The Constitutional Right of Access to Counsel

The Criminal Practice Committee is pleased to introduce a regular column on 'Criminal Law and Practice'. The aim is to highlight matters relating to criminal law and practice, and stimulate the thinking process on certain aspects of criminal law, practice and procedure. The committee hopes that, with regular dialogues with the judiciary and the Attorney General's Chambers and with its discussion of criminal legal issues via these pages, the Law Society may better fulfil its role in the administration of a criminal justice system that we can be proud to be a part of.

The purpose of this article is to highlight the difficulties created by the Court of Appeal's decision of Jasbir Singh v PP [1994] 2 SLR 18. Firstly, this decision attenuates an accused person's right to counsel via the ruling that a two-week period after the arrest in which the accused was denied access to counsel was held to fulfil the 'within a reasonable time after ... arrest' criterion laid down in Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137. Secondly, the reliance by the court in coming to this conclusion on the fact that s 122(6) of the Criminal Procedure Code (Cap 68) ('CPC') does not compel an accused person to make any statement which incriminates him, while correct de jure does not adequately take into account its application de facto. Thirdly, it is suggested that the rulings in the instant case referred to above represent, to the extent that it relinquishes oversight power over the police, a renunciation by the judiciary of its checking competency over the agents of the executive arm of the government. The conceptual implications of such renunciation will be explored.

It will be recalled that in this case, an agent provocateur was planted to help in the arrest of suspected drug traffickers. The whole crime, ie the trafficking in drugs, unfolded before the eyes of the enforcement officers from start to finish. The accused persons were arrested soon after the offence was committed. The aspect of the appeal that we examine here is the court's response to counsel's submission that the first appellant should have been allowed to consult a lawyer before making his s 122(6) statement (at 32). The High Court held that this question was to be answered in the negative, as there was no statutory basis for such a contention, and suggested that since 'the exercise of [the right to counsel] must be subject to a balance between the arrested person's right to legal advice and the duty of the police to protect the public by carrying out effective investigations', the right need not be exercisable immediately, but only within a 'reasonable time'. He added that '[i]n any case ... the recording of a statement under s 122(6) of the CPC does not compel an accused person to make any statement which incriminates him'.

'Reasonable Time' vs 'Immediately'
The court relied on Lee Mau Seng to interpret art 9(3) as requiring only a reasonable period of time rather than immediacy (at 32). The material provisions of art 9 are as follows:

Liberty of the person

(1) No person shall be deprived of his life or personal liberty save in accordance with law.
...
(3) 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.

(4) 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 and shall not be further detained in custody without the Magistrate's authority.

Even if we assume, for the sake of discussion, that this interpretation is valid, it does not seem right, just and fair for access to counsel to be denied for two weeks in what could be described as an 'open and shut' case.

But a more pressing argument against this interpretation exists. It is submitted that insofar as art 9(3) purports to posit a constitutional right, even if the 'reasonable time' standard were to be adopted, at the very least it should have been adopted more restrictively.

This is because a Singapore citizen, whether a suspect or otherwise, does not entirely depend on the common law for his security of life and liberty. He depends on the 'law' as understood in the Constitution and the interpretation of the Constitution by our independent judges for the protection of his life and liberty.

As Ong Ah Chuan's case [1981] AC 648 shows, the principles of interpretation applicable to a constitution are not necessarily the same as for an ordinary statute. The principles of generous interpretation apply to 'life' and 'personal liberty'. It is instructive to set out the exchange between Lord Diplock and the prosecution in that case on the meaning of the ramifications of the word 'law' in the phrase 'in accordance with law'.

Lord Diplock: Their Lordships wish to know if the Public Prosecutor is contending that provided a statute is an Act of the Singapore Parliament then, however, unfair or absurd or oppressive it may be it is justified by art 9(1) of the Constitution?
QC for PP: The Public Prosecutor does not advance that argument: it is unnecessary for him to rely on it since these are plain cases on their facts.
Lord Diplock: Their Lordships cannot accept that because they will have to deal with the point. They are not disposed to find that art 9(1) justifies all legislation whatever its nature.
QC for PP: It is accepted that on a proper construction of the Constitution some acts of the legislature might be contrary to the Constitution and, therefore, void. The Public Prosecutor does not contend for absolute parliamentary sovereignty but only for what is permitted by the Constitution. The constitutionality of any provision depends on which article of the Constitution it is said to contravene.
...
The Public Prosecutor accepts the principle of reasonableness and fair and just procedure accorded by the Indian authorities to the words 'in accordance with law' in so far as the phrase refers to natural justice, procedure before the courts and all that part of the common law such as the presumption of innocence. But the definition of 'law' used in the phrase includes both statute law and common law, and if the Singapore Parliament passes express legislation that is the 'law' referred to and even if we might regard it as contrary to natural justice nevertheless it is within the Constitution. 'In accordance with law' is directed against arbitrary execution or arrest at the discretion of the executive. So far as the legislature is concerned, art 9(1) requires no more than a properly passed statute making provision for deprivation of life or liberty for the deprivation to be in accordance with the law. That is so provided that the statute does not offend any other provision of the Constitution. 'Properly' means passed in accordance with the Constitution. [at 659-660, emphasis added]

As Parliament has not passed any legislation that makes two weeks a reasonable period of time for a person who has been arrested to be denied counsel, a fortiori, judge-made law to the effect that counsel can be denied on a case-by-case basis is even less 'in accordance with law'. Indeed, the time limit placed on persons who effect arrest to inform the accused of the grounds of his arrest is 'as soon as may be', and the maximum time given before the accused is produced before a Magistrate is 48 hours. It would appear that, to be consistent with the principle of reasonableness and fair and just procedure, the right to consult a legal practitioner of his choice should occur at the same time.

Neither is it consistent with judges being protectors of Constitutional rights and the reservoirs and distributors of justice. For the doctrine of separation of powers means that the judges are vested with powers to ensure that the judicial arm provides an institutional check to the powers of the executive and the legislative. In other words, the separation of judicial power provides for the independence and dignity of judges, allowing them to determine the 'fundamental principles of law, which is the ultimate security of life, liberty and property' (see Haig Patapan, Judging Democracy (2000) Press Syndicate of the University of Cambridge, Chapter 6, p 152). The corollary of separation of powers then is that judges have to carry out their mandate and uphold the Constitution, which entails scrutinising any rule or practice that can have the effect of detracting from the vigour of the fundamental rights and, where necessary, hold provisions of the law unconstitutional.

Section 122(6) CPC: The Non-correspondence Between De Jure and De Facto
To be sure, while as a matter of law it is correct to state that nothing in s 122(6) of the CPC compels an accused person to make a self-incriminating statement, a distinction has to be drawn between the law per se and the effect of the law in actuality. The accused person - who is not trained in the law - without the advice of counsel or, at the very least, the clarification of the interrogating police officers, may very well be unable to appreciate the fact that he is not obliged to make such statements.

In this light, the approach as to how the constitutional right to counsel is to be given effect is neatly encapsulated in the American case of Gideon v Wainwright 372 US 335 (1963); Robert F Cushman and Brian Stuart Koukoutchos, Cases in Constitutional Law (9th Ed, 2000) p 324:

The right of one charged with crime to counsel [is] fundamental and essential for fair trials ... . This noble ideal cannot be realised if the ... man charged with crime has to face his accusers without a lawyer to assist him. [The court then cited with approval the words of Mr Justice Sutherland in Powell v Alabama:]

'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated ... [i]f charged with crime, … is incapable, generally, of determining for himself whether the indictment is good or bad ... . He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'

It is further submitted that the lack of appreciation of the de facto aspect sits uneasily with the balance of the current regime governing the procedures that have to be observed in the treatment of an accused person. To give a few examples, it is an offence to keep persons in confinement in the exercise of legal authority with a corrupt or malicious motive (s 220 of the Penal Code (Cap 224)). The CPC of Singapore provides safeguards when confessions are recorded. Confessions should properly be recorded before a Magistrate in the exercise of judicial power under s 124 of the CPC and s 26 of the Evidence Act (Cap 97). Every person accused before any criminal court has a right to be defended by an advocate (s 195 of the CPC). The Constitutional protection under the constitution should kick in when a person is arrested for the procedure to be fair. Constitutional rights of a Singapore citizen do not roll off his back upon arrest (see Basu's case). He must be allowed to consult and be defended by a legal practitioner of his choice during interrogation, whenever he requires legal advice and when called upon to make his defence, if the procedure is to be fair. The Evidence Act (Cap 97) requires all confessions be made voluntarily and the voluntariness proved beyond reasonable doubt (s 24).

As a final point, the fact that a lawyer can be found negligent if he does not inform his client, who stands accused of the fact that he is not obliged to incriminate himself, further shows the seriousness that this safeguard is accorded. What the law gives with one hand, would be taken away with the other if the de facto aspect is not given due recognition.

Relinquishing of Competency to Check the Agents of the Executive
The final suggestion that this article puts forth is not in any way a suggestion that the executive arm has a propensity to abuse its powers. The argument is a more conceptual one that focuses on the dangers of such relinquishing from the perspective of the doctrine of separation of powers.

While it would be inappropriate to equate the Singapore Police Force with their counterparts elsewhere, with respect to treatment of persons who have been arrested, it would be unrealistic to ignore the fact that the Singapore Police enjoy wider powers to record statements, and for the prosecution to use such statements in the course of a trial largely through judge-made law and amendments to statutes. The potential dangers of abuse are magnified in light of the fact of the existence of presumptions that may be rebutted only with great difficulty, and that some offences are punishable with death.

Three points will be made at this juncture. Firstly, even though a creature of statute can be subsumed within a formalistic meaning of 'law', it does not necessarily follow that the acts of such creatures are necessarily validated under a conception of law that takes into account natural law. Secondly, a creature of statute can still carry out arbitrary acts contrary to natural law. Thirdly, judges as upholders of the Constitution have to be careful that they do not unwittingly sanction such acts.

We turn to the example of the Star Chamber to substantiate the first two points. The Court of Star Chamber was formalised by an Act of Parliament in 1487. It enabled the King in Council to bypass nearly all the processes and safeguards of the common law. For speed and certainty, the Star Chamber resorted to the 'information ex officio' holding people to trial by 'virtue of its office'. Men suspected of crime were compelled to take 'oath ex officio', brought in from ecclesiastical law to evade the privileges against self-incrimination. It bound them to answer all questions that might be asked, and took away the common law privilege against compulsory self-incrimination. Confessions were obtained by torture. Punishment was as certain as death (Irving Brant, The Bill of Rights, Its Origin and Meaning, p 94).

I turn to the third point. When Edward Peacham was accused of treason in 1615 for writing a sermon found in his room, which was not delivered and not intended for delivery in his handwriting, stating, inter alia, that 'the king is the greatest whoremonger in the Kingdom', it was fortunate that the majority of the judges ruled that defamation of the King was not treason. This was subsequently followed in the case, also involving a treason charge, against Hugh Pine, a farmer. The farmer was heard to say that Charles I was carried from place to place by those around him 'as one would carry an apple. Before God he is no more fit to be King than Hickwright' - the farmer's simple shepherd.

All the judges of England were called upon to give opinion upon the case, and their recorded answer was as follows:

Upon consideration of all which precedents and of the statutes of treason, it was resolved by all the judges before named, and so certified to his majesty, that the speaking of the words before mentioned, though they were as wicked as might be, was not treason. For ... there is no treason at this day but by the statute of 25 Edw 3, c 2, for imagining the death of the king, etc. ... To charge the king with a whoremonger or drunkard in the kingdom, is no treason ... . [Irving Brant, p 96]

An accused depends on judges to secure his constitutional rights, and this is never more urgent than in the face of arbitrary action by the agents of the executive. As Blackstone has noted:

In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.

He concludes his position by stating that 'nothing, therefore, is more to be avoided, in a free Constitution, than uniting the provinces of a judge and a minister of state' (Haig Patapan, p 155). In this connexion, the decision of Jasbir Singh, insofar as it appears to be executive minded, can detract from the power of the judiciary to secure citizens' constitutional rights.

Finally, it is useful to juxtapose the approach in the instant case with the approach of the Supreme Court of India to its duty as the custodian and protector of the fundamental and the basic rights of citizens. In the case of DK Basu v State of West Bengal AIR 1997 SC 610, the Supreme Court laid down its seminal '11 Commandments' that serve to protect the fundamental rights of the citizen upon his arrest from abuse of police powers. In so doing, the court did balance such rights with the competing interests of national security, the difficult task of the police both during interrogation, investigations and in maintaining law and order (at 622).

The tenor of these commandments is that the arresting authority has to adhere to strict procedural safeguards of the arrested person, on pain of sanctions that flow from contempt of court if they are not observed (at 623-624). As an illustration of the high standards that they posit, these 'Commandments' entailed, inter alia, that the arrested person is entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, and that he must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained (at 623). Although the right to counsel is not one that subsists throughout the interrogation, 'the arrestee may [nevertheless] be permitted to meet his lawyer during interrogation' (at 623).

Conclusion
It is useful to articulate the implicit premise that has animated the discussion. In Singapore, it is the Constitution that is the supreme law and not any other written law. As art 4 of our Constitution states:

This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution, which is inconsistent with this Constitution, shall, to the extent of the inconsistency, be void.

It can be argued in favour of the Court of Appeal that art 4 enjoins one only to observe the letter of the Constitution as written and that the court has interpreted the scope of the Constitutional right in art 9 and the making of a s 122(6) statement by an accused person.

But it is submitted that the spirit of art 4 and the principle of reasonableness and fair and just procedure accorded to the words 'in accordance with law' is not fully satisfied by the Jasbir decision. Article 4 provides for the voiding of legislation. Vis-à-vis a judicial consideration of the operation of a statutory provision, the ability to void is a far stronger power that is vested in the judiciary, and it can be argued that as the greater includes the lesser, the spirit of the Constitution must, therefore, enjoin the judiciary to also read legislation in a way that ensures the vigour of fundamental rights which are the handmaidens of constitutions in their protective role against power. Arguing, from the observation that nothing in
s 122(6) of the CPC compels an accused to incriminate himself, to the conclusion that the lack of access to counsel for two weeks does not matter insofar as the accused's ability to obtain legal advice is in question, as the court has done in this case, is effectively an attenuation of the art 9 right of the individual. It thus does not satisfy the spirit of art 4 and the concerns that went into making access to counsel a constitutional right under fundamental liberties.

KS Rajah, SC
Criminal Practice Committee
Law Society of Singapore