judicial Commissioner Chua Lee Ming, was general counsel at GIC before he joined the Bench. The rest are from the public sector.

Needless to say, all are legal luminaries with distinguished backgrounds. Indeed, Chief Justice Sundaresh Menon, as president of the Legal Service Commission, said in its 2014 annual report issued in July last year that "...the Legal Service now constitutes an unprecedented pool of legal talent, not just in depth but also in diversity".

Still, the UK system, with its learned and long heritage, is clearly troubled by the issue of diversity, going by the recent moves there.

In Singapore's context, however, it is arguable whether judges coming from either the public or private sector makes a difference, and how this background might even manifest itself, such as in the content of the judgments.

Lawyers do point out, though, that many judges in other developed Commonwealth jurisdictions hail from the practising Bar, with the wide-ranging experience it provides.

A practising senior lawyer said: "Of course there is a big difference. A judge from the Bar would be exposed to the humane and commercial realities, instead of (one) from a cloistered environment, intellectual brilliance not withstanding."

Perhaps one perception is that the limited pool of sufficiently senior talent at the Bar may be a constraint, as getting more from there may also weaken its ranks.

The brighter legal minds who thrive on the corporate side of the job, meanwhile, have less incentive to join the Bench than those at the Bar. Compared with the often thrilling cut and thrust of corporate work or litigation, life on the Bench is relatively "cloistered", to use the senior lawyer's term. Also, there are fewer personal opportunities, such as landing board directorships.

If anything, the new appointments should be seen as a challenge to the Bar to strengthen its ranks, as an outstanding roll of practising lawyers with an increased and vigorous membership will mean less reason to look elsewhere for potential candidates.

A version of this article appeared in the print edition of The Straits Times on July 21, 2016, with the headline 'Courting diversity?'. Print Edition | Subscribe