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The right to legal counsel

By Teo Soh Lung

On 7 May 2014, the Court of Appeal in James Raj s/o Arokiasamy v PP delivered a very disappointing judgement. It ruled that an accused person is not entitled to counsel within 48 hours. It effectively ruled that it is perfectly in order for the police to deprive an accused person of a lawyer of his choice for 29 days. That is a very long time. Unless a person is deranged, confessions would have been obtained by the dozens and no lawyer will be able to assist his client in proving that those confessions were involuntarily given.

The Court of Appeal affirmed the decision in Jasbir Singh made in 1994. In Jasbir’s case it was decided that an accused person is entitled to counsel within a reasonable time. Two weeks was considered reasonable.

The judges in Jasbir relied on and even earlier case, that of Lee Mau Seng in 1971. Lee Mau Seng, the general manager of the Chinese daily, Nanyang Siang Pau was arrested under the Internal Security Act. He was denied access to his counsel, David Marshall for 20 days. Chief Justice Wee Chong Jin ruled that “If a person who is arrested wishes to consult a legal practitioner of his choice, he is, beyond a shadow of a doubt, entitled to have this constitutional right granted to him by the authority who has custody of him after his arrest and this right must be granted to him within a reasonable time after his arrest...”

The attorney general in Lee Mau Seng had argued that a ISA prisoner was not entitled to counsel. It was a deplorable proposition. Fortunately, Justice Wee made it clear that a ISA prisoner was entitled to his constitutional right to counsel. Regrettably however, he did not elaborate on the right to counsel “within a reasonable time after his arrest.”

While Lee Mau Seng was denied access to counsel for 20 days, James Raj was denied access to counsel for 29 days. Forty three years ago, an accused person was denied counsel for 20 days. Today, he can be denied counsel for 29 days. Will it be 60 days in another 20 years?

The right to counsel is a constitutional right. Article 9(3) reads:

Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

It is immediately followed by Article 9(4) which states:

Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate, in person or by way of video-conferencing link (or other similar technology) in accordance with law, and shall not be further detained in custody without the Magistrate’s authority.”

Following the decision in James Raj, these constitutional protections are rendered totally ineffective. They might as well be removed from our Constitution.

A lawyer’s usefulness to his client is to advise him of his rights, to explain what constitutes the offence which he is alleged to have committed, his right to remain silent, to claim trial or plead guilty. What is the purpose of having a lawyer after he is brought before the court and charged and after a plea has been taken? If the Constitution is to afford any protection to an accused person, Article 9(3) and (4) must be read together – the right to counsel within 48 hours and to be produced before the magistrate within 48 hours. The decision in James Raj’s appeal makes a mockery of these constitutional protections.

Singapore courts and the attorney general are quick in taking advantage of today’s technological advancement and slow in affording protection for accused persons. Today an accused person need not be physically brought before the court within 48 hours (Article 9(4)). He can appear before the magistrate through video conferencing link (or other similar technology) i.e. he appears in a special room in the prison complex while the magistrate sits in a court in Havelock Road. The advantage to the police is enormous. It may also lead to the allegation that the accused person may be susceptible to advice as to how and what he should do or say before the camera. Here I am not saying that police coaching takes place. The government benefit in that it saves costs in not having to transport the accused person to court with security personnel in tow.

The disadvantage to the accused person, however, is grave. Appearing before a video camera in prison is not appearing before a camera in the hands of friends. He is all alone, in a room, without his counsel and without any form of assistance. He can only seek advice from prison officers. Unlike appearing in court, he is unable to see a single family member or his counsel. The magistrate viewing the accused through the video screen cannot see the accused person clearly. He cannot ascertain if he has suffered physical injuries. The magistrate does not know if the accused person has been subjected to coaching by the prison officers. 

While all these technological advances benefit the state, the attorney general and the police, the limited rights of the accused persons are greatly compromised. I do not know if any independent study has been made on the use and effect of video-conferencing links as a substitute for the physical presence of the accused persons in court. Is justice compromised for the sake of efficiency and saving of costs?

Since Singapore became an independent country, parliament has enacted an abundance of laws, creating more offences and mandatory punishments, shifting the burden of proof from the prosecution to the accused persons in many offences including offences which carry the death penalty, enhancing punishments and eroding the few remaining rights of accused persons. One such erosion of rights is the aforesaid requirement to produce an accused person before the courts. Before 1984, an accused person must be produced before the court within 24 hours. After 1984, this requirement is extended to 48 hours. 

Despite the prolongation of time for the production of an accused person in court to 48 hours, it is not uncommon for the prosecution to request further remand of a week or two. Sometimes a request that he be remanded in the Institute of Mental Health is made. Such requests are frequently granted as a matter of course. It appears that despite the Attorney General’s Chamber being staffed with more brilliant legal officers and prosecutors, the use of computers, tape recorders, video cameras etc, the police have become less efficient.

James Raj’s decision will no doubt have very severe implications for our criminal justice system. It is judicial endorsement of our inefficient police force. Grave injustice may result.

This article first appeared on Teo Soh Lung's Facebook page.