SEPTEMBER 25 — “So you’re a lawyer? I suppose you defend bad guys to earn a living?”
“Accomplice”, “cunning”, “evil”, “greedy without conscience” are just the few labels that have been ascribed to lawyers. I believe that the general dislike for lawyers comes from an ignorance and misconceptions about the whole criminal justice system, the lawyers’ role in it, as well as the ethical mandate of the legal profession. Here are the reasons why lawyers “help bad guys”:
First, it’s the procedural fairness and natural justice that would make the criminal justice system meaningful.
Procedural fairness and natural justice refer to the idea that the justice system is tied more to the perceived fairness of the process, rather than the actual outcome itself. This necessarily implies that the legal procedures must be complied with. Natural justice has been thought to be based on two fundamental constituents of fair hearing, which are the rule against bias, or “no man a judge in his own cause”, and the right to a fair hearing, or “hear the other side”.
Clearly, it would be a gross violation of our federal constitution (Article 5 which confers on everyone the right to consult and be defended by a legal practitioner), as well as of procedural fairness and natural justice, if a person who is prosecuted and tried is being denied his right to legal representation.
The criminal justice system has to be constantly demonstrating its legitimacy to the public it serves, and retaining the public confidence in it, if a society is to be governed by the rule of law. If every lawyer now succumbs to the public pressure and starts refusing to represent what public views as the worst criminals, dire consequences will undoubtedly ensue. This is because any court decision under a criminal justice system that, in denying the accused’s right to legal representation, disregards procedural fairness and natural justice simply lacks the legitimacy and would fail to enjoy any public confidence. After all, any force of law that the court decisions bear lies in the legitimacy of the criminal justice system and the public confidence in it.
Hence, the prerequisites for imparting such legitimacy to our criminal justice system are protecting the accused’s right to be represented, to cross-examine the adverse witnesses, to challenge the evidence adduced by the prosecution, to call witnesses, etc.
Second, every suspect and accused must be presumed innocent until proven guilty.
This presumption relates to the procedural fairness and natural justice, because the former is the underlying reason behind the latter, and can only be secured with the existence of the latter.
In criminal trial, the standard of certainty to be met in finding the guilt of an accused is what is known as “beyond reasonable doubt”. This standard of proof means that any accused can only be held guilty if the court concludes that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. This necessarily implies that an accused can be convicted if the doubt that exists is “unreasonable”, i.e. not a doubt that would exist in the mind of reasonable people (hence need not proof beyond it).
Most importantly, the burden of such proof falls on the prosecution, rather than the accused. This would mean that the “worst criminal” must be proven to be so based on the standard of beyond reasonable doubt in the court of law. Before it is done, the accused is legally innocent. This is the reason why the people and the media must avoid using the terms “criminal” and “victim” before judgment is given, as the usage of such terms prejudges both parties who are supposed to be in an equal position before the law.
To say that the accused who has allegedly committed heinous crime does not deserve a lawyer is to put the cart before the horse as the accused is prejudged to be guilty, when it is not the onus of the accused to prove that he is innocent, but the other way around. Without lawyers representing the unpopular accused, the accused may not be able to disprove or cast doubt to the prosecution’s case effectively.
Third, even if the accused pleads guilty or is found guilty, the mitigation process requires the assistance of lawyers.
In criminal trial, when the accused has pleaded guilty or has been found guilty, the judge would hear and consider the evidence of mitigating and aggravating factors present in the case before he can arrive at an appropriate decision on sentences. Hence, despite the fact that the “worst criminal” has pleaded guilty or has been found guilty, the lawyer’s role is still in the picture to ensure that the court will take into account all the circumstances.
Fourth, separation of powers is our nation’s foundation.
Ideally the executive, legislative, and judicial powers should be vested in separate branches as checks and balances. This means that the police which merely has the function of enforcing the law must not usurp the function of judiciary which is to interpret and apply the law and to decide a case.
Hence, the police can only cooperate with the prosecution in the sense that once the police have completed their investigation, the case will be passed to prosecution who is responsible for charging the suspect and will decide if the evidence is good enough to go to court. At no point can the police or prosecution give the guilty verdict to the suspect or accused, not to mention the public.
Fifth, it is unfair to expect an unrepresented accused to contend with the police and prosecution which have considerable resources.
It goes without saying that the police and the prosecution have a lopsided advantage over the accused when it comes to collecting evidence.
Although s.51A of the Criminal Procedure Code requires that the prosecution must, before the commencement of trial, deliver to the accused the documents such as information made to police regarding the commission of offence, documents that would be tendered as prosecution evidence and a written statement of any fact favourable to the accused’s defence, there is no way we can ensure that evidence in favour of the accused is not being suppressed without the professional assistance from lawyers.
Like the oft-quoted legal aphorism goes, “not only must justice be done; it must also be seen to be done.” Without the legal representation, the mere existence of the rules can hardly be seen to be observed, and the accused’s rights cannot be seen to be protected.
Sixth, the defence lawyers have ethical mandate to uphold by giving their best in defending their clients.
Rule 9(a) of Legal Profession (Practise & Etiquette) Rules 1978 provides that a lawyer “who undertakes the defence of a person in any criminal matter shall by all fair and honourable means present every defence that the law permits”. Besides, Rule 9(b) of the said Rules also provides clearly that a lawyer must “undertake the defence of a person accused of an offence regardless of his personal opinion as to the guilt or otherwise of the accused”.
Rules like these actually go hand in hand with the so-called “cab-rank rule” which has been incorporated into the said Rules. Rule 2 states that a lawyer “shall give advice on or accept any brief...he professes to practise at the proper professional fee...but the special circumstances may justify his refusal...”
Hence, subject to the exceptions such as professional embarrassment, likelihood of the professional conduct being impugned, difficulty of maintaining professional independence, etc, every lawyer must adhere to the cab-rank rule. This also explains why we have legal aid centres and National Legal Aid Foundation being set up, as the financially motivated lawyers will find themselves reluctant to represent the accused that cannot afford the legal fees that can be exorbitant to some.
It all boils down to one principle: everyone is entitled to legal representation. Therefore, lawyers cannot and should not refuse to represent an accused simply because the accused is seen as the “worst criminal” in the eyes of the public.
In conclusion, a criminal justice system that prejudges a “bad guy” would certainly also prejudge a “good guy”. It is only when the lawyers are willing to represent everyone, the legal system will be prevented from getting paralysed. To encourage otherwise is to set the worst precedent you can ever imagine, which will only do harm to the criminal justice system and hamper the justice.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
