Right to counsel of choice and overriding principles of fairness and justice — Hafiz Hassan

JULY 26 — It is frequently said that a litigant is entitled to be represented by the counsel of his choice.

Is that so? What is the legal position?

One can start with Article 5(3) of the Federal Constitution. It provides that 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.” The other provision to look at is Section 255 of the Criminal Procedure Code (CPC) which provides that “every person accused before any criminal court may of right be defended by an advocate.” It can be seen from the above that the right to consult and be defended is a right of the person arrested.

It is frequently said that a litigant is entitled to be represented by the counsel of his choice. — Unsplash pic

Is the right unqualified?

Justice Edgar Joseph Jr in the case of Sim Kee Guan V Public Prosecutor [1988] did not think so. This is because the right extends only to the choice of counsel who is willing and able to act. It does not confer a right to counsel in every case. (See Palaniappa Chettiar v Arunasalam Chettiar [1961]) Thus in Sim Kee Guan, where the counsel of choice was under a detention order issued under a preventive detention legislation, it could not be said that the counsel was able to represent the accused person even though he might be more than willing to do so.

Now, the right to counsel must also be balanced with the broader interests of the administration of justice.

In a recent case of Ng Yee Hong v Malaysian Institute of Accountants [2021], Judge of the Court of Appeal Ravinthran, delivering the judgment of the Court, said as follow: “We must perforce state that we are mindful of the cautionary advice of Arden LJ in Geveran Trading Co Ltd v Skjevesland [2003] 1 All ER 1, CA that a judge should not too readily accede to an application to remove opposing counsel lest it is used for tactical reasons to cause inconvenience and delay.

“The right to counsel of choice is not a trifling matter. However, the court should not flinch from striking a fair balance between the competing considerations of the right to counsel of choice and the broader interests of the administration of justice.” The right to counsel of choice is not absolute and has to give way in appropriate cases to the overriding principles of fairness and justice.

* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.