Defendants should be free to choose; the judge should not be allowed to decide on whether a case is complex or otherwise.

Justice V K Rajah allegedly provided an explanation as to ‘why he refused request [from Chew Eng Han] for QC’ [The Straits Times 11 Apr page B3].

But it seems there is nothing new in Justice Rajah’s explanation, in terms of what he had allegedly, already said [The Straits Times 6 Mar 2013 page B13].

In both news reports, the reasons cited by Justice Rajah are clear: [1] CEH’s case is not complex, and [2] Singapore lawyer perfectly capable.

Despite the amendments to the Legal Profession Act [Cap 161] which allegedly make it ‘slightly easier for foreign senior counsel to appear in the Singapore courts on an ad hoc basis,’ the courts still have a high degree of ‘discretion in assessing the merits of each ad hoc admission application.’

If we are serious in our thinking that SCs [Senior Counsels] are the equivalent of QCs [Queen Counsels], then it would not be logical to argue that a QC could only be admitted here “when the case is complex and involves novel points of law.”

And by what standards should competency of a lawyer be judged? To be fair, not all lawyers are equally competent, whether they are SCs or not.

The fact that a judge is allowed the sole discretion in deciding whether a case is or is not complex is itself a system flaw. Why should engagement of a QC be a matter that rests solely with the judge? The defendant is the one under prosecution and thus the defendant should be the one to decide on the kind of legal expertise he/she thinks would serve his/her interests best. It cannot be overemphasized, losing a court case can be disastrous, financially and/or socially.

What if the defendant and his/her lawyer think a QC would be far more competent than any of the lawyers from the local fraternity who may be available as legal representative? For example, it would be difficult to argue that a case of defamation is not complex. In the defamation suit initiated by Lee Kuan Yew against the Far Eastern Economic Review [FEER] in 1987, QCs were engaged by both sides; a further point of interest is: which party – the plaintiff or the defendant – was the first in deciding on engagement of a QC?

In the defamation case initiated by Lee Kuan Yew and Lee Hsien Loong against FEER [2008], the judge thought the case was not sufficiently complex to justify engagement of a QC when FEER and their lawyer sought permission to engage a QC. So, this particular judge decided on behalf of the defendant, and was presumably not concerned about the repercussions or consequences of his decision. FEER lost the case and eventually exited from the corporate world.

Whether something is a matter of public interest cannot be other than a subjective issue, to be decided, perhaps, on which side the majority consensus falls on.

A remark that someone else considers defamatory or libelous may be considered as a matter of public interest by the maker, but when the case goes to court it would be up to the representing lawyers to advance their arguments and the presiding judge to make the judgment. But the judge’s decision or judgment may not coincide with the consensus of the public. The public may still think that the judge has made a bad decision or judgment.

We have witnessed some bizarre and/or unsatisfactory judgments or actions emanating from our law courts.

To repeat, we should not be seen as a roadblock to justice.

13 Responses to “Defendants should be free to choose; the judge should not be allowed to decide on whether a case is complex or otherwise.”

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