UN Basic Principles Report Annex 4 Asia and The Middle East

UN Basic Principles on the Role of Lawyers:
independence of the legal profession and

lawyer/client rights worldwide
Annex 4: Asia and the Middle East

Annex 4A: Jordan Case Reports
Jordan#1
Case name Judgment No. 553/2016
Mr. Issam Mohammed Anabtawi (the appellant) v Mr. Azzam

Hilmi Anabtawi (the respondent)
Name of tribunal Jordanian Court of Cassation (Civil Division)
The Jordanian Court of Cassation is the final court of appeal in

civil and criminal cases in Jordan. It is the equivalent of the UK
Supreme Court and hears cases that raise a point of law from all
Jordanian governorates.
In this case, the point of law raised was the admissibility of an

attorney’s testimony in court against such attorney’s client,
thereby regarding the interpretation of lawyer-client confidentiality
in the Jordanian judicial system.
Case number 553/2016
Date of judgment 2016
Is the claimant/applicant a No
lawyer him/herself or
acting as legal
representative of a client?
Brief summary of facts In the Court of First Instance proceedings, the appellant
(defendant in the initial proceeding) had issued a promissory note
in favour of the respondent (claimant in the initial proceeding), in
an amount of JOD 43,500 due on 26 February 2012, which the
appellant refused to honour.
As part of his defence, the defendant claimed that the promissory

note was void as it was a mere “accommodation bill” issued as
security for the claimaint, and the defendant never intended to
fulfill it.
The appellant had requested that the respondent’s attorneys

testify as witnesses against the respondent in reference to the
promissory note being issued as security.
Both attorneys abstained from providing such testimony and the

Court of First Instance, in accordance with article 60 of the
Jordanian Bar Association Law, accepted such abstinence.
Article 60(4) of the Jordanian Bar Association Law states that a

lawyer shall be prohibited, under the penalty of liability, from
testifying against their client regarding a case they are assigned
to, or to divulge a secret that they are entrusted with or have
2
come to know through their profession, even after the termination
of the power of attorney in question.
The appellant stated, in the grounds for appeal to the Court of

Appeal, that the Court of First Instance had erred in accepting the
attorneys’ refusal to provide their testimonies against the
respondent.
The Court of Appeal upheld the Court of First Instance’s

acceptance of the attorneys’ refusal to testify as witnesses and
stated that allowing such testimonies would be in contravention
of article 60 of the Jordanian Bar Association Law and the
principle of lawyer-client confidentiality.
The appellant stated, in the grounds for appeal in cassation, that

the Court of First Instance and the Court of Appeal had erred in
accepting the attorneys’ refusal to testify against the respondent.
The Court of Cassation (Civil Division) upheld the Court of

Appeal’s decision and stated that the refusal to hear the
testimony of both attorneys, as they are attorneys in the case in
question, evidenced by the power of attorney relied upon in the
case file, is in accordance with the provisions of the law, thereby
rejecting the appellant’s ground for appeal.
Brief summary of issues Accepting testimony from a party’s attorney against such party
relating to the role of would be in contravention of article 60 of the Jordanian Bar
lawyers Association Law No. 11 of 1972 and Article 37 of the Jordanian
Evidence Law No. 30 of 1952.
Does the case refer to the No reference is made to the UN Basic Principles.
UN Basic Principles by
name? If so, what are the
named Principles?
Is this judgment, or in any The part of the judgment that addressed lawyer-client
case the relevant confidentiality was an obiter dictum.
paragraphs regarding
lawyers, binding in your The judgment is binding in the jurisdiction, as it is a direct
jurisdiction? Is it an obiter application of the provisions of the law.
dictum or binding (and, if
binding, whether it is
binding on everyone or just
the parties involved)?
Relevant paragraphs of Court of Cassation (Civil Division) Judgment No. 553/2016,

judgment paragraph 8:
“In response to the grounds for appeal in cassation:
In response to the first ground in which the appellant stated that

the Court of Appeal had erred in its decision not to permit the
witness testimony of the attorneys […] Upon analysis of article
60(4) of the Jordanian Bar Association Law No. 11 of 1972 which
3
states that (A lawyer shall be prohibited, under the penalty of
liability, from): […]
4. Testifying against his client regarding the case he was

assigned to, or to divulge a secret that he was entrusted with or
has known through his profession related to the clients' secrets
before the judiciary in various circumstances, even after the
termination of his power of attorney.
Thus, in this present case, the refusal to hear the testimony of

both attorneys […], as they are representing a party in this case
as evidenced by the power of attorney relied upon in the case
file, is in accordance with the provisions of the law. Therefore,
this ground for appeal is invalid.”
Legislation Article 60(4) of the Jordanian Bar Association Law No. 11 for the
year 1972 states the following:
“A lawyer shall be prohibited, under the penalty of liability, from

testifying against his client regarding the case he was assigned
to, or to divulge a secret that he was entrusted with or has known
through his profession related to the clients' secrets before the
judiciary in various circumstances, even after the termination of
his power of attorney.”
Article 37 of the Jordanian Evidence Law No. 30 for the year

1952 further states the following:
“A lawyer, agent, doctor, or anyone who becomes aware of a fact

or information through his profession, may not disclose such fact
or information, even after the termination of his service or
capacity, unless such disclosure is for the purposes of testifying
in relation to the committal of a felony or misdemeanor, provided
that this does not violate the provisions of special laws issued for
such purpose.”
Additional comments It is worth mentioning that the abovementioned Article 37 of

Jordanian Evidence Law No. 30 for the year 1952 allows for the
disclosure of facts or information for the purposes of testifying in
relation to the committal of a felony or misdemeanor, subject to
the provisions of special laws issued for such purpose.
Jordan#2
Case name Judgement No. 3558/2019
Mr Bahaa al-Din Imran Muhammad Abu Amer (the appellant) v

Public Right (the respondent)
Name of tribunal Jordanian Court of Cassation (Civil Division)
4
The Jordanian Court of Cassation is the final court of appeal in
civil and criminal cases in Jordan. It is the equivalent of the UK
Supreme Court and hears cases that raise a point of law from all
Jordanian governorates.
In this case, the point of law raised was the right to appoint an
attorney and the access to legal aid when a person is unable to
retain a lawyer.
Case number 3558/2019
Date of judgment 2019
acting as legal
Brief summary of facts In the Irbid Criminal Court proceedings, the appellant (defendant
in the initial proceedings) was charged with a number of offences
including theft and possession of an unlicensed firearm and
sentenced with 10 years of temporary hard labour.
The appellant appealed the decision to the Irbid Court of Appeal,

which upheld the Irbid Criminal Court judgment but revisited the
sentence imposed, in application of mitigating circumstances, to
become five years of temporary hard labour.
The appellant stated, in the grounds for appeal in cassation to

the Court of Cassation (Criminal Division), that the Irbid Criminal
Court and the Irbid Court of Appeal had erred in proceeding with
the trial while denying the defendant the sacred right of defence
and the right to present his defence evidence.
The Court of Cassation (Criminal Division) held that the Irbid

Criminal Court had proceeded with the trial against the Appellant
without the presence of his attorney, in contravention of Article
208 of the Criminal Procedures Law.
Article 208 of the Criminal Procedures Law requires the

appointment of an attorney for the defendant in every trial
session, and in the case that the defendant informs the court that
they no longer have an attorney and is unable to appoint an
alternative due to financial difficulties, then the head of the court
shall appoint such attorney for them.
The Court of Cassation (Criminal Division) repealed the decision

of the Irbid Criminal Court and considered the trial procedures in
the criminal case without the presence of a lawyer to be null.
Further, the Court of Cassation repealed the Court of Appeal’s

decision and decided that it was premature and in contravention
of the principles of law.
5
Therefore, the Court of Cassation (Criminal Division) did not
address the other grounds for appeal presented by the appellant
and decided to return the case file to the Irbid Criminal Court for
retrial, in light of the Court of Cassation (Criminal Division)’s
holding and in application of the legal requirements.
Brief summary of issues The Court of Cassation (Criminal Division) held that all trial
relating to the role of procedures carried out in the criminal case proceedings without
lawyers the presence of a lawyer were null, therefore repealing the
decision.
This judgment is a reinforcement of the right to access to counsel

that is also estabished in Jordanian legislation.
Does the case refer to the No reference is made to the UN Basic Principles.
named Principles?
Is this judgment, or in any The judgment is binding in the jurisdiction, as it is a direct

case the relevant application of the provisions of the law.
lawyers, binding in your
jurisdiction? Is it an obiter
Relevant paragraphs of Court of Cassation (Criminal Division) judgment, paragraph11:

judgment
“Upon examination of the case file, the Court of Cassation finds
that the Irbid Criminal Court proceeded with the trial procedures
against the defendant (appellant) Bahaa al-Din Imran
Muhammad Abu Amer without the presence of an attorney to
represent him in accordance with the provisions of article (208) of
the Criminal Procedures Law, which requires the appointment of
an attorney for the defendant in every trial session and in the
case that the defendant informs the court that he no longer has
an attorney and is unable to appoint an alternative due to
financial difficulties, then the head of the court shall appoint such
attorney for him.
In the case presented: we find that the criminal court proceeded

with the trial procedures without verifying or asking the defendant
whether he had an attorney to represent him and did not appoint
an attorney to represent him, while being aware that the
defendant was entitled to have an attorney appointed to
represent him before the Irbid Public Prosecutor due to his
statement that he is financially unable to appoint an attorney to
accompany him in judicial procedures, pursuant to article (208/1)
of the amended Criminal Procedures Law No. (32) of (2017).
Whereas the [Irbid] Criminal Court proceeded with the trial

procedures and heard the witness of the public prosecutor,
6
without the presence of an attorney for the defendant, which in
result renders the procedures that took place in the [Irbid
Criminal Court] criminal case no. (392/2019) in relation to the
defendant (appellant) null. Further, whereas the [Irbid] Court of
Appeal did not take into account the aforementioned in its
decision, such decision is premature and contrary to the
principles of law, which in turn must be rescinded for this reason.
Therefore, without the need to respond to the rest of the grounds

of appeal, we decide to rescind the appealed decision and return
the papers to their source in order to proceed with the case in
light of what we have shown.”
Legislation Article 208(1) of the Criminal Procedures Law No. 9 for the year
1961 states the following:
“In felonies punishable by execution, life imprisonment, perpetual

hard labour or temporary hard labour for a period of ten years or
more, an attorney for the defendant must be present at each trial
session, and if the defendant informs the court that he no longer
has an attorney and is unable to appoint an attorney due to
financial difficulties, the head of the court shall appoint an
attorney to represent the defendant, and the fees for such
attorney shall be paid in accordance with the regulations issued
for this purpose.”
Additional comments It is worth noting that, although not mentioned in the judgment,
Article 100 of the Jordanian Bar Association Law No. 11 of 1972
states that the Jordanian Bar Association may assign a lawyer to
provide a free professional service once a year, which may take
form of providing free legal representation for a person who is
unable to pay any legal fees.
Annex 4B: India Case Reports
1. Principle 1: all persons are entitled to call upon the assistance of a lawyer of their
choice to protect and establish their rights and to defend them in all stages of
criminal proceedings.
(A) India inherited the common law system and with it, the principle that every person
has a right to be defended in a court of law irrespective of how “wicked, depraved,
vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may
be regarded by society”.1
(B) Professional ethics stipulated in the Standards of Professional Conduct and

Etiquette laid down by the Bar Council of India – in exercise of statutory functions
under the Advocates Act, 1961; the act that regulates the legal profession –
1 A. S. Mohammed Rafi v. State of Tamil Nadu Represented by Home, https://indiankanoon.org/doc/1355688/ @

paragraphs 17-29; (2011) 1 SCC 688@paragraphs 12-21 for a rehearsal of the cab rank rule in the US, UK, and
India.
7
require that a lawyer cannot refuse a brief if a client is willing to pay their fees and
they are not otherwise engaged. 2
(C) Where a bar association resolved that no lawyer would defend a policeman
accused of assaulting a lawyer, the Supreme Court held that “such resolutions
are wholly illegal, against all traditions of the bar, and against professional
ethics….. a disgrace to the legal community” and declared all such resolutions
null and void because “..it is the duty of a lawyer to defend no matter what the
consequences…..”3
(D) In 2010, the Supreme Court declared that administering narcoanalysis, polygraph
tests and Brain Electrical Activation Profile tests without the consent of the person
being tested, violated Fundamental Rights. One of the bases, among many
others, for the declaration of unconstitutionality was the finding that the tests
compromised effective exercise of the right to consult a lawyer. The court held
that effective exercise of the right to consult a lawyer required that the person
being tested should be able to act on such advice and exercise autonomy in
deciding whether to reveal information. In allowing information to be extracted
against a person’s will, the tests compromised the person’s ability to exercise
autonomy in deciding whether to reveal or suppress information and thereby
rendered the right to receive legal advice ineffective. 4
2. Principles 5, 6 and 7: (5) governments shall ensure that all persons are immediately
informed by the competent authority of their right to be assisted by a lawyer of
their own choice upon arrest or detention or when charged with a criminal offence.
(6.) Any such persons who do not have a lawyer shall, in all cases in which the
interests of justice so require, be entitled to have a lawyer of experience and
competence commensurate with the nature of the offence assigned to them in
order to provide effective legal assistance, without payment by them if they lack
sufficient means to pay for such services. (7.) Governments shall further ensure
that all persons arrested or detained, with or without criminal charge, shall have
prompt access to a lawyer, and in any case not later than forty-eight hours from
the time of arrest or detention.
(A) The Indian Constitution has a Bill of Rights – its Fundamental Rights chapter (part
III of the Constitution running from article 12 through article 35). Clauses (1) and
(2) of article 22, in that chapter read as follows:
(i) No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner
of his choice.
(ii) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such
2 Ibid, para 32 @ pg. 5 of Indiankanoon and para 24 @ pg. 694 of SCC.

3 Ibid, para 16 @ pg. 2 of Indiankanoon and para 10, page 690-691 of SCC.
4 Selvi v. State of Karnataka, https://indiankanoon.org/doc/338008/ para 192 @ page 80; (2010) 7 SCC 263 @ para
247, page 377 of SCC.
8
arrest excluding the time necessary for the journey from the place of
arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate,
stipulates that persons shall not be denied the right to consult and be
defended by a legal practitioner of choice.
Free legal aid
(B) While article 22 guaranteed the right to consult and be defended by a lawyer, the
Constitution, as originally enacted, did not impose a duty upon the state to provide
free legal services to those who could not afford paid legal representation. Some
high courts promulgated rules mandating trial courts under their supervision to
appoint advocates to defend accused in cases where a capital sentence was
possible and where the accused did not have the means to engage an advocate 5
and enforced these rules.
(C) In 1963, the Kerala High Court struck “..a note of warning against the practice of
some of the Sessions Judges appointing raw and inexperienced juniors to defend
the accused in capital cases.” The court held that if “…inexperienced advocates
alone are available to defend such unfortunate accused, the court has a primary
duty to come to the aid of the accused by putting timely and useful questions and
warning the advocates from treading on dangerous grounds.” The court found it
unfortunate that instead, the trial court in the case before it had “freely made use
of the defects resulting from the inexperience of the advocates...” to build the
case against the accused.6
(D) The Gauhati High Court held,
(i) in 1968, that a capital trial conducted without legal assistance to the
accused was vitiated7 and,
(ii) in 1969 that “No person can be allowed to lose his life in an established
Court of Law under any civilised system without affording an opportunity
of defence. The reason that the accused did not ask for a lawyer or did
not know his rights to exercise the same to ask lor an opportunity for
being defended by a lawyer of his choice, does not absolve the trial court
from its duty to arrange for his defence.”8
(E) In 1973, a new Code of Criminal Procedure (‘CRPC, 1973’, for short) was enacted
to replace the pre-independence law that governed criminal procedure – the
Code of Criminal Procedure, 1898. The CrPC 1973 stipulated that in trials that
happened before courts of sessions – trials imposing punishments of seven years
imprisonment and above – the court would assign a lawyer to an accused without
5 Hyderabad Circular No. 4738, 22-4-32F, dated 15 January 1923, Rule 228 of the Madras Criminal Rules of Practice as
cited in Sohoni’s Code of Criminal Procedure, R. Gopal, 20th Edition, @ page 3910.
6 Kunnummal Mohammed And Anr. v. State Of Kerala, https://indiankanoon.org/doc/6965/@ page 9; 1963 CriLJ 175.
7 Nasia Pradhan And Ors. v. The State, https://indiankanoon.org/doc/393773/ @ page 3; 1970 CriLJ 396.
8 The State v. Tikaram Haneri, https://indiankanoon.org/doc/1221386/ @ page 1; 1970 CriLJ 780.
9
sufficient means to engage one. This, however, was a right limited only to trials
involving grave offences. And more importantly, this was only a statutory right and
not a fundamental right or a right under the Constitution.
(F) In January 1977, the Constitution was amended to stipulate that the state shall
“…provide free legal aid”. The amendment, however, was introduced in the non-
justiciable Directive Principles of State Policy Chapter (part IV of the Constitution)
and not in its Fundamental Rights chapter. As a result, the position as it stood in
1977 was that while no person could be denied the right to consult and be
defended by a lawyer, there was no right to free or subsidised legal services and
the State still did not have an obligation to ensure that all persons had access to
lawyers. To those who could not afford lawyers, therefore, the right to be defended
by a lawyer remained only on paper.
(G) On 25 January 1978, in Maneka Gandhi versus Union of India 9, the Supreme
Court overturned settled precedent to significantly widen the scope of protections
offered by the Constitution’s Fundamental Rights chapter. This decision was to
set off a series of decisions and ultimately result in a guarantee of the right to free
legal aid in all criminal proceedings. 10
(H) On 17 August 1978, a few months after the court’s Maneka Gandhi decision, the
Supreme Court held that the requirement that procedure established by law be
just, fair, and reasonable, meant that “…where the prisoner is disabled from
engaging a lawyer on reasonable grounds such as indigence…” the prisoner was
entitled to competent, court appointed counsel and that this right was not limited
to the trial stage but included appellate remedies. 11
(I) In March 1979, the Supreme Court reiterated that a procedure which did not make
legal services available to an accused person too poor to afford a lawyer “….who
would, therefore, have to go through the trial without the assistance, cannot
possibly be regarded as ‘reasonable, fair and just’”. 12
(J) In April 1979, in Hussainara Khatoon V, the Supreme Court was dealing with
public interest litigation in the matter of persons who were being held for long
periods in jail pending police investigation into their culpability without being
formally charged by the police. Indian law permits detention without charge for up
9 Maneka Gandhi v. Union of India, https://indiankanoon.org/doc/1766147/ @ page 122; 1978 SCR (2) 621; (1978) 1
SCC 248.
10 Until Maneka Gandhi, the life and personal liberty clause of the Constitution – Article 21 – was understood as
guaranteeing only that a person could not be deprived of life or liberty except in accordance with the procedure
prescribed by a law passed by a competent legislature: nothing more. It did not matter if the procedure prescribed by
the law enacted by competent legislature was patently unreasonable because article 21 only required “procedure
established by law” and not ‘fair’ or ‘reasonable’ procedure. In Maneka Gandhi, the Supreme Court declared that it was
not sufficient for a law depriving life or liberty to be enacted by a competent legislature, such a law would have to also
be “just, fair and reasonable”. The court reached this conclusion by reasoning that the right to life and personal liberty
must be read along with the right to equality and the rights to certain fundamental freedoms stipulated in article 19 of
the Constitution as part of a troika of rights. When so read, the right to personal liberty was not just a guarantee that
liberty will not be deprived except per procedure stipulated by a competent legislature but that the procedure stipulated
by the competent legislature must meet the reasonableness/non-arbitrariness requirement of the right to equality.
11 Madhav Hayawadhanrao Hoskot versus State of Maharashtra, https://indiankanoon.org/doc/513169/ @ page 16
(1978) 3 SCC 544@557.
12 Hussainara Khatoon and ors. (IV) v. Home Secretary, State of Bihar, https://indiankanoon.org/doc/1373215/ @ page
6 (1980) 1 SCC 108, para 6 @ page 103.
10
to 90 days for serious offences and 60 days for less serious offences. When the
police do not charge at the end of the 90/60 day period, the person becomes
entitled to bail as a matter of statutory right. In Hussainara Khatoon V, it was
brought to the court’s notice that large numbers of people were in jail for periods
well in excess of 90 days without being charged by the police because they had
no legal representation and therefore did not know they were entitled to bail. The
court held that its Maneka Gandhi decision declaring that procedure had to be
just, fair, and reasonable for it to be constitutional imposed constitutional
obligations on the state and on magistrates. The state had the obligation to
provide a lawyer at its own cost to persons who had spent more than the 60- or
90-day period permitted for custody without charge by the police so that they may
have legal representation to enable them to apply for bail. Magistrates had the
constitutional obligation to bring to the attention of arrestees their right to be
released on bail on the expiry of the 90- or 60-day period and to ensure that the
arrestee’s right to a lawyer at state cost was met. 13
Access to Counsel: At what Stage
(K) In Khatri, December 198014, the court held that the constitutional obligation to
provide free legal services to an indigent arose when the arrestee was produced
before a magistrate for the first time within twenty-four hours of arrest 15 and that
it was incumbent on the magistrate before whom the arrestee was produced to
inform the arrestee of their right to obtain free legal services at the cost of the
state.
(L) While in Khatri (and in the subsequent Supreme Court decision of Suk Das16) the
Supreme Court carved out some exceptions to the provision of free legal aid
“…...prostitution or child abuse and the like, where social justice may require that
free legal services need not be provided by the state”, there seem to be no
decisions of the superior courts that deal with this exception and several that have
ignored it. In Rajoo Alias Ramakant v State of Madhya Pradesh 17, the Supreme
Court noticed the exceptions carved out in Khatri and Suk Das and held that
“…We have some reservations whether such exceptions can be carved out
particularly keeping in mind the constitutional mandate and the universally
accepted principle that a person is presumed innocent until proven guilty. If such
exceptions are accepted, there may be a tendency to add some more, such as in
cases of terrorism, thereby diluting the constitutional mandate and the
fundamental right guaranteed under article 21 of the Constitution. However, we
need not say anything more on this subject since the issue is not before us.” This
excerpt from Rajoo Alias Ramakant v. State of Madhya Pradesh was cited in a
13 Hussainara Khatoon and ors. (V) v. Home Secretary, State of Bihar,

https://www.casemine.com/judgement/in/5609abe2e4b014971140d84e ; (1980) 1 SCC 108.
14 Khatri and others (II) v. State of Bihar and Others, https://indiankanoon.org/doc/1122133/ @ page 4; (1981) 1 SCC
627@ para 5, page 631.
15 Section 57 of the Code of Criminal Procedure 1973, the procedural law that governs all criminal proceedings in India
stipulates that every arrested person must be produced before a magistrate within 24 hours of their arrest.
16 Suk Das v. Union Territory of Arunachal Pradesh, https://indiankanoon.org/doc/765136/ @ page 4; (1986) 2 SCC
401.
17 Rajoo v. State of Madhya Pradesh, https://indiankanoon.org/doc/191628518/ @ page 3;(2012) 8 SCC 553.
11
subsequent decision of the Supreme Court - Anokhilal v State of Madhya
Pradesh18.
(M) Failure to provide a lawyer at state expense in the pre-trial stage would make the
magistrate whose duty it was to ensure such provision liable to disciplinary
proceedings and render the state liable in damages. 19
(N) Failure to provide a lawyer at state expense at the commencement of trial vitiated
the trial entitling the arrestee to a de novo trial. 20
(O) In a celebrated decision in April 1978, Nandini Satpathy v P.L. Dani, 21 the
Supreme Court repelled the contention of the state that the right against self-
incrimination in the Indian Constitution – article 20 (3) – was available only during
trial proceedings and was not available during interrogation. The court also held
that the injunction against compelled testimony in article 20 (3) was available
against any form of compulsion – “any mode of pressure, subtle or crude, mental
or physical, direct or indirect but sufficiently substantial, applied by the policeman
for obtaining information from an accused…”. The court stipulated guidelines for
the police, including, that the right to consult an advocate of choice shall not be
denied to any person arrested; the services of a lawyer shall be available for
consultation to accused “under circumstances of near custodial interrogation”
(emphasis supplied); and, it was “prudent for the police to permit the advocate of
the accused, if there be one, to be present at the time he is examined.” The court
was, however, careful to clarify that the lawyer “cannot supply answers or whisper
hints or otherwise interfere with the course of questioning except to intercept
where intimidatory tactics are tried, caution his client where incrimination is
attempted and insist on questions and answers being noted where objections are
not otherwise fully appreciated. He cannot harangue the police but may help his
client and complain on his behalf…”.
(P) However, later decisions of the Supreme Court have questioned Nandini
Satpathy’s declarations that "the prohibitive sweep of article 20(3)” (the right
against self-incrimination) does not commence only in court but “goes back to the
stage of police interrogation” and that a “person called for interrogation is entitled
to the presence of his lawyer when he is questioned”. 22 What is accepted without
dispute is that “The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.” 23
18 Anokhi Lal v. State of Madhya Pradesh, https://indiankanoon.org/doc/110783225/ @ page 15; (2019) 20 SCC 196.
19 Mohd. Ajmal Kasab v. State of Maharashtra, https://indiankanoon.org/doc/193792759/ @ para 488 in page 127;
(2012) 9 SCC 1.
20 Ibid @ para 477 @ page 187 in SCC and para 487 @page 127 in Indiankanoon; Suk Das v. Union Territory of
Arunachal Pradesh, https://indiankanoon.org/doc/765136/; (1986) 2 SCC 401; Tyron Nazareth v. State of Goa,
https://www.casemine.com/judgement/in/56b48ccd607dba348ffeef70; 1994 Supp (3) SCC 321.
21 Nandini Sathpathy v. Dani (P.L.) and anr., https://indiankanoon.org/doc/1938988/ @ page 20; (1978) 2 SCC 424.
22 Poolpandi v. Supdt., Central Excise, https://indiankanoon.org/doc/885203/ para 11 @ pg. 8;(1992) 3 SCC 259 @
para 11; Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal Kishore Samra,
https://indiankanoon.org/doc/1020524/ para 25@ page 9; (2011) 12 SCC 362 @ para 23; Mohd. Ajmal Kasab v.
State of Maharashtra, https://indiankanoon.org/doc/193792759/ para 448 @ page 117 – para 468 @ page 122;
(2012) 9 SCC 1, para 439 @ page 174 – para 458 @ page 182 of SCC.
23 D.K. Basu v. State of West Bengal, https://indiankanoon.org/doc/501198/ @ page 14; (1997) 1 SCC 416 @ para
35, pg. 435-436 of SCC; Dr Ashwini Kumar v. Union Of India Ministry Of Home @ page 13;
12
(Q) The Supreme Court has also held that where a person volunteers to take one of
the narcoanalysis, polygraph or Brain Electrical Activation Profile tests they
should be given access to a lawyer who will explain the physical, emotional and
legal implications of the test. 24
Failure to ensure Free Legal Aid in appellate proceedings
(R) In Mohammad Sukur Ali v State of Assam 25 , the Supreme Court held that a
criminal appeal cannot be decided in the absence of counsel for the accused
even if the nonappearance was deliberate or on account of counsel’s negligence.
In such situations, the court held that the court should appoint a counsel who is
practising on the criminal side as amicus curiae and decide the case after fixing
another date and hearing him. If on the next date of hearing the counsel, who
ought to have appeared on the previous date but did not appear, now appears,
but cannot show sufficient cause for his non-appearance on the earlier date, then
he will be precluded from appearing and arguing the case on behalf of the
accused. But, in such a situation, it is open to the accused to either engage
another counsel or the court may proceed with the hearing of the case by the
counsel appointed as amicus curiae.
(S) In K.S. Panduranga, however, Mohammad Sukur Ali v State of Assam was
declared per incuriam being irreconcilable with an earlier decision, Bani Singh, in
which the court had held that “the law does not require that the court must adjourn
the case if the appellant and his lawyer are absent. It may do so as a matter of
prudence or indulgence but it is not bound to adjourn the matter.” The K.S.
Panduranga decision held that “if the accused is in jail and cannot, on his own,
come to court, it would be advisable to adjourn the case and fix another date to
facilitate the appearance of the accused-appellant if his lawyer is not present, and
if the lawyer is absent and the court deems it appropriate to appoint a lawyer at
the State expense to assist it, nothing in law would preclude the court from doing
so.”26 This was followed in Surya Baksh Singh.27
(T) In Christopher Raj vs K Vijayakumar, the court did not cite or refer to the earlier
decisions but held that “9. … When the accused has not entered appearance in
the High Court, in our view, the High Court should have issued second notice to
the appellant-accused or the High Court Legal Services Committee to appoint an
advocate or the High Court could have taken the assistance of amicus curiae.
When the accused was not represented, without appointing any counsel as
amicus curiae to defend the accused, the High Court ought not to have decided
the criminal appeal on merits; more so, when the appellant-accused had the
benefit of the acquittal. The High Court erred in reversing the acquittal without
affording any opportunity to the appellant-accused or by appointing an amicus
https://indiankanoon.org/doc/19090773/ & Social Action Forum v. Union Of India And Ors. Ministry Law,
https://indiankanoon.org/doc/81618143/ @page 15; (2018) 10 SCC 443.
24 Ibid., para 265, page 383.
25 Mohd. Sukur Ali v. State of Assam, https://indiankanoon.org/doc/1470346/ @ page 1; (2011) 4 SCC 729.
26 K.S. Panduranga v. State of Karnataka, https://indiankanoon.org/doc/155199616/ @ page 7; (2013) 3 SCC 721 @
734.
27 Surya Baksh Singh vs State Of U.P, https://indiankanoon.org/doc/73706398/ para 9 @ page 4; (2015) 1 SCC (Cri)
313.
13
curiae to argue the matter on his behalf.” The court set aside the High Court’s
judgement of conviction and directed the High Court to “…afford sufficient
opportunity to both parties and decide the matter afresh in accordance with
law...28
“Effective counsel”
(U) The right to defence includes the right to effective and meaningful defence. In
Bashira's case (AIR 1968 SC 1313) 29, the Supreme Court held that the lawyer
appointed at state expense to conduct trial must be allowed sufficient time to
prepare and that failure to give the state appointed Counsel sufficient time to
prepare, vitiated trial.
(V) The Supreme Court held that “…assigning an experienced defence counsel to an
indigent accused is a facet of fair procedure and an inbuilt right to liberty and life
envisaged under article 14, 19 and 21 of the Constitution” and it was unfair if a
“…youngster from the bar who has either a little experience or no experience is
assigned to defend…”. The court further held that “It is high time that senior
counsel practising in the court concerned, volunteer to defend such indigent
accused as a part of their professional duty.”30
(W) In Anokhilal v. State of Madhya Pradesh,31 the Supreme Court held that in cases
where there is a possibility of life sentence or death sentence, only advocates
with 10 years’ practice at the Bar are to be considered for appointment as Amicus
Curiae or through legal services authorities to represent an accused, and where
the case before a High Court concerns confirmation of a death sentence, senior
advocates of the court must first be considered to be appointed as amicus curiae.
The court also held that whenever a counsel is appointed as amicus curiae,
reasonable time must be provided to them to enable the counsel to prepare and
while there can be no hard and fast rule, a minimum of seven days’ time may
normally be appropriate and adequate. And further, that counsel appointed as
amicus curiae on behalf of the accused must normally be permitted to have
meetings and discussion with the accused. 32
(X) Where counsel appointed by the court stopped attending proceedings, several
witnesses were examined in the absence of the accused’s counsel, and new
counsel appointed to replace the absentee counsel as trial neared conclusion did
not take remedial measures to address failure to cross-examine material
witnesses, the Supreme Court held that the trial was vitiated and ordered a
retrial.33 In doing so, the court reviewed the law on the right to a fair trial and re-
28 Christopher Raj v. K Vijayakumar, https://indiankanoon.org/doc/114414653/ para 11 @ page 3; (2019) 7 SCC 398.

29 Bashira vs State Of U.P, https://indiankanoon.org/doc/63844/ @ page 6; 1968 AIR 1313, 1968 SCR (1) 3, page 9.
30 Kishore Chand v. Himachal Pradesh, https://indiankanoon.org/doc/955616/ @ page 10-11; AIR 1990 SC 2140, paras
13 and 14 @ page 297.
31 Anokhi Lal v. State of Madhya Pradesh, https://indiankanoon.org/doc/110783225/ para 22 @ page 23; (2019) 20 SCC
196.
32 Senior Advocates are designated by the High Courts and Supreme Court ____. The designation is functionally similar
to the ‘Queen’s Counsel’ designation in the UK.
33 Mohd. Hussain @ Julfikar Ali vs The State (Govt. Of Nct) Delhi, https://indiankanoon.org/doc/185913157/ para 17 @
page 31; (2012) 2 SCC 584.
14
iterated that the right of cross-examination was the right of every accused in a
criminal trial; free legal services to the poor and needy are an essential element
of any “reasonable, fair and just” procedure; and, such legal services must ensure
the Right to “effective counsel”. The Supreme Court approved of an earlier High
court decision that absence of proper cross examination may result in miscarriage
of justice and the court has to guard against it. 34
3. Principle 19. No court or administrative authority before whom the right to counsel
is recognized shall refuse to recognize the right of a lawyer to appear before it for
his or her client unless that lawyer has been disqualified in accordance with
national law and practice and in conformity with these principles.
(A) It is well established in Indian law that no court or administrative authority before
whom the right to counsel is recognised shall refuse to recognise the right of
lawyers to appear.
(i) Article 22(1) of the Constitution declares the right of every person
arrested to consult and be defended by a legal practitioner of their choice,
and section 30 of the Advocates Act, 1961 declares the right of a lawyer
to practice before all courts, tribunals, or persons legally authorised to
take evidence, and before authorities or persons before whom advocates
are entitled to practice by law is granted.
(ii) Article 22 (3) of the Constitution, however, excludes ‘enemy aliens’ and
persons detained under laws providing for Preventive Detention from the
rights granted by Article 22(1). This means that persons detained under
preventive detention laws do not have a fundamental right to be defended
by a lawyer.
(B) In non-preventive detention matters, the right conferred on lawyers by section 30

of the Advocates Act, 1961 can only be denied by law, and the law must pass the
test of being “constitutionally reasonable”. 35
(i) In 1995, the Supreme Court held the imposition of an upper age limit of
45 years for enrolment on the State Bar Council – a pre-requisite for the
right to practice as a lawyer – as unconstitutional.36
(ii) In 1977, the Supreme Court upheld the application of section 36 (4),
Industrial Disputes Act, 1947 – that excluded lawyers from appearing
before industrial tribunals – over the right of lawyers to practice law under
section 30 of the Advocates Act, 1961. 37 In 1984, the Supreme Court
upheld the exclusion of lawyers from appearing before authorities under
34 Ram Awadh v State of Uttar Pradesh, https://indiankanoon.org/doc/408862/ para 14 @ page 4; 1999 CrlJ 4083 (All).
35 N.K. Bajpai v. Union of India and Ors., (2012) 4 SCC 653, para 30, pg. 669; https://indiankanoon.org/doc/88343328/
para 19, pg. 9.

36 Indian Council of Legal Aid and Advice and Ors. v. Bar Council of India and Ors., (1995) 1 SSC 732, para 12, pg.
743; https://indiankanoon.org/doc/1542937/ para 12, pgs 8-9.

37 Paradip Port Trust v. Their Workmen, AIR 1977 SC 36, pgs 342-343; https://indiankanoon.org/doc/554556 pgs 4-5.
15
the Maharashtra Restoration of Lands to Scheduled Tribes Act. 38 In
2012, the Supreme Court upheld the constitutionality of a law that
disallowed retired officers of the Customs, Excise and Service Tax
Appellate Tribunal from appearing before it after they had demitted office.
(C) Importantly the Supreme Court has – even in the matter of the constitutional
scheme for preventive detention that disallows appearance/representation
through Counsel – held that where the state is represented by a legal practitioner
or legal advisor it would be unfair for the preventively detained person – the
detenue - to be refused such representation.
“Permitting the detaining authority or the Government to appear before the

Advisory Board with the aid of a legal practitioner or a legal adviser would be in
breach of Article 14, if a similar facility is denied to the detenu. We must therefore
make it clear that if the detaining authority or the Government takes the aid of a
legal practitioner or a legal adviser before the Advisory Board, the detenu must
be allowed the facility of appearing before the Board through a legal
practitioner.”39
(D) The Supreme Court has also held that while persons detained under preventive
detention laws might not have a fundamental right to be defended by a lawyer,
they would still have the right to consult a lawyer “for the purpose of preparing his
representation, advising him as to how he should defend himself before the
Advisory Board and preparing and filing a habeas corpus petition or other
proceedings for securing his release.”40
(E) The Supreme Court has declared the right to be represented by counsel even in
forums where law does not permit such representation if the adverse party had
the assistance of a legally trained mind or a legal practitioner – seemingly
applying the ‘equality of arms’ principle without calling it that. In a proceeding to
determine whether an enquiry authority established by an employer to conduct
disciplinary proceedings in allegations of employee’s misconduct had acted in
accordance with the principles of natural justice, the Supreme Court held that
“…we have reached a stage in our onward march to fairplay in action that where
in an enquiry before a domestic tribunal the delinquent officer is pitted against a
legally trained mind, if he seeks permission to appear through a legal practitioner
the refusal to grant this request would amount to denial of a reasonable request
38 Lingappa Pochanna Appelwar v. State of Maharashtra and Anr., (1985) 1 SCC 479, para 34, pgs 503-504;
https://indiankanoon.org/doc/1145196/ pg. 22.

39 A.K. Roy v. Union of India, (1982) 1 SCC 271, paras 85-93, pgs 330-334; https://indiankanoon.org/doc/875590/ pgs
50-54.
40 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others, 1981 (1) SCC 608; pgs 620-621;
https://indiankanoon.org/doc/78536/ pgs 14-15, approved in A.K. Roy v Union of India, (1982) 1 SCC 271, para 92,
pg. 334; https://indiankanoon.org/doc/875590/ pgs 53-54.
16
to defend himself and the essential principles of natural justice would be violated.”
41
(F) The court went further and held,
“In fact one can go so far as to say that the enquiry officer in order to be fair and
just, whenever he finds the employer appointing legally trained persons as
presenting cum-persecuting officers must enquire from the delinquent employee
before commencement of enquiry whether he would like to take assistance of a
legal practitioner. The option then is with the delinquent employee. In this
connection, we would like to refer to a weighty observation on this point where
despite constitutional inhibition this Court conceded such a right. In A.K. Roy v.
Union of India the learned chief justice while rejecting the contention that a detenu
should be entitled to appear through a legal adviser before the Advisory Board
observed that article 22(3)(b) makes it clear that the legal practitioner should not
be permitted to appear before an Advisory Board for any party.”
(G) Individual lawyers can be debarred from appearing before courts, tribunals and
authorities as punishment for misconduct, the power to discipline lawyers for
misconduct lying exclusively with the state bar councils and the Bar Council of
India.
(H) In addition, the Superior Courts – state High Courts and the Supreme Court –
have the power to lay down rules barring advocates who are in contempt of court
from appearing before them as “a measure necessary to regulate the court’s
proceedings and to maintain the dignity and orderly functioning of the courts”.
The Supreme Court has held however that “it needs to be made clear that the
occasion to take recourse to the extreme step of the barring an advocate from
appearing in court should arise very rarely and only as a measure of last resort
in cases where the wrongdoer advocate does not at all appear to be genuinely
contrite and remorseful for his act/conduct, but on the contrary it shows a
tendency to repeat perpetuate the wrong act (s)” 42
4. Principle 20: lawyers shall enjoy civil and penal immunity for relevant statements
made in good faith in written or oral pleadings or in their professional appearances
before a court, tribunal or other legal or administrative authority.
(A) The common law rule of absolute privilege protecting lawyers in respect of words
written or spoken in the ordinary course of any proceeding before any court or
tribunal, protects lawyers in India only against civil actions and not against
criminal actions for defamation. 43 In every civil action, however, lawyers are
41 Board Of Trustees Of The Port Of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124, para 12, pg.
132; https://indiankanoon.org/doc/1787020/ pg 8.
42 R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, para 241, pgs 187-188;
https://indiankanoon.org/doc/58440/ para 145, pg. 58.

43 Nau Nihal Singh Rana v. Sunil Kumar, CS(OS) No. 1359 of 2011, Delhi High Court, decided on 31 July 2013,
available at http://164.100.69.66/jupload/dhc/SMD/judgement/01-08-2013/SMD31072013S13592011.pdf para 18, pgs

9-10; https://indiankanoon.org/doc/113746557/ para 18, pg. 5, which the Delhi High Court referred to, and accepted
Lord Philips’ formulation of the common law rule in Jones v. Kaney [2011] UKSC 13, "The authorities are clear,
17
entitled to the defence of absolute privilege in respect of anything said or done in
proceedings before authorities that have judicial or quasi-judicial functions, and
is available even in respect of matters which are a “step in setting in motion
judicial or quasi-judicial proceedings.”44
(B) In criminal actions for defamation, lawyers must bring their case within exception
9 to Section 499 that defines defamation under the IPC. However, it is now a
matter of law that courts ought to presume that the lawyer acted in good faith and
upon instructions and ought to require the other party to prove express malice on
the part of the lawyer.45
“A member of the Bar in India has no absolute privilege. Strictly speaking an

advocate who makes defamatory statements in the conduct of a case has no
wider protection than a layman, that is to say, he has to bring his case within the
terms of excep. 9 to section 499 and under section 105, Evidence Act, the burden
of proof would normally be upon him. But in practice the courts have held on
grounds of public policy that an advocate is entitled to special protection and that
if an advocate is called in question in respect of defamatory statements made by
him in the course of his duties as an advocate, the court ought to presume that
he acted in good faith and upon instructions and ought to require the other party
to prove express malice. The obligation of making out a case that the present
petitioner who is an advocate had not acted in good faith and that he had acted
maliciously is, therefore, condition precedent and in the absence of this
necessary ingredient, the present prosecution cannot be sustained.”
…….
“22. A Division Bench of this High Court in the case of Gajanan Laxman
Bhalchandra v. Rangrao Amrutrao Deshpande 1980 Mh.L.J. 821 : 83 BLR 12,
had occasion to consider the applicability of the Ninth Exception to Section 499
of the Indian Penal Code in the context of a lawyer who is required to convey
allegations in the course of cross-examination. The court was dealing with the
vexed question of whether an advocate is liable in cases where he is a
spokesman for the communication of allegations on behalf of his client. Holding
that the Ninth Exception to Section 499 of the Indian Penal Code would apply, the
Court quashed the proceedings and observed:
Converting some questions put in cross-examination by an advocate into

a substratum for a singularly strange charge of criminal offence against
uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties,
for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law."
Also, M.L.Ganesh v. Ca V.Venkata Siva Kumar, Crl. OP. Nos 4669 & 5115 of 2020, Madras High Court, decided on 30
September 2020, available at https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/547477
https://indiankanoon.org/doc/125672738/
44 Brig. B.C. Rana (Retd.) v. Ms. Seema Katoch & Ors., (2013) 198 DLT 35, relying on The Punjabi Bagh Cooperative v.
K.L. Kishwar And Anr., (2002) 95 DLT 573, 2002 (61) DRJ 594; William Francis O'Connor v. Gordon Waldron, AIR
1935 PC 3; Lincoln v. Daniels (1960) 3 All ER 205; Q. B. D.
45 Navin Parekh v. Madhubala Shridhar Sharma And Another, (1992) 94 BOMLR 467;
https://indiankanoon.org/doc/1588959/
18
an advocate would be virtually akin to abuse of judicial process and rank
nothing short of stultifying the very dynamic art of cross-examination and
rendering its object nugatory and infructuous.
It is essential in situations such as this to bear in mind that the discharge of

professional duties necessarily involves the difficult process of conveying
material that may be far from pleasant or far from complimentary, but that cannot
justify a prosecution for defamation.”
Annex 4C: Indonesia Case Reports
Indonesia#1
Case details and analysis This case involved an Indonesian citizen who brought a claim
against a law firm, who had previously represented someone he
had been in dispute with, complaining about their use of a draft
settlement deed. In their counter-claim, the law firm cited the UN
Basic Principles regarding the independence of the legal
profession.
Name of tribunal District Court of Denpasar
Case number 260/Pdt.G/2014/PN.DPS
Link to source https://bit.ly/3dC7UuM
Date of judgment 29 December 2014
Is the claimant/applicant a The defendant is a law firm.

lawyer him/herself or acting
as legal representative of a
client?
Brief summary of facts In 2014, Ade Chairani, an Indonesian citizen resident in London,
sued ASA Law Office, a firm of lawyers based in Bali.
Mr Chairani had previously sued a client of ASA Law Office, PT

Bali Resort. In this previous case, Mr Chairani had proposed a
settlement. PT Bali filed an injunction at the High Court of Justice
Queen’s Bench Division of the Commercial Court in the UK.
In the process, its lawyers (ASA Law Office) used the draft
settlement deed which had previously been prepared by Mr
Chairani as a witness statement.
Mr Chairani sued ASA Law Office for using the witness statement
as a draft settlement deed, accusing them of violating PERMA
1/2008 on the Court-Annexed Mediation Procedure.
In its counter lawsuit, ASA Law Office referred to the UN Basic

Principles on the Role of Lawyers, regarding the independence of
the legal profession: “governments shall ensure that lawyers (a)
19
are able to perform all of their professional functions without
intimidation, hindrance, harassment or improper interference ….”
However, the Court ignored the argument about the UN

Principles and deemed the case inadmissible on ‘error in
personae’ and ‘obscuur libel’ grounds.
Brief summary of issues Independence of the legal profession.

relating to the role of
lawyers
Any additional case The UN Basic Principles were used by ASA Law Office to argue
analysis its case but this argument was ignored by the Court.
Does the case refer to the Principle 16.

named Principles?
Is this judgment, or in any Under Indonesia's civil law system, the common law doctrine
case the relevant of precedent does not exist, and each case must be
paragraphs regarding determined on its own facts and merits, although
lawyers, binding in your consideration may be given to similar cases and academic
jurisdiction? Is it an obiter theories.
binding, whether it is Therefore, court decisions are binding on the parties to that
binding on everyone or just proceeding only.
However, in practice, court decisions may well be taken into
account by the courts in Indonesia in making similar decisions.
Relevant paragraphs of The actions of the defendant, ASA Law Office, to convey its
judgment argument as a legal adviser to its client is also protected by law
and regulations, as is stated inter alia in the following provisions:
Law Number 18 of 2003 concerning Advocates which states:
Article 16: "An advocate cannot be subject to either civil or

criminal prosecution in carrying out his professional duties in
good faith for the benefit of the client's defense in or outside
court proceedings.”
Article 17: “In carrying out their profession, advocates have the
right to obtain information, data and other documents from both
government agencies and from other parties related to these
interests which are needed to defend the interests of their clients
in accordance with laws and regulations.”
Jurisprudence of the Supreme Court of the Republic of

Indonesia Number: 129 K / Kr / 1970 / dated 10 January 1973 or
what is known as ‘Yap Thiam Hien's Jurisprudence’, where in his
capacity as an advocate based on a power of attorney Yap
Thiam Hien was forced to reveal the intimate relationship
between the Reporting witness and law enforcer, and for his
20
actions Yap Thiam Hien was charged with a criminal offence.
This was later dismissed by the Indonesian Supreme Court on
the ground that his suspicion was raised in order to defend his
client's interests.
Constitutional Court Decision Number: 26 / PUU-XI / 2013 dated

14 May 2014 has granted the Judicial Review Request in
relation to Art. 16 of Law No. 18 of 2003 concerning Advocates
and the Constitutional Court: "An advocate cannot be subject to
either civil or criminal prosecution in carrying out his professional
duties in good faith for the benefit of the client's defense in and
outside court proceedings.”
Indonesia#2
Case details and analysis This case concerned an application brought by legal aid lawyers,
arguing that article 16 of the Advocates Law contradicts the
Indonesian Constitution, because it does not protect advocates
from civil or criminal prosecution as a result of carrying out their
duties regarding actions taken outside of court.
The Constitutional Court ultimately agreed with the applicants’

petition.
Name of tribunal Constitutional Court (Mahkamah Konstitusi)
Case number Decision No. 26/PUU-XI/2013
Link to source https://www.bphn.go.id/data/documents/26-2013.pdf
Date of judgment 12 August 2013
Is the claimant/applicant a The applicants are lawyers, working in the legal aid field.
acting as legal
Brief summary of facts The applicants argued that article 16 of the Advocates Law
contradicts the Indonesian Constitution.
Article 16 of the Advocates Law states that:
“An advocate cannot be subject to either civil or criminal

prosecution in carrying out his professional duties in good faith
for the benefit of the client's defense in court proceedings.”
The applicants argued that the application of article 16 should

not be limited to "in court proceedings", meaning that it is now
construed as applying to all court levels and fields of justice.
Instead, it should go further and protect advocates when
performing their profession outside of court, such as when
issuing subpoenas, conducting negotiations, making press
21
statements, issuing announcements via printed and online
media and so on, both in criminal cases and in civil cases.
The Constitutional Court awarded the applicants’ petition and

concluded that article 16 of the Advocates Law violates the
Constitution and has no legal force, unless Art. 16 reads as
follows:
“An advocate cannot be subject to either civil or criminal

prosecution in carrying out his professional duties in good faith
for the benefit of the client's defence in and outside court
proceedings.”
Brief summary of issues Independence of the legal profession, and protection of lawyers
relating to the role of from civil or criminal prosecution as a result of carrying out their
lawyers duties.
Does the case refer to the The case does not refer to the UN Basic Principles by name.
named Principles?
Is this judgment, or in any Yes, a judgment of the Constitutional Court is binding on all.
case the relevant
binding on everyone or
just the parties involved)?
Relevant paragraphs of […] Judgment […] grants the Petitioners' petition;

judgment
Article 16 of Law No. 18 Year 2003 concerning Advocates (State
Gazette of the Republic of Indonesia Year 2003 No. 49,
Supplement to State Gazette of the Republic of Indonesia No.
4288) contradicts the Basic Law of the Republic of Indonesia
Year 1945 and should be interpreted as follows: “An advocate
cannot be subject to either civil or criminal prosecution in
carrying out his professional duties in good faith for the benefit
of the client's defense in and outside court proceedings.”
Article 16 of Law No. 18 of 2003 concerning Advocates (State

Gazette of the Republic of Indonesia of 2003 No. 49,
Supplement to the State Gazette of the Republic of Indonesia
No. 4288) has no binding legal force and should be interpreted
as follows, “An advocate cannot be subject to either civil or
criminal prosecution in carrying out his professional duties in
good faith for the benefit of the client's defense in and outside
court proceedings.”
22
Indonesia#3
Case details and analysis This case involved several lawyers, who argued in the
Constitutional Court that Articles 28 (1) and 32(4) of the
Advocates Law contradict the Indonesian Constitution in
requiring advocates to form one single professional organisation,
and thus impeding the independence of the legal profession.
However, the petition was ultimately rejected by the Court
without the UN Basic Principles being considered in any detail.
Name of tribunal Constitutional Court (Mahkamah Konstitusi)
Case number Decision No. 66/PUU-VIII/2010
Date of judgment 27 June 2011
Is the claimant/applicant a The applicants are lawyers themselves.

acting as legal
Brief summary of facts The applicants argued that Articles 28 (1) and 32(4) of the
Advocates Law contradict the Indonesian Constitution in
requiring that advocates should form one single professional
organisation, and thus impeding the independence of the legal
profession. The Constitutional Court had the competence to
review the applicants’ petition, and expressed some sympathy
for the arguments presented, but dismissed it partly based on
the ne bis in idem principle and also because certain claims
contained in the petition had not been proven sufficiently.

lawyers
Does the case refer to the Principles 1, 16, 23 and 24

named Principles?
Is this judgment, or in any Yes, a judgment of the Constitutional Court is binding on all.
case the relevant
binding on everyone or
just the parties involved)?
Relevant paragraphs of Page 14 to 15:

judgment (text, translated
Regarding the selection of the form of a professional
organization of advocates, the most appropriate would be to
23
into English, and [leave that to] the advocates [themselves] through a democratic
paragraph number) national deliberation mechanism for advocates and not
regulated by law, in which the election of the board of the
organization is carried out openly by advocates throughout
Indonesia by means of a one man per vote process, and a
national consultation among advocates.
It is not like the process of forming and electing the board of

executives of a professional organization of advocates as it is
done today, which is not democratic and transparent.
Even though regional head elections are carried out by means of

a one man per vote process, so advocates should all the more
be examples for democracy. This will become clearer when
referring to international documents such as the ‘IBA Standards
for the Independence of the Legal Profession’ and ‘The UN
Convention: Basic Principles on The Role of Lawyers’.
Any form of professional organization of advocates will be

selected by advocates through a national deliberation by
advocates of Indonesia (whether in the form of a multi-bar or a
federation of bars) does not matter.
What is important is that the choice of the form of the

professional organisation of advocates is determined by the
advocates themselves through a national deliberation
mechanism.
In addition, this professional organisation of advocates must be

able to carry out its functions and duties with full accountability
by applying the principles of good corporate governance.
This is separate from the efforts to form a professional

organization of advocates and the selection of its management
which should not require intervention by the state. This is
because certification of the advocate profession (not a
professional organization of advocates) requires state
involvement, the government to guarantee recognition of the
advocate profession.
Recognition by the state, the government permitting the

advocacy profession to carry out its functions freely without
hindrance, can be seen from article 16, ‘Chapter Guarantees for
the functioning of lawyers from the UN Convention: Basic
Principles on the Role of Lawyers’, as follows:
“Government shall ensure that lawyers (a) are able to perform all
of their professional functions without intimidation, hindrance,
harassment or improper interference; (b) are able to travel and
to consult with their clients freely both within their own country
and abroad; and (c) shall not suffer, or be threatened with,
prosecution or administrative, economic or other sanctions for
any action taken in accordance with recognized professional
duties, standards and ethics.”
24
Page 19:
In examining Article 28 paragraph (1), Article 32 paragraph (4),

and Article 30 paragraph (2) of the Advocate Law above, it is
necessary to put forward international instruments or documents
and conventions to support the examination of Articles of the
Advocate Law against several yardstick Articles of the 1945
Constitution which have been mentioned above.
This is so that the functions and responsibilities of advocates

and professional organizations of advocates can be performed
in accordance with international principles contained in: the UN
Convention’s Basic Principles on the Role of Lawyers (where the
Republic of Indonesia is a member of the United Nations), IBA’s
Standards for the Independence of the Legal Profession
(IKADIN and Peradi are members of the IBA), the World
Conference on the Independence of Justice held in Montreal,
Canada on 5-10 June 1983 (Montreal Declaration 1983), the
International Covenant on Civil and Political Rights (ICCPR)
(ratified through Law Number 12 of 2005 concerning the
Ratification of International Covenant On Civil And Political
Rights [International Covenant on Civil and Political Rights]) and
the Bangalore Principles of Judicial Conduct.
Page 35:
10. In relation to the professional organization of advocates,

Indonesia also needs to reflect on international relations.
Lawyers as citizens have the same rights as any other to
associate and assemble. In this regard, it is worth paying
attention to Article 23 of the UN Convention: Basic Principles on
the Role of Lawyers, which states that:
"Lawyers like other citizens are entitled to freedom of

expression, believe, association and assembly...”
Also Chap. IV Art. 3.20 of the 1983 Montreal Declaration, as

follows:
"Lawyers shall enjoy freedom of belief, expressions, association

and assembly…”
Pages 42 to 43:
9. The freedom of justice seekers in choosing their advocate is

regulated in the provisions of Article 55 of the Criminal
Procedure Code, as follows:
"To get a legal adviser as stated in Article 54, a suspect or

defendant has the right to choose his own legal adviser."
Internationally, the right to freely choose an advocate (the right

to counsel or the freedom to appoint a lawyer of one’s own
choice) is regulated in Art. 14, para. (3)(b) of the International
Covenant on Civil and Political Rights, Art. 6 of the IBA General
25
Principles of Ethics for Lawyers, and Art. 1 of the UN
Convention: Basic Principles on The Role of Lawyers, as
follows:
Article 14 paragraph (3) letter b International Covenant on Civil

and Political Rights:
“3. In the determination of any criminal charge against him,

everyone shall be entitled to the following minimum guarantees,
in full equality: (b) To have adequate time and facilities for the
preparation of his defense and to communicate with counsel of
his own choosing…"
Article 6 IBA General Principles of Ethics for Lawyers:
“A lawyer shall do nothing to interfere with the freedom of a

client to be represented by the lawyer of his choice.”
Article 1 UN Convention: Basic Principles on The Role of

Lawyers:
“All persons are entitled to call upon the assistance of a lawyer

of their choice to protect and establish their rights and to defend
them in all stages of criminal proceedings.”
Pages 58-9:
The current Advocate Law must be changed and adjusted to the

aspirations and developments of the current era so that it
becomes an ideal law that is free from state interference, i.e.
interference from the Government of Indonesia, the Supreme
Court of the Republic of Indonesia and Parliament (DPR RI),
both in terms of restrictions regarding the form of professional
organizations of advocates, restrictions on time periods and
restrictions regarding the rights of lawyers to join the
professional organization of advocates. State interference, i.e.
that of the Indonesian government regarding these matters,
contradicts the concept of a professional organization of
advocates which should be independent and self-governing, as
is stipulated in Article 17 of the IBA Standards for the
Independence of the Legal Profession and Article 24 of the UN
Convention: Basic Principles on the Role of Lawyers, which
reads as follows:
Pasal 17 IBA Standards for the Independence of the Legal

Profession:
"There shall be established in each jurisdiction one or more

independent self-governing associations of lawyers recognized
in law…”
Article 24 UN Convention: Basic Principles on The Role of

Lawyers:
26
“Lawyers shall be entitled to form and join self-governing
professional association to represent their interests, promote
their continuing education and training and protect their
professional integrity. The executive body of the professional
associations shall be elected by its members and shall exercise
its functions without external interference.”
Meanwhile, the provisions regarding the role of advocates in

carrying out their duties and roles without interference or
restrictions arising either directly or indirectly from any party, are
found in para. 2 of the IBA Standards for the Independence of
the Legal Profession, as follows:
“An equitable system of administration of justice which

guarantees the independence of lawyers in the discharge of
their professional duties without any improper restrictions,
pressures or interference, direct or indirect is imperative for the
establishment and maintenance of the rule of law.”
In the absence of intervention by the state, e.g. the Indonesian

government, it is expected that advocates can carry out their
professional duties and also carry out their role to support and
promote legal reform, as is regulated in Article 18(g) of the IBA
Standards for the Independence of the Legal Profession, which
regulates that professional organizations of advocates have a
function to develop and supports legal reform and provide
commentary on laws and draft laws.
Page 64:
Recognition by the state, i.e. the Indonesian government, of the

advocate profession and allowing it to carry out its functions
freely without hindrance can be seen from Art. 16 of the Chapter
"Guarantees for the functioning of lawyers" of the UN
Convention: Basic Principles on the Role of Lawyers, which
reads as follows:
“Government shall ensure that lawyers (a) are able to perform all
of their professional functions without intimidation, hindrance,
harassment or improper interference; (b) are able to travel and
to consult with their clients freely both within their own country
and abroad; and (c) shall not suffer, or be threatened with,
prosecution or administrative, economic or other sanctions for
any action taken in accordance with recognized professional
duties, standards and ethics.”
Pages 127 to 128:
Indonesia is also a member state of the United Nations. The

advocate profession is a universal profession which is very
important, honorable (officium nobile), and closely related to the
enforcement of human rights, justice and law, for which the
United Nations ("PBB ") formulated a set of UN standards for the
advocate profession, as is outlined in the United Nations Basic
27
Principles on the Role of Lawyers ("UN Basic Principles") in
1990. Art. 23 of the UN Basic Principles states as follows:
"Lawyers like other-citizens are entitled to freedom of ...

association and assembly.”
And article 24 of the UN Basic Principles further describes what

is meant by freedom of association and assembly, as follows:
“Lawyers shall be entitled to form and join self-governing

professional associations to represent their interests, promote
their continuing education and training and protect their
professional integrity....”
From this, it can also be seen that the construction of legal

norms built from Article 28 paragraph (1) in conjunction with
Article 32 paragraph (4) in conjunction with Article 30 paragraph
(2) of the Advocate Law also contradicts, or in other words does
not meet the advocate professional standards set by the UN
through Article 23 and Article 24 of the UN Basic Principles. If
the purpose of establishing that the professional organization of
advocates must be the only one in order for the advocate
profession to be "free and independent" so as to "improve the
quality of the Advocate profession", Article 24 of the UN Basic
Principles proves the opposite. When referring to Article 24 of
the UN Basic Principles, it is precisely said that "to protect their
professional integrity" advocates must "be entitled to form and
join self-governing professional associations". So, if the
provisions of Article 24 of the UN Basic Principles are read a
contrario, this means that efforts to limit the rights of advocates
"to form and join self-governing professional associations" are
actually an effort that threatens the "professional integrity" of the
advocate profession.
Furthermore, article 24 of the UN Basic Principles also states:
“The executive body of the professional associations shall be

elected by its members and shall exercise its functions without
external interference.”
In connection with this provision, at the time of the establishment

of the advocate professional organization which is considered
the only one as meant in Article 28 paragraph (1) of the
Advocate Law, namely PERADI, it is not elected by its members,
but based on mutual agreement with the leaders of the eight
advocate organizations that existed at that time. So, this also
contradicts or in other words does not meet the standards of the
advocate profession set by the UN through Article 24 of the UN
Basic Principles.
Legislation Article 28 (1) of the Advocates Law states:
“The Advocate Organization is the only forum for the Advocate

profession that is free and independent which is established in
28
accordance with the provisions of this Law with the aim and aim
of improving the quality of the Advocate profession.”
Article 32(4) of the Advocates Law states:
“Within no later than 2 years after the enactment of this Law, an

Advocate Organization has been formed.”
Additional comments There was a similar case in the Constitutional Court, with case
number 71/PUU-VIII/2010. In this case, the applicants argued
that article 32(3) and (4) in conjunction with article 28 (1) of the
Advocates Law contradict the Indonesian Constitution and have
no legal force to the extent that they require advocates to form
one single professional organisation of advocates.
The Constitutional Court had competence to review the

applicants’ petition and the applicants had legal standing, but the
Constitutional Court dismissed the petition on the basis of the ne
bis in idem principle.
‘For the time being, the duties and powers of the Advocate
Organization as referred to in this Law are carried out jointly by
the Indonesian Advocates Association (IKADIN), the Indonesian
Advocates Association (AAI), the Indonesian Legal Advisors
Association (IPHI), the Indonesian Advocates and Lawyers
Association (HAPI), the United Indonesian Lawyers (SPI), the
Indonesian Legal Consultants Association (AKHI), the Capital
Market Legal Consultants Association (HKHPM) and the
Indonesian Sharia Lawyers Association (APSI)’.
Indonesia#4
Case details and analysis A lawyer was accused of fraud in the Supreme Court, after
having asked the wife of his client to transfer Rp 150 million-200
million but failing to provide the professional services he had
promised in return.
In his defence, the lawyer cited the UN Basic Principles,

however the Court did not consider that they applied in this
instance and nonetheless found the lawyer guilty of fraud.
Name of tribunal Supreme Court
District Court of Surabaya
High Court of Surabaya
Case number 2033 K/Pid/2012
29
*District Court and High Court decisions are not available
Date of judgment 22 May 2013
Is the claimant/applicant a The defendant is a lawyer.

acting as legal
Brief summary of facts In 2013, Yasin Basri, a lawyer representing Mr Hengky

Limaniyanto who was a suspect of fraud, was the defendant in a
Supreme Court case accusing him of fraud himself.
In the process of representing Mr Hengky, his wife – Mrs

Hengky – had asked Mr Basri to file a postponement of
detention petition, for which Mr Basri then asked Mrs Hengky to
transfer Rp 150 million-200 million.
Mrs Hengky transferred the money, but a postponement of

detention petition was never obtained. Mrs Hengky demanded
that Mr Basri return the money, but he refused.
The District Court of Surabaya and the High Court found Mr

Basri guilty of conducting fraud, but Mr Basri appealed and the
case was referred to the Supreme Court.
In his defence, Mr Basri cited the UN Basic Principles:

“governments shall ensure that lawyers (a) are able to perform
all of their professional functions without intimidation, hindrance,
harassment or improper interference”.
However, the judge ignored this and also found Mr Basri guilty
of fraud.

lawyers Allowing lawyers to practice their profession without any unjust
impediments or obstacles.
Protection of lawyers when performing their profession.
Does the case refer to the Yes, the defendant referred specifically to UN Basic Principle
UN Basic Principles by 16.
named Principles?
Is this judgment, or in any Under Indonesia's civil law system, the common law doctrine
case the relevant of precedent does not exist, and each case must be
paragraphs regarding determined on its own facts and merits, although
lawyers, binding in your consideration may be given to previously decided similar
jurisdiction? Is it an obiter cases and academic theories. Therefore, court decisions are
dictum or binding (and, if binding on the parties to that proceeding only.
30
binding on everyone or However, despite Indonesian law not adopting the concept of
just the parties involved)? precedence and there being no obligation for the courts in
Indonesia to follow earlier court decisions, in practice these may
well be taken into account by the courts in Indonesia in making
similar decisions.
Relevant paragraphs of Iii. Reasons for the objection of the applicant to the decision of
judgment the Surabaya Court of Appeal:
1. That the Judex Facti of the East Java Court of Appeal made a
mistake in implementing the law on the crime of embezzlement
(ex Article 372 of the Criminal Code)
- That the cassation petitioner objects to the consideration of

the judex facti of the Surabaya Court of Appeal which stated
that the defendant/cassation petitioner was found guilty of
committing the crime of embezzlement.
- That if we look at the provision of article 16 of Law No. 18 of

2003 concerning Advocates, it reads: “An advocate has a
profession that is carried out based on his expertise in law
and in carrying out a position based on the authority
regulated in the laws and regulations, therefore in carrying
out its profession an advocate is subject to prevailing laws
and regulations and is bound by a professional code of
ethics for advocates. In carrying out the profession of an
advocate, one also has immunity rights”.
- Based on an online legal search, there are at least three

international provisions that pertain to the immunity right of
advocates. First, the Basic Principles on the Role of
Lawyers state that the government is obliged to ensure that
advocates in carrying out their profession are free from all
forms of intimidation, intervention and interference,
including legal prosecution.
- Whereas the International Bar Association (IBA) Standards

for the Independence of the Legal Profession even more
broadly define that advocates are not only immune from
criminal and civil lawsuits, but also administrative,
economic, or other sanctions or intimidation in their work to
represent and advise client.
- That the declaration produced by the World Conference of

the Independence of Justice in Montreal, Canada in 1983
demands a fair system in the administration of justice that
can guarantee the independence of advocates.
- Whereas an advocate also has the right to immunity when

carrying out their profession, as is formulated in Article 16 of
Law No. 18 of 2003 concerning Advocates. As a lex
specialis, the existence and authority of an advocate is
regulated in Law No. 8 of 1981 concerning KUHAP, Law no.
18 of 2003 concerning Advocates and the Advocate
Professional Code of Ethics. The Advocate profession is
31
part of the law enforcement professions based on Article 5
of Law Number 18 of 2003 concerning Advocates, the
status of an advocate as a free, independent law enforcer is
guaranteed by laws and regulations, and in court equal to
prosecutors and judges (vide: Article 8(a) of the Advocate
Professional Code of Ethics). Thus, the actions of an
advocate in carrying out the duties and powers of an
advocate are protected by laws and regulations.
- Whereas one of the compilers of the Advocate Law,

Hamdan Zoelva, said that the right to immunity of advocates
referred to in Article 16 includes the behaviour of advocates
both inside and outside the court. This former member of
Commission II DPR RI added that advocates have the right
to immunity from legal prosecution, as long as it is still in the
context of running a profession and based on good faith.
[…] This means that if [the advocate’s duties] are really
carried out in good faith, even outside the court [the
advocate] must be protected, because otherwise he is not
free to carry out his duties, he explained.
Legislation UN Basic Principles on the Role of Lawyers, Principle 16.
Article 372 of the Criminal Code.
Article 16 of Law No. 18 of The Advocate Law 2003.
The World Conference of the Independence of Justice in

Montreal, 1983.
International Bar Association (IBA) Standards for the

Independence of the Legal Profession.
Additional comments Case Number 71/PUU-VIII/2010 (Constitutional Court) is about

the same issue.
The applicants argued that article 32(3) and (4) in conjunction

with article 28 (1) of the Advocates Law contradict the
Indonesian Constitution and have no legal force to the extent
that they require advocates to form one single professional
organisation of advocates.
The Constitutional Court had competence to review the

applicants’ petition and the applicants had legal standing, but
the Constitutional Court dismissed the petition on the basis of
the ne bis in idem principle.
‘For the time being, the duties and powers of the Advocate
Organization as referred to in this Law are carried out jointly by
the Indonesian Advocates Association (IKADIN), the Indonesian
Advocates Association (AAI), the Indonesian Legal Advisors
Association (IPHI), the Indonesian Advocates and Lawyers
Association (HAPI), the United Indonesian Lawyers (SPI), the
32
Indonesian Legal Consultants Association (AKHI), the Capital
Market Legal Consultants Association (HKHPM) and the
Indonesian Sharia Lawyers Association (APSI)’.
Annex 4D: Japan Case Reports
Japan#1
Name of tribunal Osaka High Court
Case number Case number (ne) 1170 of 2004 and case number (ne) 1917 of
2004
Link to source Shomu Geppo No. 52-10 at page 3069
Date of judgment 25 January 2005
Is the claimant/applicant a Yes

client?
Brief summary of facts Case regarding appeal for claim for damages
Brief summary of issues In interpreting that article 14, paragraph 3(b) of the International
relating to the role of Covenant on Civil and Political Rights (ICCPR) ensures the right
lawyers of defendants and their defence counsel to communicate, the
Osaka High Court ruling affirmed the District Court ruling which
referred to the UN Basic Principles, as outlined below.
Whereas UN resolutions such as the Principles on the Protection

of Detainees, the Basic Principles on the Role of Lawyers, and
the Minimum Rules for the Treatment of Detainees are practices
that arose after the application of the Convention and comprise
agreements between the parties on the interpretation of the
Convention (Vienna Convention on the Law of Treaties Article 31
(3) (a) and (b)); Principle 18 of the Protection of Detainees
establishes that communications between defence counsel and
the defendant must be kept in confidence in the detention
centres; Articles 8 and 22 of the Basic Principles regarding the
Role of Lawyers indicate that the right to communicate in
confidence is guaranteed as part of the right to defence; and
Article 93 of the Minimum Rules for the Treatment of Detainees
establishes that, at a minimum, communications between the
accused and the defence counsel must be kept confidential and
also sets forth standards; therefore, these are all guidelines for
interpreting Article 14, Paragraph 3, b and d of the Convention.
Any additional case This High Court ruling does not directly refer to the UN Basic
analysis Principles but affirms the outcome of a District Court Decision
which does make such explicit reference.
33
Does the case refer to the Yes, but as stated above, reference is made through a citation of
UN Basic Principles by a District Court ruling.
named Principles?
Is this judgment, or in any No, as there is no doctrine of binding precedents in Japan;

case the relevant however, precedents do, in practice, serve as influential
paragraphs regarding references in future cases
Additional comments In this case, a lawyer was denied the opportunity to meet with a
defendant. The lawyer had declined to disclose the contents of a
video recording which that lawyer had sought to use in the
meeting.
The lawyer initiated proceedings against the government, stating

that the denial of the opportunity to interview the defendant
violated the right of defendants and their defence counsel to
communicate in confidence.
In ruling against the government, the Osaka District Court (and

the Osaka High Court, which affirmed the decision of the Osaka
District Court) referred to the UN Basic Principles as one of the
supporting instruments in relation to article 14, paragraph 3(b) of
the International Covenant on Civil and Political Rights, on which
the court partially relied in determining that the refusal of the
meeting between lawyer and defendant had been unlawful.
The Osaka District Court also relied on the Japanese

Constitution and certain other domestic legislation in reaching its
decision.
Japan#2
Name of tribunal Fukuoka High Court
Case number Case number (ne) 29 of 2011
Link to source Hanrei Jiho No. 2148 at page 152
Date of judgment 1 July 2011

client?
34
Brief summary of facts Case regarding claim for compensation of damages due to
emotional suffering
Brief summary of issues For a prosecutor to interrogate a suspect about his

relating to the role of communications with defence counsel, to record the contents of
lawyers such communications in a written statement, and to request the
examination of such statement in court as evidence upon
indictment is an infringement of the individual right of defence
counsel to communicate in confidence with a suspect arrested
and detained on a charge of attempted murder.
Any additional case This ruling recognises that the right to communicate in
analysis confidence with a defendant (i.e. the client) is an independent
right held by defence counsel.
Does the case refer to the No

named Principles?

Japan#3
Name of tribunal Osaka High Court
Link to source Hanrei Jiho No. 2315 at page 61
Date of judgment 22 April 2016
acting as legal
Brief summary of facts Case regarding claim for damages
Brief summary of issues The acts of a prosecutor of obtaining and executing a search and
relating to the role of seizure warrant, as well as refusing to return seized articles in a
lawyers case where the defendant was charged with robbery, theft, and
35
violations of the Cannabis Control Act and the Stimulants Control
Act.
The prosecutor had obtained the warrant by stating that the

defendant was likely to collude through third parties with
accomplices and other individuals scheduled to provide
testimony in his case.
The prosecutor conducted such search and seizure in the

defendant's detention cell, in the mail room, and retained articles
warehouse at the Osaka Detention Center on the day following
the conclusion of an inter-trial arrangement proceeding.
The seizure of documents that were provided by defence

counsel was an unlawful infringement of the defendant's right to
defence and of the rights of defence counsel.
Any additional case The plaintiff in this case also stated that the act of the Court in
analysis issuing a search and seizure warrant was unlawful.
However, the District Court decision and this High Court Decision
both deemed such issuance as having been lawful and only
deemed as unlawful the acts of the prosecution.

named Principles?

Japan#4
Name of tribunal Supreme Court
(Indicate level of court,

federal or provincial, and
type of jurisdiction –
administrative, criminal
etc.)
Case number Case number (ju) 1311 of 2012
36
Link to source Hairei Jiho No. 2211 at page 3
Date of judgment 10 December 2013

acting as legal
Brief summary of facts Case regarding claim for compensation of damages
Brief summary of issues In the event that an inmate sentenced to death, or defence
relating to the role of counsel appointed for retrial, requests penal institution staff for
lawyers the opportunity to have a meeting regarding preparations for the
retrial request without the attendance of such staff, should
generally be granted.
Measures taken by the warden refusing such request are, unless

special circumstances apply such as the meeting being likely to
disrupt discipline and order in the penal institution, a breach or an
abuse of discretionary powers resulting in not only an invasion of
such inmate's rights but also of the individual rights of defence
counsel.
Any additional case This case is unique in that the case for which defence counsel
analysis had been appointed is a case for a retrial of an already
concluded criminal case.
It confirms that some of the rights afforded to defence counsel

endures not only during the criminal trial itself, but also during
any preparations for a retrial.

named Principles?

Legislation Article 121 Act on Penal Detention Facilities and the Treatment of
Inmates and Detainees
Wardens of penal institutions are to have a designated staff

member attend visits to an inmate sentenced to death or make
an audio or video recording of them; provided, however, that this
does not apply when there are circumstances in which having no
37
attendance or audio or video recording is appropriate in order to
protect the interests of the inmate sentenced to death, such as
arrangements for a lawsuit.
Japan#5
Name of tribunal Fukuoka High Court
Link to source Hanrei Taimuzu No. 874, at page 147
Date of judgment 21 February 1994
Is the claimant/applicant a The plaintiff is a lawyer.

client?
Brief summary of facts The plaintiff was a defence counsel for a suspect in custody.
The plaintiff visited the suspect in custody for interview six times
during the period between 27 July and 8 August 1985.
The investigation official refused the plaintiff to interview the

suspect because the plaintiff did not have “the prosecutor’s
designation in writing of time and place of interview”.
The court found that, on two of the six occasions, there was no
reason to restrict interviews and ordered the defendant
(government) to pay to the plaintiff “consolation money.”
Brief summary of issues Article 39, Paragraph 3 of the Code of Criminal Procedure allows
relating to the role of investigating officers to designate the date, time and place of
lawyers interviews with defence counsel.
There was a practice of requiring defence counsel to request a

written designation by the prosecutor of the time and place of
interview. In this case, the plaintiff challenged the foregoing
provision of the Code on the ground that it is unconstitutional.
The plaintiff referred to the UN Basic Principles in his arguments.
According to the judgment, the UN Basic Principles are not

legally binding and should be interpreted to allow some
limitations on interviews between defence counsel and suspects
in custody.
The relevant provision of the Code of Criminal Procedure was

considered to be constitutional.
38
Does the case refer to the The plaintiff referred in his arguments to the UN Basic Principles.
UN Basic Principles by The judgement does not explicitly refer to the UN Basic
name? If so, what are the Principles but refers to them as “UN resolutions”.
named Principles?
Is this judgment, or in any This is one of numerous cases in which it is a matter of factual
case the relevant determination as to whether the investigation officers had
paragraphs regarding sufficient grounds to restrict interviews between defence counsel
lawyers, binding in your and a suspect in custody or not.
Legislation Article 39 of the Code of Criminal Procedure:
1. The accused or the suspect in custody may, without any

official being present, have an interview with, or send to or
receive documents or articles from defence counsel or
prospective defence counsel upon the request of a person
entitled to appoint defence counsel;
[…]
3. A public prosecutor, public prosecutor's assistant officer or

judicial police official ("judicial police official" means both a
judicial police officer and a judicial constable; the same
applies hereinafter) may, when it is necessary for
investigation, designate the date, place and time of the
interview or sending or receiving of documents or articles
prescribed in paragraph (1) only prior to the institution of
prosecution; provided however, that such designation must
not unduly restrict the rights of the suspect to prepare for
defence.
Additional comments The practice of requiring a written designation from a prosecutor

for an interview between defence counsel and a suspect are no
longer prevalent.
However, disputes between investigation officers and defence

counsels as to limitations on interviews still occur.
Japan#6
Name of tribunal Tokyo High Court
Case number Case number (gyo ko) 80 of 2013
Link to source Shougetsu Vol. 60, Number 3. at page 613
39
Date of judgment 12 September 2013
Is the claimant/applicant a The plaintiff is a business enterprise.

client?
Brief summary of facts The Fair Trade Commission of Japan (JFTC) raided the
plaintiff’s premises and seized materials, including
communications between the plaintiff and its counsel.
As a result of the investigations, the JFTC issued a cease-and-

desist order to the plaintiff. In the meantime, the JFTC decided
to accept a petition of the plaintiff’s competitor to examine the
case file.
The plaintiff filed a claim to revoke the JFTC’s decision in part in

respect of the communications between the plaintiff and its
counsel, which should be protected by lawyer-client
confidentiality.
The court rejected the claim on the ground that there is no legal
basis to treat communications as confidential only because they
are made between attorneys and clients.
Brief summary of issues The authorities more often raid premises and seize legal
relating to the role of memoranda prepared by legal counsel. This is the first case
lawyers where the issue of lawyer-client confidentiality was adjudicated
by the courts.
The courts affirmed the authorities’ position that there is no

lawyer-client confidentiality in Japan.

named Principles?

Additional comments The JFTC amended its rules and introduced a procedure to treat
certain communications between attorneys and clients as
confidential.
40
The new procedure appears similar to legal professional
privilege but is not consistent with Principle 22.
The new procedure would treat as confidential communications

between lawyers and clients in connection with investigations of
certain provisions of the Anti-Monopoly Law of Japan, subject to
satisfying certain criteria.
The Japan Federation of Bar Associations (JFBA) published an

opinion on the amended rules and the new procedure,
welcoming this step but noting that, in the JFBA’s opinion, the
scope of lawyer-client confidentiality should be expanded further
in order to align with international standards and facilitate legal
consultation with confidence and enhance the due process of
law.
A summary of the opinion and the full text can be found at:
Error! Bookmark not defined.
https://www.nichibenren.or.jp/en/document/opinionpapers/20200
507.html
Annex 4E: Malaysia Case Reports
Malaysia#1
Case details and analysis This case involved a few lawyers who acted for a client who had
been summoned by the Malaysia Anti-Corruption Commission
(MACC).
The lawyers were not allowed to be present when their client was
giving a statement to law enforcement officers because according
to MACC, the lawyers had to give statements as well before they
could represent their client.
Case name Latheefa Beebi Koya & Anor v Suruhanjaya Pencegahan Rasuah
Malaysia & Ors [2014] 7 MLJ 864
Name of tribunal High Court of Malaya (Kuala Lumpur)
Case number R1-25-94-04/2012
Date of judgment 30 January 2013
Is the claimant/applicant a The applicants are lawyers.

client?
Brief summary of facts The applicants were lawyers who acted for a client who had been
summoned by MACC to give a statement to assist them in
investigations into an alleged offence by a third party.
41
The applicants insisted they be allowed to be present when the
statement from their client was being recorded.
The applicants were allowed to be present but they were

subsequently required to provide statements to the MACC.
The applicants refused to give statements and the MACC issued

them with notices under the Malaysian Anti-Corruption Act 2009,
requiring them to give statements. If they failed to attend, it would
be an offence under the Act and they might be fined and/or
imprisoned.
Brief summary of issues One of the issues in this case is whether there had been a breach
relating to the role of of the applicants’ client’s right to legal representation or access to
lawyers counsel as the applicants were not allowed to be present when
the statement from their client was being recorded, unless the
applicants also provided a statement.
The High Court held that, having adopted the UN Basic Principles,
it is only right that Malaysia gives due respect and adheres to the
Principles.
Lawyers must be protected from any form of intimidation and

interference in the performance of their obligation to advise and
act for clients.
In addition, the fundamental principle of lawyer-client

confidentiality which lawyers are bound by must be preserved.
The issuance of a notice by the MACC is clearly an act of
intimidation and abuse of power on the part of the respondents.
Any additional case This case is related to Principle 16, 17 and 22 of the UN Basic
analysis Principles on the Role of Lawyers.
Does the case refer to the Yes, Principles 16, 17 and 22.
named Principles?
Is this judgment, or in any It is not binding because it was appealed to the Federal Court
case the relevant which reversed the decision of the High Court and the Court of
paragraphs regarding Appeal.
jurisdiction? Is it an obiter The High Court decision was affirmed in the Court of Appeal but
dictum or binding (and, if was reversed in the Federal Court.
binding on everyone or just The Federal Court held that an allegation that the notice was
the parties involved)? issued as an act of intimidation or was issued mala fide was
based on the incorrect assertion that the complainant had a
constitutional right to be represented by counsel during the
recording of his statement could not form the basis for quashing
the notice.
42
The appellant in the Federal Court appealed on one issue:
whether the notice, being a procedural component in a criminal
investigative process, was amenable to judicial review.
Relevant paragraphs of Paragraphs 24 to 26 of the judgment of the Court of first instance:

judgment
“Talking about the role of lawyers, it is pertinent to note that
amongst instruments unanimously adopted at the Eight United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders held at Havana from 27 August to 7 September 1990
was the United Nation Basic Principles on the Role of Lawyers.
Malaysia was represented at the said Congress. Although the
Basic Principles are not legally binding they should be held in high
regard and be given due respect; and as one of its preamble
states, be taken into account by government. Of relevance to the
instance are the following articles of the said Basic Principles:
16 Government shall ensure that lawyers (a) are able to

perform all of their professional functions without
intimidation, hindrance, harassment or improper
interference; (b) are able to travel and to consult with their
clients freely both within their own country and abroad;
and (c) shall not suffer, or be threatened with, prosecution
or administrative, economic or other sanctions for any
action taken in accordance with recognized professional
duties, standards and ethics.
17 Where the security of lawyers is threatened as a result

of discharging their functions, they shall be adequately
safeguarded by the authorities.
22 Governments shall recognize and respect that all

communications and consultations between lawyers and
their clients within their professional relationship are
confidential.
After adopting the Basic Principles it is only right that Malaysia

gives due respect and adheres to it. Hence, I am of the view that
lawyers must be protected from any form of intimidation and
interference in the performance of their obligation to advise and
act for clients. In addition, the fundamental principle of solicitor-
client confidentiality which lawyers are bound by must be
preserved.”
Legislation Article 5 of the Federal Constitution
Name of legislation: Federal Constitution
Date the relevant part of the legislation came into force: 31 August
1957
Relevant section: Article 5
43
“5. (1) No person shall be deprived of his life or personal liberty
save in accordance with law.
(2) Where a complaint is made to a High Court or any judge

thereof that a person is being unlawfully detained, the court shall
inquire into the complaint and, unless satisfied that the detention
is lawful, shall order him to be produced before the court and
release him.
(3) 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.
(4) Where a person is arrested and not released he shall without

unreasonable delay, and in any case within twenty-four hours
(excluding the time of any necessary journey) be produced before
a magistrate and shall not be further detained in custody without
the magistrate’s authority:
Provided that this Clause shall not apply to the arrest or detention
of any person under the existing law relating to restricted
residence, and all the provisions of this Clause shall be deemed to
have been an integral part of this Article as from Merdeka Day:
Provided further that in its application to a person, other than a

citizen, who is arrested or detained under the law relating to
immigration, this Clause shall be read as if there were substituted
for the words “without unreasonable delay, and in any case within
twenty-four hours (excluding the time of any necessary journey)”
the words “within fourteen days”: And provided further that in the
case of an arrest for an offence which is triable by a Syariah court,
references in this Clause to a magistrate shall be construed as
including references to a judge of a Syariah court.
(5) Clauses (3) and (4) do not apply to an enemy alien.”
Malaysia#2
Case details and analysis The director general of the Inland Revenue was sued because it
had carried out raids on the law firms of member of the Malaysian
Bar with a view to audit the firms and had demanded lawyers’
records, documents and books relating to their clients.
Case name Bar Malaysia v Ketua Pengarah Hasil Dalam Negeri [2018] 4 CLJ
635 (High Court)
Ketua Pengarah Hasil Dalam Negeri v Bar Malaysia [2021] 1 LNS

1714
Name of tribunal High Court of Malaya (Kuala Lumpur)
44
Court of Appeal (Putrajaya)
Case number High Court Originating Suit No. WA-24-12-03-2017
Court of Appeal Civil Appeal No.: W-01(A)-304-05/2018]
Date of judgment 2 April 2018 (High Court)
27 October 2021 (Court of Appeal)
Is the claimant/applicant a No. The plaintiff is the statutory body established under the Legal
lawyer him/herself or acting Profession Act 1976 to represent members of the legal profession
as legal representative of a in Malaysia.
client?
Brief summary of facts The defendant purportedly acted under the Incomes Tax Act 1967
to carry out raids on the law firms of members of the plaintiff with a
view to audit the firms and demand lawyers’ records, documents
and books relating to their clients.
The plaintiff then applied to the High Court for declarations that
the defendant’s act was abusive, unlawful and illegal under the
Incomes Tax Act and that the defendant had breached section 126
of Evidence Act 1950 and the Legal Profession Act 1976.
The plaintiff argued that the defendant had breached lawyer-client

privilege.
Brief summary of issues One of the issues in this case is whether the defendant had
relating to the role of breached lawyer-client confidentiality.
lawyers
The High Court held that section 142(5) of the Income Tax Act
1967 does not override section 126 of the Evidence Act 1950
which provides for solicitor-client privilege. Section 126 of the
Evidence Act 1950 is not caught under section 142(5) of the
Incomes Tax Act 1967.
However, section 126 does not protect the privilege to disclose or

produce any document, thing or information to communication
made in furtherance of any illegal purpose and for showing that
any crime of fraud has been committed by the advocate.
The court held that the defendant had failed to appreciate that the
ancient rules of privilege were framed to protect clients’
confidentiality.
The High Court further held that because section 126 of the
Evidence Act 1950 is a specific provision, it engages every
privileged communication including client communications.
The Court of Appeal affirmed the decision of the High Court. The
Court of Appeal observed that the privilege under section 126 of
45
the EA is an absolute one, and that the common law principle
"once privileged, always privileged" applies.
Any additional case This case is related to Principle 22 of the UN Basic Principles on
analysis the Role of Lawyers.

named Principles?
Is this judgment, or in any The decision of the Court of Appeal is binding on courts lower
case the relevant than the Court of Appeal. It is binding on all.
Relevant paragraphs of Paragraph 10, 11, 14, 15, 17, 39 and 40 of the High Court
judgment Judgment:
[14] My reading … is that only para. (b) of s. 142(5) of the ITA

1967 excludes or overrides privilege conferred in other written law.
The Act does not affect the operation of Chapter IX of Part III of
the Evidence Act 1950 (Act 56); or be construed as requiring or
permitting any person to produce or give to a court, the special
commissioners, the director general or any other person any
document, thing or information on which by that chapter or those
provisions he would not be required or permitted to produce or
give to a court.
[15] Paragraph (b) of s. 142(5) which was inserted vide the

amendment made in Income Tax (Amendment) Act 1974
commences with the words “Notwithstanding the provisions of any
other written law”. Therefore, my view is as far as other written law
which prohibits the disclosure or production of any document,
thing or information to a court, the Special Commissioners, the
Director General, such protection or privilege does not apply.
Paragraph (b) overrides that Chapter or those provisions in that
written law. Paragraph (b) saves Chapter IX of Part III of the
Evidence Act 1950 from the operation of the ITA 1967. In other
words, s. 126 of the Evidence Act 1950 (“EA”) which lies within
Chapter IX, Part III of the EA is saved and not caught under s.
142(5) of the ITA 1967. Section 126 of the EA shall prevail over s.
142(5) of the ITA 1967 but of course the proviso in s. 126 does not
protect privilege to disclose or produce any document, thing or
information to communication made in furtherance of any illegal
purpose and for showing that any crime of fraud has been
committed by the advocate.
[17] I am inclined to agree with the plaintiff’s submission that the

defendant has clearly failed to appreciate that the ancient rules of
46
privilege were framed to protect clients’ confidentiality and thus it
should not be treated in such a cavalier fashion as the defendant
had submitted before this court. The defendant has clearly
confused themselves as they have failed to understand privilege
and have also failed to address it.
[39] As submitted by the plaintiff, s. 126 of the EA embodies every

privileged communication, including the client communications.
The terminology of “in the course and for the purpose of (an
advocate’s) employment” is repeated numerous times throughout
s. 126 of the EA. However, s. 142(5)(b) of the ITA merely makes
reference to the term “in connection with any client”. The
terminology of “in connection with” is far from specific and is
extremely general as to its meaning as well as its applicability.
[40] As such, the EA is undeniably more precise, unambiguous

and specific. With those circumstances in mind, it is my
considered opinion that s. 126 of the EA must take precedence
over s. 142(5)(b) of the ITA to the extent of any inconsistency in
respect of matters relating to privilege.”
Paragraph 50, 65 to 68 of the Court of Appeal Judgment:
“[50] It should be borne in mind that the privilege under section

126 of the EA is an absolute one. Once privilege attaches, it
continues no matter in whose hands the privileged data might end
up in. The common law principle "once privileged, always
privileged" applies. There is only one instance where privilege,
when it exists, may cease and that is if the person who enjoys that
privilege, the advocate and solicitor's client, expressly consents to
its disclosure.
[65] The foregoing observations, manifests the importance of the

privilege enshrined in section 126 of the EA, as among other
things, an"... important auxiliary principle which serves to buttress
the cardinal principles of unimpeded access to the court and to
legal advice." They also testify as to why, "solicitor-client privilege
must remain as close to absolute as possible. There must be a
stringent norm to ensure protection and legislative provisions must
interfere with the privilege no more than absolutely necessary"
(emphasis added).
[66] Thus, before this important principle preserved by the

legislature in the form presented in section 126 of the EA may be
abrogated or undermined, the intention to do so must be manifest
by the use of clear and unambiguous language. Anything less will
not do.
[67] It is equally significant that, in the circumstances of this case,

a contrary conclusion would have very far-reaching consequences.
The authority and power that may be effected by the appellant
47
would have a blunderbuss effect. Without any cause, just or
otherwise, the appellant may investigate numerous individuals
through their legal advisors, many of whom the appellant may not
even be aware of. Again, such wide-ranging power, should it be
allowed, may only be allowed upon the express intention of the
Legislature, in clear and unequivocal terms.
[68] In our view, we do not find that section 126 of the EA has been
overridden in its entirety by section 142(5)(b) of the ITA such that
an advocate and solicitor may not assert the privilege provided
under section 126 of the EA as against the appellant. We are of the
view that it cannot be concluded that such was the clear and
unequivocal intention of the Legislature.”
Legislation Section 126 of the Evidence Act 1950
Date the relevant part of the legislation came into force: 1

November 1971
“(1) No advocate shall at any time be permitted, unless with his

client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such
advocate by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted
in the course and for the purpose of his professional employment,
or to disclose any advice given by him to his client in the course
and for the purpose of such employment:
Provided that nothing in this section shall protect from

disclosure:
(a) Any such communication made in furtherance of any

illegal purpose;
(b) Any fact observed by any advocate in the course of his

employment as such showing that any crime of fraud has
been committed since the commencement of his
employment
(2) It is immaterial whether the attention of the advocate was or

was not directed to the fact by or on behalf of his client.”
Section 142(5) of the Income Tax Act 1967

October 1971
“(a) Save as provided in paragraph (b) nothing in this Act shall:
(i) affect the operation of Chapter IX of Part III of the

Evidence Act 1950 (Act 56); or
48
(ii) be construed as requiring or permitting any person to
produce or give to a court, the Special
Commissioners, the Director General or any other
person any document, thing or information on which
by that Chapter or those provisions he would not be
required or permitted to produce or give to a court.
(b) Notwithstanding the provisions of any other written law, where

any document, thing, matter, information, communications or
advice consists wholly or partly of, or relates wholly or partly to,
the receipts, payments, income, expenditure, or financial
transactions or dealings of any person (whether an advocate and
solicitor, his client, or any other person), it shall not be privileged
from disclosure to a court, the Special Commissioners, the
Director General or any authorised officer if it is contained in, or
comprises the whole or part of, any book, account, statement, or
other record prepared or kept by any practitioner or firm of
practitioners in connection with any client or clients of the
practitioner of firm of practitioners or any other person.”
Malaysia#3
Case details and analysis In this case, a lawyer included certain information that he received
from his client in his affidavit to defend himself in committal
proceedings. The issue was whether he could do so unrestricted
by lawyer-client confidentiality.
Case name Gideon Tan v Tey Por Yee & Another Appeal [2017] 1 MLJ 352
Name of tribunal Court of Appeal (Putrajaya)
Case number Civil Appeal No. W-02(IM)(NCC)-1322–08/2015 and W-

02(IM)(NCC)-1323–08/2015
Date of judgment 24 October 2016
Is the claimant/applicant a The appellant is a lawyer.

client?
Brief summary of facts The plaintiff in the court below obtained leave to initiate committal
proceedings against the appellant and the respondents on the
alleged contemptuous act of interfering with the evidence of a
potential witness.
The appellant was an advocate and solicitor representing the

respondents in court.
The appellant then filed an application to set aside the order

granting leave for committal together with his affidavit in support.
49
Subsequently, upon service of the documents to the respondents,
the respondents filed two separate applications to expunge certain
paragraphs and exhibits in the appellant’s affidavit.
On appeal, the appellant did not deny that the impugned exhibits
were given under solicitor-client privilege and that the respondents
had never waived their privilege.
Nevertheless, the appellant contended that legal professional

privilege was not applicable to these committal proceedings as it
would allow the respondents to raise privilege to cloak or cover up
the illegality, crime and/or fraud.
Brief summary of issues The issue in this case was whether the appellant could raise
relating to the role of solicitor-client privilege to defend himself in the committal
lawyers proceedings.
The court held that the right of the appellant to defend himself in
the committal proceedings did not create an exception to the rule
of solicitor-client privilege, so that certain documents could not be
divulged in these proceedings.

named Principles?
Is this judgment, or in any It is binding on courts lower than the Court of Appeal. It is binding
case the relevant on all.
Relevant paragraphs of Paragraphs 36 to 47 of the Judgment:

judgment
“[36] In our view, on the factual matrix of these appeals, the
exception for communication and/or information from a client
pertaining to a future crime does not apply here for the following
reasons:
(a) the communication and/or information has no nexus to

any criminal activity; and
(b) even if it did, all the impugned averments and exhibits

were in relation to past matters and this was not a case of
seeking advice on a future unlawful act.
50
[38] In his affidavit in support to set aside the grant of leave for
committal proceedings, the appellant testified that:
(a) Tjoe’s statutory declaration was never mentioned in the

plaintiff’s statement of claim. As such, the appellant never
knew he would be a potential witness;
(b) he only went to Jakarta on a fact-finding mission;
(c) Tjoe always held legal representation, and thus could not
have been ‘interfered with’; and
(d) the alleged contempt occurred in Jakarta and as such the

Malaysian courts do not have jurisdiction.
[40] We agree with the findings of the learned JC that the right of
the appellant to defend himself in the committal proceedings did
not create an exception to the rule of solicitor-client privilege.
[41] In Derby, Lord Taylor stated at p. 503:
[It] seems to conflict with the long established rule that a

document protected by privilege continues to be protected so long
as the privilege is not waived by the client: once privileged, always
privileged. It also goes against the view that the privilege is the
same whether the documents are sought for the purpose of civil or
criminal proceedings, and whether by the prosecution or defence,
and that the refusal of the client to waive his privilege, for
whatever reason, or for no reason, cannot be questioned or
investigated by the court.
[42] At the root of their lordships’ determination that the privilege is

absolute was the concern that any qualification to the privilege
would undermine the fundamental principle that a client must not
feel constrained in any way in his communications with his lawyer.
Lord Taylor stated:
… once any exception to the general rule is allowed, the client’s

confidence is necessarily lost. The solicitor, instead of being able
to tell his client that anything which the client might say would
never in any circumstances be revealed without his consent,
would have to qualify his assurance. He would have to tell the
client that his confidence might be broken if in some future case
the court were to hold that he no longer had ‘any recognisable
interest’ in asserting his privilege. One can see at once that the
purpose of the privilege would thereby be undermined.
[43] In Three Rivers District Council and others v Governor and

Company of the Bank of England, the House of Lords stated:
Certainly in this country, legal profession privilege, if it is

attracted by a particular communication between lawyers and
their clients or attaches to a particular document, cannot be
51
set aside on the grounds that some other higher public
interest requires that to be done.
[44] In a leading text, Confidentiality by RG Toulson and CM

Phipps (Sweet & Maxwell, 3rd Ed 2012), the learned authors
stated at para. 16–033:
Again, on the basis of R v Derby Magistrates Court ex parte

B, if the information given to a solicitor was originally
privileged, and if there has been no exception or implied
waiver privilege by the client, it is difficult to see how the
solicitor may use such information to defend himself even
against a criminal charge …
[45] We are of the view that this long recognised principle should
be maintained. The solicitor-client privilege permits a client to talk
freely to his or her lawyer secure in the knowledge that the words
and documents which fall within the scope of the privilege will not
be disclosed. This is a principle of fundamental importance to the
administration of justice.
[46] On the factual matrix of these appeals, there is no compelling

public interest that can justify setting aside solicitor-client privilege.
The right of the appellant to defend himself in the committal
proceedings did not create an exception to the rule of solicitor-
client privilege. In HT SRL v Wee Shuo Woon [2016] SGHC 15,
Hoo Sheau Peng JC stated:
60 The raison d’être of legal professional privilege is that full,

free, and frank communication between persons and their
legal advisors, without which the effective administration of
justice would not be possible, can only take place if such
communications can be carried out in confidence
(see Skandinaviska Enskilda Banken AB (Publ), Singapore
Branch v Asia Pacific Breweries (Singapore) Pte Ltd and
other appeals [2007] 2 SLR(R) 367 at [23]). There is a
tension between this and the competing public policy
consideration that all relevant information be placed before
the court in order that accurate adjudication can be carried
out. However, the balance between these two competing
imperatives has already been struck in favour of the
preservation of legal professional privilege …
[47] Before we conclude, we must say that the solicitor-client

privilege is a privilege which the law has been most zealous to
protect and most reluctant to water down by exceptions. We
strongly feel that it should remain within the parameters as
expounded in Derby.”
Legislation Section 126 of the Evidence Act 1950

November 1971
52

disclosure:

illegal purpose;

employment, demonstrating that any crime of fraud has
employment

Malaysia#4
Case details and analysis This case involved a lawyer who was arrested after his client
disappeared because he was not willing to disclose his client’s
whereabouts.
Case name Leonard Teoh Hooi Leong v Public Prosecutor [2010] 3 MLJ 373
Name of tribunal Court of Appeal (Putrajaya)
Case number Criminal Appeal No. J-05–08/2002
Date of judgment 10 October 2009
Is the claimant/applicant a The appellant is a lawyer.

client?
Brief summary of facts The appellant was a lawyer who acted for his client in a religious
conversion matter.
The client then disappeared from her parents’ home. After

extensive investigation by the police, the police arrested the
appellant and put him on remand pursuant to section 177 of the
Criminal Procedure Code.
The appellant applied to the High Court to revoke the remand

order but his appeal was rejected. The appellant then appealed to
53
the Court of Appeal, contending that he was protected by solicitor-
client privilege under section 126 of the Evidence Act 1950 and
that his detention was unlawful under section 117 of the Criminal
Procedure Code.
Brief summary of issues The issue in this case was whether the appellant’s detention was
relating to the role of lawful and whether he could invoke section 126 of the Evidence
lawyers Act 1950 when he was being investigated regarding a criminal
case.
The court held that the procedure under section 117 of the
Criminal Procedure Code had been complied with and the
appellant could not hide behind the “skirt of privilege” when he
was being investigated regarding a criminal case.

named Principles?
Is this judgment, or in any It is binding on courts lower than the Court of Appeal. It is binding
case the relevant on all.
Relevant paragraphs of Paragraph 20 of the judgment:

judgment
“[20] It is our judgment that the learned High Court judge was right
in not exercising his revisionary power, to reverse the decision of
the magistrate. It is clear in this case that the procedure under the
CPC had been complied with. Further, we are in agreement with
the learned trial judge that the appellant could not hide behind the
'skirt of privilege' when he was being investigated over a criminal
case.”
Legislation Section 117 of the Criminal Procedure Code
Date the relevant part of the legislation came into force: 4 April
1999
Section 126 of the Evidence Act 1950

November 1971
54

disclosure:

illegal purpose;

employment as such showing that any crime of fraud has
employment

Malaysia#5
Case details and analysis In this case, the appellant’s lawyer was not allowed to meet the
appellant after he was arrested by the police for abetment in
armed robbery.
The appellant then applied for a writ of habeas corpus but his
arguments were not accepted by the court.
Case name Ooi Ah Phua v Officer-in-Charge Criminal Investigation,

Kedah/Perlis [1975] 2 MLJ 198
Name of tribunal Federal Court
Case number Civil Appeal No. 14/1975
Date of judgment 2 June 1975
Is the claimant/applicant a No, the appellant was not a lawyer.

client?
Brief summary of facts An individual was arrested by the police for abetment in armed
robbery. The appellant in this case was the father of the subject.
55
The appellant applied for a writ of habeas corpus after he was not
permitted to visit his son in custody.
Brief summary of issues There were two issues in this case relating to the detained
relating to the role of individual’s rights.
lawyers
The first issue is whether the subject had a right to consult and be
defended by counsel of his choice immediately after his arrest.
The second issue is whether such as right is an unqualified right

and whether the denial of such right rendered the detention
unlawful.
The court held that the right of an arrested person to consult his
lawyer begins from the moment of arrest, but that right cannot be
exercised immediately after arrest.
A balance has to be struck between the right of the arrested

person to consult his lawyer on the one hand and on the other the
duty of the police to protect the public from wrongdoers by
apprehending them and collecting whatever evidence exists
against them. The right should not be exercised to the detriment of
any investigation by the police.
Any additional case This case is related to Principles 1, 5, 7 and 8 of the UN Basic

named Principles?
Is this judgment, or in any Yes. It is binding on all courts lower than the Federal Court. The
case the relevant Federal Court is the highest court in Malaysia.
Relevant paragraphs of Page 200 to 201 of the Judgment:

judgment
“With respect I agree that the right of an arrested person to
consult his lawyer begins from the moment of arrest, but I am of
the opinion that that right cannot be exercised immediately after
arrest. A balance has to be struck between the right of the
arrested person to consult his lawyer on the one hand and on the
other the duty of the police to protect the public from wrongdoers
by apprehending them and collecting whatever evidence exists
against them. The interest of justice is as important as the interest
of arrested persons and it is well-known that criminal dements are
56
deterred most of all by the certainty of detection, arrest and
punishment.
With respect I agree with the view of Bhide J. in Sundar Singh v

Emperor AIR 1930 Lahore 945 who said at page 947:
"The right of a prisoner to have access to legal advice must of

course be subject to such legitimate restrictions as may be
necessary in the interests of justice in order to prevent any
undue interference with the course of investigation. For
instance a legal adviser cannot claim to have interviews with a
prisoner at any time he chooses. Similarly, although ordinarily
a member of the Bar may be presumed to understand his
responsibility in the matter, if there are any good reasons to
believe that a particular pleader has abused or is likely to
abuse the privilege, that pleader may be refused an interview.
But, in such cases the police must of course be prepared to
support their action on substantial grounds."
With respect I agree with the view of the learned judge from
whose decision this appeal has been lodged, when he said at
page 94:
"To begin with it should be noted that article 5(3) of our

Constitution does not introduce an entirely new right but
merely re-states a right which had existed in some form before
the Constitution. Section 255 of the Criminal Procedure Core
(F.M.S. Cap. 6) and section 250 of the Criminal Procedure
Code (S.S. Cap. 21) already granted to every person accused
before any criminal court the right to be defended by an
advocate. Article 5(3) of our Constitution now guarantees this
right and at the same time has converted it into a constitutional
provision. The equivalent provision is found in article 22(1) of
the Indian Constitution which, although stated in negative
terms, has the same effect as our article 5(3). The right to
consult counsel under article 22(1) of the Indian Constitution
was first mooted in the case of Moti Bai v State AIR 1954
Rajasthan 241, where Modi J. in his judgment observed that
the right of an accused person to consult counsel began since
his arrest 'though subject to reasonable restrictions as to time
and convenience.' These 'restrictions' were also recognised by
Wee Chong Jin C.J. in Lee Mau Seng v Minister for Home
Affairs, Singapore & Anor, where the learned Chief Justice
expressed obiter dicta that an arrested person is [under article
5(3)] 'beyond a shadow of doubt entitled to this constitutional
right granted to him by the authority who has custody of him
after his arrest and this right must be granted to him within a
reasonable time after his arrest'. That the right to counsel
should be allowed within a reasonable time after the arrest
was also recognised in the 'guidelines' of Syed Agil Barakbah
J. in Ramli bin Salleh v Inspector Yahaya bin Hashim To get
the correct perspective of Article 5(3) of our Constitution it is
important that that clause should be divided into two limbs: i.e.
the right of a person arrested to be informed of the ground of
his arrest, and the right of an arrested person to consult and to
be represented by counsel of his choice. With regard to the
57
first limb, the arrested person has a right to be informed 'as
soon as may be' of the grounds of his arrest, which means that
he should be informed as soon as possible or in the shortest
practicable time of the grounds of his arrest. It is seen that
although the second limb gives the person arrested the right to
consult and to be represented by counsel of his choice that
clause does not direct the time when this right begins. This is
significant because the phrase 'as soon as may be' denotes
that the right operates forthwith and that the authorities making
the arrest shall as soon as possible inform the person the
grounds of his arrest. Having regard to the purpose of Article
5(3) of our Constitution, which is in my view to crystalise into a
constitutional provision an already existing right under the
F.M.S. Criminal Procedure Code and section 250 of the S.S.
Criminal Procedure Code (i.e. a right to be defended by an
advocate), the true meaning of Article 5(3) becomes clear. In
this connection the judgment of Grover J. in Re Mahdu
Limaye AIR 1969 SC 1014 is in my opinion relevant. In the
course of his judgment, Grover J. said of article 22(1) of the
Indian Constitution:
'The two requirements of clause (1) of article 22 are meant to

afford the earliest opportunity to the arrested person to remove
any mistake, misapprehension or misunderstanding in the
minds of the arresting authority and, also to know exactly what
the accusation against him is so that he can exercise the
second right, namely of consulting a legal practitioner of his
choice and to be represented by him.'
Like article 22(1) of the Indian Constitution, our article 5(3)

embodies a rule which should be regarded as vital and
fundamental for safeguarding personal liberty under rule of
law. It is true that the right under the second limb of article 5(3)
does not operate only when an individual is charged in a
criminal court but certainly well before that so as to enable him
to prepare his defence. But it cannot certainly be said to
operate in all cases simultaneously with the right in the first
limb of the clause to be informed of the grounds of his arrest.
Such a construction would deprive that clause of its true
meaning and purpose. In other words, the right of the person
under the second limb of that clause should be reconciled with
the duty of the police to investigate an offence under so that a
proper investigation and consequently an expeditious trial can
be made possible. A speedy trial is certainly an unwritten right
of every person accused of an offence. The right of the person
under the second limb of that clause should not be exercised
to the detriment of an investigation. The authorities concerned
must however exercise their discretion in good faith to enable
the person arrested to exercise his right under that clause.
Since the end of justice is justice and the spirit of justice is
fairness, then each side should have an equal opportunity to
prepare its own case fully, freely and fairly before the court. To
say differently, to succeed the applicant in a case of this nature
must show bad faith on the part of the authorities in denying
the exercise of the right of the person arrested; that is he must
show that there is on the part of the authorities a clear and
58
deliberate attempt to obstruct or hinder the person arrested
from getting the benefit of counsel to prepare his defence.
Each case will therefore be considered on its own merits."
Article 5(3) was also considered in Public Prosecutor v Mah

Chuen Lim and Others and with respect I agree with Syed
Othman J. when he said at page 96:
"The Constitution does not prescribe the time within which the
arrested person shall be allowed to consult counsel. But
section 38 of the Interpretation and General Clauses
Ordinance 1948, which applies to the Constitution (see
Eleventh Schedule) reads:
When no time is prescribed or allowed within which anything

shall be done, such thing shall be done with all convenient
speed and as often as the prescribed occasion arises.
(A similar provision can be found in section 54(2) of the

Interpretation Act 1967, which applies to legislation set out in
section 2).
What is 'convenient speed' would depend on the

circumstances of each particular case. I do not think it is
desirable to lay down the speed convenient to all cases."
In view of the above, I am of the opinion that it was unreasonable

of Mr. Karpal Singh to expect to be allowed to interview Ooi on
Monday, December 30 1974, and that as in this case there had
been a daylight robbery committed in the heart of the state capital
involving the use of a pistol and the loss of $14,000 to $15,000 not
to mention the loss of one life, and that as many young men are
prepared to go to any length in the pursuit of instant wealth armed
robberies are therefore quite common, it was quite reasonable of
the police to give facilities to Mr. Karpal Singh to interview Ooi for
the first time only on January 5, 1975.”
Legislation Article 5(3) of the Federal Constitution
1957
“5. (3) 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.”
Malaysia#6
Case details and analysis The plaintiff in this case was not allowed to meet with his lawyer
when he was being held in custody on remand.
59
Case name Saul Hamid v Inspector Abdul Fatah bin Abdul Rahman [1999] 6
MLJ 800
Name of tribunal High Court of Malaya (Pulau Pinang)
Case number Civil Suit No. 22-106/1990
Date of judgment 24 August 1999
Is the claimant/applicant a No, the plaintiff is not a lawyer.

client?
Brief summary of facts The plaintiff was a technician and he was arrested, detained and
placed under remand pending investigations for nine days.
The plaintiff in this case sought to recover damages for wrongful

arrest, wrongful detention and malicious prosecution, because the
plaintiff was not allowed to meet with his counsel during the period
he was being held on remand.
Brief summary of issues One of the issues in this case was, whether, on the facts of this
relating to the role of case, there had been an infringement of the plaintiff's
lawyers constitutional right of access to counsel.
The court ruled that a person being held on remand is entitled to

legal representation and that the burden lies on the police to prove
that any such representation or access to counsel would interrupt
their investigation.
Section 255 of the Criminal Procedure Code provides that every

accused person may have an advocate of their own to defend
them.
The Federal Constitution does not prescribe the time within which
an arrested person shall be allowed to consult with their counsel.
On the facts of this case, the police were entitled to deny the
plaintiff access to his counsel pending further investigations.
Such a denial of access during the period when he was under

remand pending investigations does not amount to an
infringement of the right to access to counsel conferred by the
Constitution.
Any additional case This case is related to principles 1, 5, 7 and 8 of the UN Basic

named Principles?
60
Is this judgment, or in any It is binding on courts lower than the High Court. It is binding on
case the relevant all.
lawyers, binding in your This case was appealed but the appeal was dismissed at the
jurisdiction? Is it an obiter Court of Appeal.
binding, whether it is However, the issue of the plaintiff’s right to counsel was not raised
binding on everyone or just in the Court of Appeal and hence, on this point, this case is still
the parties involved)? binding.
Relevant paragraphs of Paragraphs 821D to 822C of the judgment:

judgment
“I would now like to consider the alleged infringement of the right
of access to counsel contrary to the second limb of Art. 5(3) of the
Federal Constitution.
First and foremost, it is pertinent to note that the Constitution does

not prescribe the time within which an arrested person shall be
allowed to consult counsel.
As to the decision of YA Edgar Joseph Jr in the Criminal Revision

No. 58–8–87 as reported in Saul Hamid v PP I have scrutinized it
closely and am of the view that the decision is not an authority in
relation to the right of access to counsel. The specific issue for
determination in that earlier criminal application, in the words of
the learned judge, was: 'Does an arrested person have the right to
be represented by a legal practitioner in remand proceedings
under the Criminal Procedure Code?'
On this issue, the learned judge held that an arrested person had
the right to be represented by counsel in remand proceedings
under section 117 of the Code before a judicial officer.
However, on the issue of the right to access to counsel conferred

by the second limb of article 5(3) Edgar Joseph Jr J (as he was
then) in his judgment states that:
As to the right to consult counsel, it would appear at first

glance that this is a right which is unqualified since it is
difficult to conceive of a right which one cannot exercise.
However, there is high authority to the contrary.
His Lordship in his judgement then referred to the Federal Court

decision in Ooi Ah Phua v Officer-in-Charge Criminal
Investigations, Kedah/Perlis, which is outlined above.
Thus, on the facts of this case, I hold that the police were entitled
to deny the plaintiff access to his counsel pending further
investigations, and that such a denial of access during the period
when he was being held on remand pending further investigations
does not amount to an infringement of his right to access to
counsel which has been conferred by the Constitution.
61
Legislation Section 117 of the Criminal Procedure Code
1999
(5) The magistrate in deciding the period of detention of the

accused shall allow representations to be made either by the
accused himself or through a counsel of his choice.
Article 5 of the Federal Constitution
1957

Additional comments This case highlighted that, although access to counsel is

recognised as a Constitutional right, there are restrictions on this
right which may be permitted to override it in specific
circumstances.
Malaysia#7
Case details and analysis The appellants were denied access to counsel when they were
detained under the Internal Security Act 1960.
Case name Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other
Appeals [2002] 4 CLJ 309
Name of tribunal Federal Court
Case number 05-8-2001(W), 05-9-2001(W), 05-10-2001(W), 05-11-2001(W) and

05-12-2001(W)
Date of judgment 6 September 2002
Is the claimant/applicant a No, the appellants were not lawyers.

client?
Brief summary of facts The five appellants were political activists aligned to the former
Malaysian deputy prime minister, Anwar Ibrahim. They were
arrested and detained by the police under the Internal Security Act
1960 (which was repealed in July 2012).
62
The appellants appealed to the Federal Court the decision of the
High Court to dismiss their applications for writs of habeas
corpus to secure their release from police detention.
Brief summary of issues One of the issues in this case, among others, was whether the
relating to the role of total denial of access to legal representation for the appellants
lawyers throughout the entire period of their detention under section 73
ISA was a breach of Article 5(3) of the Federal Constitution.
The court held that denying the appellants access to legal

representation for the entire 60 days of their detention was
unreasonable and a clear violation of the Constitution, which could
not be validated.
This denial of legal representation also supported the appellants'

assertions that the ISA was being used for a secondary purpose
and that there had been bad faith on the part of the police in
arresting and detaining them.
Moreover, the ISA does not contain any provision which

proscribes access to legal representation during the 60-day
detention period.
Any additional case This case is related to Principles 1, 5, 7 and 8 of the UN Basic

named Principles?
Is this judgment, or in any Yes, it is binding on all courts lower than the Federal Court. The
case the relevant Federal Court is the highest court in Malaysia.
Relevant paragraphs of Page 388 to 389 of the judgment:

judgment
“On the facts of these appeals before us, I consider that allowing
access only after the expiry of their detentions is unreasonable
conduct and a clear violation of article 5(3). It also supports the
appellants’ contention that such denial amounts to male fide on
the part of the police and that the ISA was used for a collateral
purpose. That collateral purpose is demonstrated by the fact that
the appellants are facing several charges of being members of an
unlawful assembly and that the ISA detentions were used to deny
the appellants the right to give instructions to their counsel to
defend them in the several charges that they face.
63
Responding to the respondent’s argument that under the ISA, the
police have absolute powers during the entire period of the 60-day
detention to refuse access under the guise that investigations
were on-going, that same submission was raised in Hashim bin
Saud’s case (supra).
In that case the High Court’s finding that an arrested person’s right
to counsel is postponed for as long as he is detained under
section 117 of the Criminal Procedure Code has been held by this
court to be erroneous.
Although that case dealt with a section 117 detention, I consider

that the principles of law are applicable to a section 73(1)
detention as well. Likewise I find no justification to support the
respondent’s argument.
Moreover the ISA makes no specific provision that there is no right

to counsel during the sixty day detention under section 73(1) and I
find no support for this argument in the respondent’s assertions
regarding the case law which I have alluded to earlier in this
judgment. Denying access during the earlier part of the detentions
would have been acceptable to facilitate the police in their
investigations but to stretch that denial throughout the duration of
the 60-day period makes a mockery of Art. 5(3).
The ISA makes no provision for denial of access to legal

representation which would be inconsistent with article 5(3). As
such the ISA is still subject to the rights entrenched in article 5(3)
and article 149 cannot be used to remove such a right.”
Legislation Section 73(1) Internal Security Act 1960
1972
Section 117 of the Criminal Procedure Code
1999
(5) The magistrate in deciding the period of detention of the

accused shall allow representations to be made either by the
accused himself or through a counsel of his choice.
Article 5 of the Federal Constitution
1957

64

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UN Basic Principles on the Role of Lawyers:

independence of the legal profession and

Annex 4: Asia and the Middle East

Case name Judgment No. 553/2016

Mr. Issam Mohammed Anabtawi (the appellant) v Mr. Azzam

Name of tribunal Jordanian Court of Cassation (Civil Division)

The Jordanian Court of Cassation is the final court of appeal in

In this case, the point of law raised was the admissibility of an

Case number 553/2016

Date of judgment 2016

As part of his defence, the defendant claimed that the promissory

The appellant had requested that the respondent’s attorneys

Both attorneys abstained from providing such testimony and the

Article 60(4) of the Jordanian Bar Association Law states that a

The appellant stated, in the grounds for appeal to the Court of

The Court of Appeal upheld the Court of First Instance’s

The appellant stated, in the grounds for appeal in cassation, that

The Court of Cassation (Civil Division) upheld the Court of

Relevant paragraphs of Court of Cassation (Civil Division) Judgment No. 553/2016,

“In response to the grounds for appeal in cassation:

In response to the first ground in which the appellant stated that

4. Testifying against his client regarding the case he was

Thus, in this present case, the refusal to hear the testimony of

“A lawyer shall be prohibited, under the penalty of liability, from

Article 37 of the Jordanian Evidence Law No. 30 for the year

“A lawyer, agent, doctor, or anyone who becomes aware of a fact

Additional comments It is worth mentioning that the abovementioned Article 37 of

Case name Judgement No. 3558/2019

Mr Bahaa al-Din Imran Muhammad Abu Amer (the appellant) v

Name of tribunal Jordanian Court of Cassation (Civil Division)

Case number 3558/2019

Date of judgment 2019

The appellant appealed the decision to the Irbid Court of Appeal,

The appellant stated, in the grounds for appeal in cassation to

The Court of Cassation (Criminal Division) held that the Irbid

Article 208 of the Criminal Procedures Law requires the

The Court of Cassation (Criminal Division) repealed the decision

Further, the Court of Cassation repealed the Court of Appeal’s

This judgment is a reinforcement of the right to access to counsel

Is this judgment, or in any The judgment is binding in the jurisdiction, as it is a direct

Relevant paragraphs of Court of Cassation (Criminal Division) judgment, paragraph11:

In the case presented: we find that the criminal court proceeded

Whereas the [Irbid] Criminal Court proceeded with the trial

Therefore, without the need to respond to the rest of the grounds

“In felonies punishable by execution, life imprisonment, perpetual

Annex 4B: India Case Reports

(B) Professional ethics stipulated in the Standards of Professional Conduct and

1 A. S. Mohammed Rafi v. State of Tamil Nadu Represented by Home, https://indiankanoon.org/doc/1355688/ @

(i) No person who is arrested shall be detained in custody without being

2 Ibid, para 32 @ pg. 5 of Indiankanoon and para 24 @ pg. 694 of SCC.

Free legal aid

(D) The Gauhati High Court held,

Access to Counsel: At what Stage

13 Hussainara Khatoon and ors. (V) v. Home Secretary, State of Bihar,

627@ para 5, page 631.

Failure to ensure Free Legal Aid in appellate proceedings

28 Christopher Raj v. K Vijayakumar, https://indiankanoon.org/doc/114414653/ para 11 @ page 3; (2019) 7 SCC 398.

(B) In non-preventive detention matters, the right conferred on lawyers by section 30

para 19, pg. 9.

743; https://indiankanoon.org/doc/1542937/ para 12, pgs 8-9.

“Permitting the detaining authority or the Government to appear before the

https://indiankanoon.org/doc/1145196/ pg. 22.