The right to de­fend

An ac­cused is en­ti­tled to be de­fended by a lawyer of his choice.

The Star Malaysia - Star2 - - ENVIRONMENT - BHAG SINGH

THE re­cent Bant­ing mur­ders have re­ceived un­prece­dented me­dia cov­er­age at a stage where in­ves­ti­ga­tions are still on­go­ing and the sus­pects de­tained have not even been charged.

In fact, the At­tor­ney-Gen­eral has expressed con­cern over the way events have been drama­tised. He has ad­vised all those in­volved to stick to the facts and cau­tioned that re­ports in the me­dia quot­ing var­i­ous par­ties could jeop­ar­dise the case.

Whilst what has so far emerged is hor­ri­fy­ing, the fact re­mains that when a charge is even­tu­ally for­mu­lated, it will have to be proven in ac­cor­dance with the le­gal re­quire­ments that con­sti­tute the law.

Some mem­bers of the pub­lic may want to be­lieve that it is ob­vi­ous as to who was re­spon­si­ble. A reader asked whether any lawyer would want to rep­re­sent such per­son or per­sons and if so, is it right to do so?

I am in­clined to take the view that our reader and those who think like him con­sti­tute a tiny per­cent­age of the gen­eral pub­lic. Oth­ers would want to guess or have their own sus­pi­cions as to who did what. But the ma­jor­ity of peo­ple would wait for the charges to be for­mu­lated and for the trial in court to de­cide who is guilty and how such per­son ought to be pun­ished.


How­ever, it is not un­com­mon to come across mem­bers of the pub­lic who have such thoughts in their mind, like our reader. Should a lawyer rep­re­sent a per­son whom he knows is in­volved in the ac­tiv­ity which is the sub­ject of the charge?

Many mem­bers of the pub­lic fail to ap­pre­ci­ate the role of a de­fence coun­sel in a crim­i­nal mat­ter. Some may mock the lawyer for of­fer­ing to rep­re­sent an ac­cused de­spite pre­vail­ing sen­ti­ments. But the lawyer does no wrong. In fact, he is only per­form­ing his du­ties.

There is noth­ing wrong about a lawyer rep­re­sent­ing an ac­cused even though many peo­ple or a sub­stan­tial group of peo­ple may be­lieve that the ac­cused did what he is charged for, at least in a gen­eral way. Af­ter all, an ac­cused is pre­sumed to be in­no­cent un­til he is proven guilty.

As said by Wil­liam Fortes­cue, an English ju­rist in The King vs Chan­cel­lor: “The laws of God and man both give the party an op­por­tu­nity to make his de­fence, if he has any. I re­mem­ber to have heard it ob­served by a very learned man upon such an oc­ca­sion, that even God him­self did not pass sen­tence upon Adam be­fore he was called upon to make his de­fence.

How the law has de­vel­oped is also nar­rated by Ben­ner Van Sy­ckel, Amer­i­can ju­rist in Pat­ter­son vs State. “In the early days of English crim­i­nal ju­rispru­dence, when even a tri­fling lar­cency was pun­ish­able with death, there was rea­son why the ju­di­cial mind should ex­haust its in­ge­nu­ity in aid of the de­fence, and seize upon ev­ery tech­ni­cal­ity to avert from the pris­oner a pun­ish­ment so dis­pro­por­tion­ate to his crime. The rea­son for re­sort­ing to mere tech­ni­cal­ity to en­able the crim­i­nal to evade the sanc­tions of the law no longer ex­ists, and the prac­tice to which ex­ists, and the prac­tice to which that rea­son led should there­fore cease in.”

Of course, if a lawyer has in his own mind de­cided or has con­cluded that his client ac­tu­ally is guilty, then it be­comes an eth­i­cal is­sue as to whether he should con­tinue to de­fend. But that is a dif­fer­ent mat­ter.

The sys­tem

The lawyer is, af­ter all, one part of the in­sti­tu­tion and the ma­chin­ery that ex­ists to pro­duce an out­come in such cases so that jus­tice is the end re­sult. He has to play his role to pro­duce this re­sult.

Our sys­tem cre­ates an arena in which the pros­e­cu­tion and the de­fence bat­tle out for the for­mer to make out a case and for the lat­ter that it is not made on. In be­tween and above the two, sits the judge who makes the de­ci­sion af­ter hav­ing heard both sides of the case. This in­volves the ev­i­dence and ar­gu­ments on the law.

The po­si­tion of the lawyer is from one point of view de­scribed by Jay Gold­berg, an Amer­i­can lawyer writ­ing in the New York Times some 50 years ago. He said: “I am a mer­ce­nary. A per­son who is ac­cused of some­thing comes into my of­fice and he wants me to be his sword, he wants me to pro­tect his rights. I must, I ac­cept his case, close my eyes to the needs of so­ci­ety and I do what I can to pro­tect him within le­gal ethics, with­out any re­gard for so­ci­ety’s needs or any­one else’s needs. The fact is that so­ci­ety gains most of all by see­ing to it that the rule of law ap­plies to all. It is not tested with the law-abid­ing mid­dle class, but with the peo­ple who need it most to.”

In the same way, it is the duty of the pros­e­cu­tion to present its case. The bur­den is on the pros­e­cu­tion. As said by Sir Giles Rooke, an English ju­rist in Almgill vs Pierson: “Those who make the at­tack ought to be very well pre­pared to sup­port it.”


Of course, the judge is there to en­sure that jus­tice is done. This he can do by ex­er­cis­ing his dis­cre­tion to ob­tain clar­i­fi­ca­tion where this is re­quired. It has of­ten been said that “a judge rarely per­forms his func­tions ad­e­quately un­less the case be­fore him is ad­e­quately pre­sented.”

Of course, judges carry a heavy bur­den when mak­ing de­ci­sions in all mat­ters. And this is par­tic­u­larly so in a crim­i­nal trial where the con­se­quences are un­lim­ited.

Of course, an ideal out­come is based on the pre­sump­tion that all par­ties are equally com­pe­tent and carry out their roles well. On the as­sump­tion that this is done, it is ex­pected that an out­come or de­ci­sion will be made that re­flects that jus­tice is done.

Of course, in real life a per­fect sit­u­a­tion does not al­ways ex­ist and this may cause in­jus­tice as is per­ceived to have hap­pened in some cases. Thus if there are short­com­ings on the part of the pros­e­cu­tion in pre­sent­ing the ev­i­dence that is re­quired, an oth­er­wise guilty per­son may be ac­quit­ted. On the other hand, if there is a fail­ure on the part of the de­fence to de­tect short­com­ings in the pros­e­cu­tion case or present ev­i­dence that would re­but the pros­e­cu­tion case, a per­son oth­er­wise en­ti­tled to ac­quit­tal may be con­victed and this would be in­jus­tice to him.

How­ever, in the case of our own coun­try, we need to strive and hope that the sys­tem op­er­ates at the op­ti­mum level on all ac­counts so that jus­tice may pre­vail.

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