Legal News : Everyone Has Right To Counsel

All of us are entitled to justice under the law. But given the fact that the law is not a motorway but a maze, we need the services of the “gatekeepers of the profession” to secure our rights.

THE right to counsel is partly protected by the Federal Constitution. Article 5(3) requires that “where a person is arrested he shall be … allowed to consult and be defended by a legal practitioner of his choice”. This right extends to citizens and non-citizens alike. It is available at two stages — after the arrest and at the trial.

Regrettably, judicial enforcement of this right has not always been consistent. In a string of cases like Ooi Ah Phua (1975) and Hashim Saud (1977), the courts have held that consultation with a lawyer in a police lock-up can be postponed for a reasonable period to facilitate police investigations.

Who must prove that the delay was unreasonable and oppressive? In Ramli Salleh (1973), it was held that the onus of proving that the right if exercised will impede police investigation falls on the police.

However, in Theresa Lim Chin Chin (1988), it was held that in order to show breach of Article 5(3), the detainee must show that the police have, with bad faith, obstructed a detainee from exercising his right.

Generally, police views on why the right must be postponed carry great weight with the courts.

In the US, the Miranda decision ordained that the arresting authority has a mandatory duty to inform the arrestee of his right to counsel. In AG of Trindad & Tobago v Wayne Whiteman (1991), a similar right was enforced.

In contrast, our courts in Harun bin Saad have held that there is no constitutional right to be informed of this right.

Fortunately, in recent amendments to the Criminal Procedure Code, the right to consult with a lawyer has been fortified. Subsections (2) to (7) of section 28A provide that a police officer, before commencing any form of questioning or recording of any statement from an accused, has a statutory duty to inform the arrestee that he may communicate with a relative or friend or legal practitioner.

The officer is required to give the arrestee “reasonable time” for the consultation to take place.

In Ramli Salleh (1973), Syed Agil Barakbah ruled that “in order to render such interview effective it should be held not within the hearing of any member of the police for, under the law, communication between the solicitor and client is privileged. It should, however, be within the sight of the police”.

The new subsections (2) to (7) of the CPC adopt this magnanimous judicial rule subject to the exception that the above rights shall not apply if an officer, not below the rank of DSP, reasonably believes that the rights under subsections (2) to (7) are likely to result in an accomplice absconding, evidence being lost, witnesses intimidated or safety of other persons compromised.

Regrettably, the preventive detention case of Tee Yam @ Koo Tee Yam (2005) held that the right to legal representation is not violated by the presence of police officers in sight and hearing at meetings between a detainee and his counsel.

Hopefully with the expected repeal of the ISA, the sun will soon set on this unfortunate Tee Yam ruling.

It must be noted that the right to be represented by a lawyer can be defeated in a number of situations, for instance, when the arrestee does not wish to see his counsel or if the lawyer is unwilling to take the case or he fails to show up in court or seeks a postponement that is denied or discharges himself or is discharged by the accused or is ineligible to practice in that court: Re Seed Nigel John QC (2003).

In death penalty cases, a defence lawyer is generally assigned to an unrepresented accused. However, absence of a legal practitioner does not bar the proceeding from continuing and a decision being pronounced.

Due to the expensiveness of legal services and the paucity of legal aid, many people caught in commercial and family law disputes and many victims of maladministration by public authorities suffer in silence.

For a long time it was believed that preventive detention laws, enacted under Article 149 (dealing with subversion) or Article 150 (dealing with emergency), automatically exclude the Article 5(3) procedural safeguard of right to see a lawyer.

However, in a number of admirable decisions including Abdul Ghani Haroon (2001), the courts held that the guarantees of Article 5(3) apply even in ISA detention cases.

Civil proceedings involving life shattering issues like divorce, custody of children and division of property without legal help deserve our concern.

More legal aid and advice schemes need to be devised. As there are clear financial and manpower implications, we need to be flexible, imaginative and pragmatic.

The Legal Profession Act (LPA) should be suitably amended to allow law teachers, law students, advocacy groups and NGOs to represent the indigent and the needy.

All law faculties must be required to attach themselves to courts in the vicinity, and the staff and students must be required at least one day in a week to assist the unrepresented.

As with the Medical Act, the Legal Profession Act should consider one or two years’ mandatory national service for all intending legal practitioners to require them to serve in legal aid centres.

Alternatively, providing a certain number of hours of free legal aid should be a prerequisite to the renewal of the annual practising certificate.

Further, if the price of essential goods can be regulated, the price of essential services should also be determined by the law so that legal services can be within the reach of more citizens.

Source: The Star Online

By: Shad S. Faruqi

Published: Wednesday, March 7, 2012

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