The Singapore Law Gazette

Young Independent Counsel: Developing the Advocate, Assisting the Court

If you have ever wondered what the Young Independent Counsel (YIC) scheme is about, Justice Kristy Tan and Justice Mohamed Faizal, the two Supreme Court Judges who oversee the scheme, answer some questions on the purpose and value of the scheme. Through their responses, they reflect on how the scheme serves as a means of assisting the court on difficult questions of law and of providing an opportunity for younger counsel to develop as advocates by way of meaningful engagement with the Bench.

Q1: What were your first encounters with the role of an independent counsel (amicus curiae) and how has that shaped your view of the YIC scheme?

Justice Tan: The YIC scheme started life as the Young Amicus Curiae¹The YAC was renamed to YIC to coincide with the implementation of the Rules of Court 2021, which was intended to modernise the litigation process by simplifying rules and court terminology that are easier to understand. (YAC) scheme and I was part of the inaugural batch of YACs appointed in 2010. I was in my fifth year of practice then and was assigned a case eventually reported as Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870. Later, as a prosecutor with the Attorney‑General’s Chambers, a YIC was appointed in a criminal case I argued, and his input added depth to the hearings.

To my mind, there are three striking features of the YIC experience. First, because YICs are called upon to assist and address the court on substantive and, usually, novel or more complex issues of law, there is a significant degree of intellectual rigour involved in the exercise. Second, precisely because of the nature of the issues involved, YICs can usually expect a lively exchange with the High Court Bench in the case where they are appointed, and this hones the art of responding to the court’s questions with substance and decorum. Third, because YICs are not acting for any party, instead of having to focus on the best arguments to advance the client’s case, they have complete agency to simply address the issues according to what they consider, in law, the answer should be, which can be very gratifying. Taken together, the opportunity to act as a YIC rounds out a young advocate’s litigation experience. I am very grateful to the Judges who gave me that opportunity back in 2010.

Justice Faizal: I would echo much of what Justice Tan has observed. My experience is, admittedly, from a slightly different vantage point. I encountered independent counsel (or amicus curiae as it was known then) and young independent counsel (or young amicus curiae as it was known then) in at least four cases in which I was appearing on behalf of the State as a prosecutor (Sim Yeow Kee v Public Prosecutor and another appeal [2016] 5 SLR 936; Parti Liyani v Public Prosecutor [2021] 5 SLR 860; Public Prosecutor v Azlin bte Arujunah and other appeals [2022] 2 SLR 825 and Public Prosecutor v Song Hauming Oskar and another appeal [2021] 5 SLR 965). Like her, those experiences also left quite an impression on me.

The presence of an independent counsel in each of these four cases did not detract from the role of counsel for the parties. On the contrary, in each of these cases, the work done by the independent counsel considerably deepened the conversation that all of us, as a collective, were able to have with the court. The independent counsel was able to step outside the adversarial framework to ponder broader jurisprudential questions: What is the principled basis for the rule? How does this proposition fit with another line of authority? What are the implications for future cases? Is there an argument which neither party has any particular incentive to develop fully?

The result was a much richer discussion in all of the four cases in question. From the perspective of counsel, it also meant that propositions of law and practice were being scrutinised and considered from another, entirely independent, angle, allowing for a richer and more robust debate in court amongst the respective parties. I certainly found it particularly interesting to engage the legal issues identified by the independent counsel in all four of those cases, and, given my role at the time, to provide the State’s perspective to these issues.

Q2: Is that essentially the philosophy behind the YIC scheme?

Justice Tan: Very much so. Inasmuch as the YIC scheme aims to develop young advocates by giving them the responsibility of addressing, and engaging with the court on, serious legal questions, the court also benefits from YICs’ contributions in providing an independent perspective, research, analysis and argument which may not otherwise emerge fully from the parties’ submissions. These two dimensions of the scheme are complementary.

Q3: Why is the developmental aspect particularly important today?

Justice Faizal: Modern litigation has evolved significantly. Cases are managed more efficiently, written advocacy has become increasingly sophisticated, and many disputes are resolved without the need for lengthy oral hearings. The Bar has also expanded over the years. Each of these developments is, in the grander scheme of things, positive. However, one natural consequence of these interconnected developments is that opportunities for a young advocate to stand before a court and engage in sustained oral argument on a difficult point of law become less frequent. That makes the opportunities which do arise all the more valuable.

The YIC scheme therefore seeks to create one such platform in what we hope is a particularly meaningful form. The YIC is not appearing in order to simply address the court on a narrow procedural point. Instead, it is the nature of the assignment that he or she would be asked to deal with a difficult question about what the law is, how existing principles fit together, and, often, how the law should organically develop. From our experience, this ends up offering a genuine intellectual dialogue with the Bench, and with both sets of counsel, in which propositions are tested and refined, authorities scrutinised, and principles properly understood and ventilated. Such engagement is, really, one of the most demanding and formative parts of advocacy.

Q4: As Judges, both of you have appointed YICs in the cases you presided over. What has your experience been?

Justice Tan: Our cases remain live, so we will share what we can within those limits. It is always a pleasure to hear from young, intelligent counsel, and my experience with the YIC appointed in the case before me was no different. I think the respective parties’ counsel also felt that they benefited from what the YIC brought to the table. There was a lot of respectful interaction all round on the substantive points during the hearing.

Justice Faizal: I agree with Justice Tan. Like her, I think that in the case before me, the arguments of the YIC were very useful in understanding how the issues before me were to be resolved, and the tensions inherent in the competing versions of the law that the parties advanced. Needless to say, the contribution of the YIC in that case contributed significantly to the litigation process.

Q5: Does the fact that the YIC is relatively young alter what the court expects?

Justice Faizal: The standards remain real. The YIC is of course there to assist the court, and that responsibility has to be taken seriously. The court is entitled to expect careful research, accurate citation of authority, intellectual honesty and a properly reasoned position. In my experience, both as an advocate and as a Judge, YICs have invariably been able to meet these standards. But that said, the YIC scheme also serves a developmental purpose, and the Bench recognises that. In that sense, the court also views it as part of the broader learning process for promising advocates. The discussion that is had with the YIC in court, which always ends up being enlightening, serves as the natural extension of that process.

Q6: What does the court gain from having younger lawyers participate in this way?

Justice Tan: Two things. First, on a macro level, the Judiciary is committed to, and shares responsibility for, the future of the legal profession. In my view, the enduring implementation of the YIC scheme is one small contribution towards fulfilling that mission. The Bar thrives when there are future generations of good advocates. In turn, good advocacy is forged in the furnace of the litigation process and court hearings. The YIC scheme gives young advocates an additional avenue to do precisely that.

Second, on a case‑specific level, YICs are sometimes appointed in cases where one party does not have legal representation. The participation of a YIC in such cases helps to place a broader range of legal perspectives and balanced views on key issues before the court. Even in cases where all parties are represented, the independent and fresh perspective that a YIC brings can be very helpful.

Q7: Does the YIC appointment also have value beyond the particular case?

Justice Faizal: Yes, and I think there are two variants of that: value to the law, and value to the lawyer.

The first is the contribution to the development of the law itself. A YIC appointment sometimes arises precisely because the court is confronted with a question in which the law is unsettled, under-developed, or otherwise would benefit from an independent perspective. The YIC is therefore not simply assisting the court in resolving the dispute before it. He or she may, in a very real sense, be a joint architect in the development of jurisprudence, and in helping the court determine how the law should develop. To the extent the resulting judgment becomes part of the body of law that guides future cases, the YIC’s contributions can extend well beyond the particular dispute in which the appointment is made.

The second is what the appointment can mean for the lawyer. It gives him/her responsibility for a substantial piece of advocacy in a case where the law may, as I explained earlier, not be all that developed or established. It makes the advocate accountable for developing and defending the argument before the court. That is valuable not just as an entry on a CV. More fundamentally, it provides the advocate an opportunity to begin to build a visible body of substantial work that can hopefully assist to define their professional identity and reputation. In our view, that can only be a good thing.

Q8: What advice would you give to a lawyer appointed as YIC for the first time?

Justice Tan: Don’t feel pressurised to come up with “creative” legal solutions. Just submit based on what you truly believe the position should be after doing rigorous research and thinking through the issue deeply and carefully. The usual guidelines on effective advocacy also continue to apply, such as being candid about any difficulties or limitations in the position you have taken.

Justice Faizal: And perhaps to remember that the court is genuinely interested in the answer. The questions are not there merely to test whether you have prepared. This isn’t an examination. Instead, they are part of the court’s own process of thinking through what may be a genuinely difficult legal issue. And precisely because these issues are difficult, don’t be overly concerned if the court ultimately does not agree with the position you have advanced. Difficult questions of law, by their nature, often admit of more than one reasonable answer. You would have done well if your submissions have enabled the court to understand the competing approaches, test their strengths and weaknesses, and ultimately arrive at a better-informed answer.

Q9: What would you say to more senior members of the profession?

Justice Faizal: We should be conscious about creating opportunities. We are no longer in a world where a young litigator can assume that significant advocacy opportunities will naturally come with time. There may once have been an expectation that, if one remained in practice long enough, he or she would invariably accumulate substantial oral advocacy experience. Given the way modern litigation has evolved, that can no longer be taken for granted. That is not a criticism of the modern system but simply a recognition of its realities. But it does mean that, where meaningful advocacy opportunities can appropriately be created, we should recognise their value and be deliberate about creating them. The YIC scheme is one way in which the court seeks to play its part.

Justice Tan: Your support for your juniors’ participation in the YIC scheme counts! Practically speaking, a YIC assignment is another matter that the young lawyer takes on, on his/her own time and dime, among many other fee‑paying matters that he/she has to account to clients and/or bosses for. The support of the YIC’s law firm and boss (or the equivalent of that in different types of law practice set‑ups) to take on the assignment is thus important. I am thankful to have had both when I was appointed under the scheme. While it is neither fair nor realistic to expect a lightening of the other workload, I think what tangibly helps the YIC is (1) being allowed flexibility and accorded trust in how he/she manages time and prioritises responsibilities, and (2) the law firm acknowledging and appreciating his/her contribution as a YIC.

To find out more about the YIC scheme, please click on the link below: https://www.judiciary.gov.sg/join-us/be-court-volunteer/apply-for-the-young-independent-counsel-scheme