LYNETTE LIM & EMILY CHOO
Deputy Chief Editor (SLR) & Senior Editor (SLR)

When the entire state apparatus is against the individual offender, the Criminal Procedure Code is the only regulatory safeguard to ensure that rights are adequately protected. But does it do enough to level the playing field?

WITH THE PRESUMPTION of innocence finally being affirmed as part of our criminal justice system in the recent case of XP v. PP, [2008] 4 Sing. L.R. 686 by the High Court of Singapore, it seems logical to follow that the accused should have a right to be informed of the right to counsel so that all parties will have a fair chance in court and that no one is prejudiced from the outset.

Indeed, this was one of the recommendations made by the Law Society in their report on the draft Criminal Procedure Code Bill 2009 when it was put forth for public consultation. While the right to counsel is entrenched in Art 9(3) of the Singapore Constitution, it is distressing that the High Court in Rajeevan Edakalavan v. PP, [1998] 1 Sing. L.R. 815 held that there was no right to be informed of this right. What use can a right be if one is not aware of it in the first place and is thus unable to exercise it?

The Law Society made recommendations on the premise that there was a need to ensure that the accused is fully informed of his right to counsel. It thus proposed, inter alia, that a standard form setting out all necessary information on the right to counsel be provided. It also stipulated time periods within which accused persons should be allowed to access counsel. These recommendations  are reasonable, given practical considerations of both the lawyers and the investigating authorities.

However, it is suggested that effectiveness of these provisions could be further enhanced if the police are empowered to ensure and facilitate these recommendations in guaranteeing the accused’s knowledge of his right to counsel.

Another concern is that although confessions of accused persons are only admissible only if they were made voluntarily and not obtained through inducements, threats or promises of advantages, statements given by an intoxicated accused are still admissible. As the Law Society legitimately questions, why is there a requirement for an intoxicated accused to give a statement? This opens the way for prejudicing the accused and negates all attempts at protecting the administration of justice.

Finally, the Law Society rightly criticizes the proposed change that offences are to be compoundable at the sole discretion of the Public Prosecutor, removing the past role of the Court as the final arbiter of such decisions. This violates the principle of separation of powers and Art 93 of the Singapore Constitution, which vests judicial power in the courts, as the State will be encroaching into a judicial matter.

More change is required to level the playing field and guard the individual’s rights in the criminal process.