The Right to Counsel — The Right to be Informed

• Citation: (1993) 5 SAcLJ 141
• Published date: 01 December 1993
• Date: 01 December 1993

Attorney-General of Trinidadand Tobago v Whiteman 1

This slightly belated note on this important decision of the Privy Council on an appeal from the Court of Appeal of Trinidad and Tobago is perhaps excusable because of the continued absence of judicial explication in Singapore of the right to counsel. Like Singapore, Trinidad and Tobago has a Westminster-style Constitution and, within it, a constitutionally entrenched right to counsel. Any decision of Privy Council interpreting the content of such a provision must surely be of the highest persuasive value in Singapore. The American detective drama scenario of a policeman clasping handcuffs on a suspect whilst reciting the arrested person’s right to engage a lawyer (amongst other things) is familiar to most of us. This decision of the Privy Council may well lead the way in founding a similar constitutional obligation on the part of the police in Singapore.

The Whiteman case

The only question before the Privy Council was this: whether a person upon arrest and detention by the police has a constitutional right to be informed of his constitutional right to retain and instruct without delay a legal adviser of his choice and to hold communication with him. The Court of first instance thought that there was no such right, but the Court of Appeal disagreed and held that there was. The Privy Council upheld the Court of Appeal, ruling that “persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser”. This result was, of course, based on the provisions of the Constitution of Trinidad and Tobago. Constitutions are seldom, if ever, worded in exactly the same way. It is therefore necessary to inquire if the provision on the right to counsel in the Singapore Constitution differs materially from its Trinidad and Tobagan counterpart on the issue of whether there is a right to be informed.

The relevant portions of the Constitution of Trinidad and Tobago were these:

Section 5 (2)…Parliament may not-…

(c) deprive a person who has been arrested or detained…(ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him…

or (h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.

Argument before the Privy Council turned primarily on the interpretation of Section 5(2)(h). Lord Keith of Kinkel,2 delivering the judgement of the Privy Council, reaffirmed the now well-established principle of the interpretation of Westminster-style Constitutions in these words:3

The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights.

Practising what His Lordship preached, Lord Keith then held that the right to counsel under Section 5(2)(c)(ii) will not be effective if the person who has been arrested is not informed of the right because4

[m]any persons might be quite ignorant that they had this constitutional right or, if they did know, might in the circumstances of their arrest be too confused to bring it to mind.

Thus “upon a proper construction of section 5(2)(h)”5 persons who have been arrested or detained have a constitutional right to be informed of their right to counsel.6

Significance to Singapore

The right to counsel in the Constitution of the Republic of Singapore is differently drafted. Article 9(3), where relevant, reads:7

Where a person is arrested he…shall be allowed to consult and be defended by a legal practitioner of his choice.

Whilst this provision is similar in substance to Section 5(2)(c)(ii) (the right to counsel clause) of the Constitution of Trinidad and Tobago, there seems to be no Singapore equivalent of Section 5(2)(h) (the effect and protection clause). It must now be asked if the absence of an effect and protection clause in the Singapore Constitution causes the position in Singapore to be materially different with respect to the right to be informed.

The principle of constitutional interpretation is the same for Singapore as it is for Trinidad and Tobago. In an appeal from the Court of Appeal of Singapore in Ong Ah Chuan v PP, Lord Diplock had this to say:8

…their Lordships would give to Part IV of the Singapore Constitution (which includes the right to counsel in Article 9(3)) ‘a generous interpretation… suitable to give to individuals the full measure of the (fundamental liberties) referred to’.

Lord Keith merely echoed this when His Lordship calls for constitutional provisions on human rights to be interpreted “broadly and purposively, so as to give effect to its spirit”.9

It can be seen that the absence of an effect and protection clause in the Singapore Constitution ought to make no difference to the position of the right to be informed — the absence...