The question of whether when an accused person, who has been remanded to assist with police investigations, is entitled to seek legal counsel has long been a point of contention and tension between prosecution and defence (despite constitutional guarantee) has long vexed the Courts. A recent ruling of the High Court has lifted some of the cloud, but, alas, by no means all of it.

The Point at Which the Right to Access Counsel Arises

1. Introduction

The High Court in James Raj s/o Arokiasamy v PP,¹ delivered a nuanced and pragmatic judgment on the question of exactly when the right to counsel upon the request of a person remanded for investigations arises, pursuant to art 9(3) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”) – even if much of the interesting observations of Choo J in James Raj were rather diminished on appeal by the Court of Appeal.²

2. The Constitutional Right and the Inherent Tension

Article 9(3) of the Constitution provides as follows: “Where a person is arrested, he … shall be allowed to consult and be defended by a legal practitioner of his choice”.

The question when the right of an arrested person to consult a legal practitioner under art 9(3) commences has long been a matter of central controversy between law enforcement and prosecution agencies, on the one hand, and the Bar, on the other. Put another way, “[t]his problem has been the subject of frequent disagreement between counsel and the police”.³ This natural tension has also long vexed the Courts.

3. The Inalienable Right

In Singapore (and Malaysia) it has long been recognised by the Courts that the basic right guaranteed by art 9(3)⁴ of the Constitution is an inalienable right, even when a person is remanded under the Internal Security Act (Cap 115, 1970 Ed). This was made amply clear by Wee CJ in Lee Mau Seng v Minister of Home Affairs, Singapore & Anor⁵(“Lee Mau Seng”) at [17]:

It is disturbing to hear a submission which, stated in simple ordinary language, puts forward the proposition that the Legislature, by enacting s 74 of the [Internal Security Act], must have intended to deprive a person of a ‘fundamental liberty’ which the Constitution guarantees to him, namely the right to be allowed to consult a legal practitioner of his choice, so as to enable a police officer acting under preventive detention powers to better carry out enquiries or investigations concerning that person of whom the police officer has reason to believe that there are grounds which would justify his detention under s 8 and of whom the police officer has reason to believe has acted or is about to act or is likely to act in any manner prejudicial to the security of Singapore or any part thereof. In my judgment that is an unacceptable proposition. If a person detained under s 74 is to be deprived of this constitutional fundamental right then the Legislature must do so in clear and unequivocal language. Also, if such wide powers are to be conferred on police officers, then the Legislature must confer them in clear and unequivocal language.

In the Indian case of In Re Madhu Limaye⁶ (in respect of art 22(1) of the Indian Constitution, which has the same effect as art 9(3)), the Supreme Court of India held that:

Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safe-guarding personal liberty in all legal systems where the Rule of law prevails. For example, the 6^th Amendment of the Constitution of the [USA] contains similar provisions and so does Article 34 of the Japanese Constitution of 1946, In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also the grounds of the arrest …

In respect of Restricted Residence Act 1933 (Act 337) (Malaysia), it is also clear that the right to consult counsel, envisaged under art 5(3) of the Federal Constitution, also extends⁷ and is not deprived.

In other words, as things stood then (and as far as the present writer is concerned, even today) immaterial of under what charge or Act of Parliament a person is arrested, his basic right guaranteed by the Constitution to consult counsel under art 9(3) operates undimmed.

4. A Right Beyond a Shadow of a Doubt

Moreover, it has never been doubted that the fundamental right to consult counsel under art 9(3) applies with full vigour in Singapore and Malaysia. That proposition was put spiritedly by Wee CJ in Lau Mau Seng at [12]:

The language of [Art 9(3)] of the Constitution is clear and simple. If a person who is arrested wishes to consult a legal practitioner of his choice, he is, beyond a shadow of 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.

5. When Does the Right of an Arrested Person to Consult Counsel Commence?

Given that the language of art 9(3) is “clear and simple”;⁸ the fundamental constitutional right guaranteed therein is inalienable;⁹ and the same right exists and operates “beyond a shadow of a doubt”,¹⁰ the only question that remains is when the right of an arrested person to consult and be defended by a legal practitioner of his choice begin?

6. The Malaysian Debate

In Malaysia, this question was debated enthusiastically in the 1970s. Learned Counsel Karpal Singh,¹¹ relying on Indian authorities,¹² concluded that:¹³

… the right to consult and to be defended by a legal practitioner under Art 5(3) accrues to an arrested person the moment he is arrested so that he may defend himself against such arrest. This is an irresistible implication from the reading of Article 5(3). An arrested person does not acquire this right only when he is charged in court for there could well be instances when an arrested person may not at all be charged. The arrest of an accused on a criminal charge has an intimate connection with his eventual trial in court whereat the accused defends or is defended by counsel (emphasis added).

… the right of a person who is arrested and remanded in police custody to consult and be defended by a legal practitioner of his own choice commences immediately after arrest. This is an unqualified right, denial whereof, renders his detention unlawful. The powers of the police to conduct investigations are subject to this right guaranteed by the Federal Constitution which, needless to say, is the supreme law of the land.¹⁴

However, the then Solicitor-General of Malaysia, Mohamed Salleh Bin Abas (who later became Lord President) took another view.¹⁵ First, he opined that art 5(3) was merely declaratory of the position in respect of the right to counsel that existed prior to Independence. Second, he postulated that the right to counsel, its scope and extent must be examined by reference “… to the greater right of the community to have peace and tranquility the society”.¹⁶

For him, it was not without significance that art 5(3) expressly states that the right of the arrested person to consult and be defended by a legal practitioner of his choice “shall be allowed”. This meant that the right of the community for peace and tranquility is a greater right and, therefore, must be given priority to the right of the individual. This position was, according to Salleh Abas, fully accepted by the Wee CJ in Lau Mau Seng and the Modi J in the Indian case of Moti Bhai v The State.¹⁷

Be that as it may, the question remains as to exactly when the right commences.

7. When? “Immediately”!

Karpal Singh argued – by reference to Indian authorities – that the right arises the moment a person is arrested. However, he appeared to be alone in this opinion (at least from judicial perspective). However, Choo J in James Raj, took the view (not necessarily in strict compliance with judicial precedent) that when Wee CJ in Lau May Seng stated that the right to counsel must be granted to an arrested person within a reasonable time after his arrest, he did not mean that the police ought to be afforded a “reasonable time” for investigations, but rather intended no more than to acknowledge that, while an arrested person should be entitled to consult counsel immediately after arrest, there has to be a “reasonable time” for any necessary or unavoidable delay occasioned by practical or administrative concerns, eg having to transport the arrested person to the place of remand or having to contact the counsel of the arrested person’s choice.¹⁸

8. When? “Reasonable Time”!

The Court of Appeal in Jasbir Singh & Anor v PP¹⁹ concluded that the arrested person’s constitutional right to counsel did not mean that he was entitled to consult counsel immediately after his arrest. Instead, he was entitled to consult counsel only a “reasonable time” after arrest.

As Choo J in James Raj was bound by the Court of Appeal in Jasbir Singh, he observed:²⁰

Although Lee Mau Seng was a case of detention under the Internal Security Act and not a case of ordinary criminal proceedings, I think that Wee CJ would have intended his philosophy to apply in the context of criminal proceedings just as much as in the context of detention. Indeed, that philosophy ought to apply a fortiori to ordinary criminal proceedings, since the element of national security, present in detention cases, is not usually in issue. Nevertheless, the Court of Appeal in Jasbir Singh²¹ held expressly that ‘reasonable time’ was to be given to the police as an element of allowance in carrying out their investigations. That is the legal position that I am bound to follow.

9. When? “48 Hours”!

Messrs M Ravi and Eugene Thuraisingam, learned counsel for the Applicant in James Raj, submitted that a “reasonable time” cannot exceed 48 hours. They based their argument on art 9(4) of the Constitution, which provides that a person who is arrested must be produced before a Magistrate within 48 hours, as well as s 68 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), which provides that the police may not detain a person arrested without a warrant for more than 48 hours.²²

They argued that:²³

1. When an arrested person is brought before the Magistrate within the 48-hour period, the Prosecution typically makes applications against the person. Hence, the person should be entitled to instruct counsel by the time this is done for his hearing before the Magistrate.

2. The rationale of art 9(4) of the Constitution and s 68 of the Criminal Procedure Code is to allow the judicial authority to apply its mind to the case within 48 hours of the person’s arrest.

3. There is a need for counsel to be involved at an early stage after the person is arrested in order to guard against the possibility of coerced and/or false confessions, and/or the possibility of the accused failing to state a material fact, from which failure an adverse inference may later be drawn against him at trial. 

4. A 48-hour time period would serve as a check on the police.

As to this point, for reasons beyond the scope of this article, Choo J concluded thus:²⁴

“I need not, and do not, express a view on the applicant’s contention that a ‘reasonable time’ should be no more than 48 hours, although I do record that this issue had been argued in full by both parties before me”.

10. When? Immediately, But There has to be “Reasonable Time” for Delay

It is submitted that this was the position that Choo J earnestly felt was the correct one in James Raj, when he observed: ²⁵

… while an arrested person should be entitled to consult counsel immediately after arrest, there has to be a ‘reasonable time’ for any necessary or unavoidable delay occasioned by practical or administrative concerns, eg, having to transport the arrested person to the place of remand or having to contact the counsel of the arrested person’s choice (emphasis added).

11. The Conclusion in James Raj

Hamstrung by binding precedent, Choo J ultimately concluded that an arrested person was entitled to consult counsel only upon the lapse of a “reasonable time” after arrest, the rationale for allowing such “reasonable time” being to afford the police a degree of latitude in carrying out their investigations. 

Therefore, it could not be correct as a general proposition that an arrested person was entitled to consult counsel immediately upon request.²⁶

12. Choo J’s Pragmatic Contribution in James Raj

Be that as it may, the positive contribution of Choo J to this on-going debate relates to the pragmatic way Choo J has put the burden on the Prosecution to establish to the satisfaction of the Court that giving effect to the right to counsel would impede police investigation or the administration of justice.²⁷

Choo J argued:²⁸

As Wee CJ repeatedly said in Lee Mau Seng … the right to counsel is a fundamental right protected by the Constitution. The arrested person who alleges that his Constitutional right had been impinged bears the burden of proving that allegation. Ordinarily, all that he has to do is to show that he has not been permitted to consult counsel subsequent to his arrest. That would furnish sufficient grounds to indicate that there might have been a breach, and the burden is then on the other (the Prosecution) to show that there was no breach because, as in this case, the investigation process is underway. On that practical and evidential level, the arrested person may have little or no knowledge of what and how the investigation is proceeding, nor how it might be disrupted or tampered. I would add that, this being a constitutional fundamental right, the burden is to prove that it is necessary, and not merely desirable or convenient, to derogate from it.

In other words, it is no longer enough to simply state that consulting counsel would impede police investigation, it is necessary for the Prosecution to show how and why consulting counsel would impede police investigation. It is submitted that this ruling has already had positive results in the State Courts preliminary mentions courts.

13. The Court of Appeal in James Raj s/o Arokiasamy v PP²⁹

On appeal to the Court of Appeal for leave under ss 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed), the Court of Appeal ruled (albeit, it is submitted, the rulings as set out below were obiter dicta³⁰):

1. That the right to counsel must be granted to an arrested person within a reasonable time after his arrest meant that such a right could be postponed for such period as might reasonably be required by the police to enable them to carry out their investigations.³¹ And that this is settled law.³²

2. That there was no legal requirement that the police permit counsel to be present during interviews with the arrested person while investigations were being carried out.³³

3. That as to the question what is a “reasonable time” within which the right to counsel can be exercised (a reference to the 48 hours’ time-limit postulated by counsel for the Applicant in James Raj’) is inherently a question of fact in the sense that it calls for a factual inquiry of all the relevant considerations.³⁴

14. Conclusion

While it cannot be refuted that the judgment of Choo J in James Raj has been rather diminished by the (it is submitted, obiter) rulings of the Court of Appeal in James Raj II,³⁵ two things cannot be gainsaid:

1. It excited discussion on this very important constitutional point which has much practical significance to criminal law practitioners on a daily basis; and

2. His Honour’s ruling that the police had the onus of proving that giving effect to the right to counsel would impede police investigations or the administration of justice – which remains untouched by the Court of Appeal³⁶ – has practical implications and (as mentioned above) has already had positive impact in the State Courts preliminary mentions Courts.

► Louis Joseph
    Regent Law LLC
    E-mail: [email protected]

Notes

1 [2014] SGHC 10 (“James Raj”).

2 See heading No. 13 above. 

3 See Mohamed Salleh Bin Abas in The Malayan Law Journal (“MLJ”)(November 1972), Ixiii.

4 In Malaysia, art 5(3) of the Federal Constitution 1957 (“Federal Constitution”).

5 [1971-1973] SLR (R) 135.

6 AIR 1969 SC 1014.

7 See Assa Singh v Mentri Besar, Johor [1969] 2 MLJ 30.

8 Supra (note 5 above) at [12].

9 Ibid at [17].

10 Ibid at [12].

11 A doyen of the Malayan Bar who passed away recently.

12 Including State of Madhya Pradesh v Shobharam & Ors AIR 1966 SC 1910 at 1920.

13 See MLJ, March 1973, xxi at xxiii & xxiv.

14 Federal Constitution, art 4.

15 Supra (note 3 above) at Ixiv.

16 Ibid.

17 AIR 1954 Rajasthan 241.

18 See Janes Raj at [6].

19 [1994] 1 SLR(R) 782 at [47] (“Jasbir Singh”).

20 See James Raj at [6].

21 [1994] 1 SLR(R) 782.

22 See James Raj at [9].

23 Ibid.

24 See James Raj at [15].

25 See James Raj at [6].

26 See James Raj at [3], [5] and [7].

27 See James Raj at [12].

28 Ibid.

29 [2014] SGCA 33 (Menon CJ, Chao & Phang JJA) (“James Raj II”)

30 By reason of the fact that these rulings were not essential to the underlying decision of the Court of Appeal to not grant leave to refer two ostensible questions of law of public interest to the Court of Appeal.

31 See James Raj II at [11].

32 See James Raj II at [36].

33 See James Raj II at [32].

34 See James Raj II at [39].

35 Supra (note 2 above).

36 See James Raj II at [12].