clr/1987/1987_1_329.pdf

(1987)Thus the question thai arises for determination in these proceedings is whether anadvocate who isawitness injudicial proceedings isincapacitated from acting inthe same case asanadvocate too Held

(1)It is the bounden duty of every State power to secure in its province the efficient application of the provisions of Part II of the 5 Constitution safeguarding fundamental nghts and liberties Fundamental nghts cannotbe curtailed except as provided inthe Constitution and subject tothe constraints envisaged therein

(2)However fundamental nghtstoocannotbe examined inisolation from the purpose they are designed to serve or be divorced from the legal LO .framework within which they can be exercised The efficacy of trie judicial process is a fundamental objective of the Constitution Where fundamental nghtsareinterwoven withsuchefficacy theymustbe interpretedandapplied in a way harmonizing concurrent constitutional objectives It follows that examinationof the nghtofArt 30 3(d)mustbemadewithintheframework of 1 5 the position of an advocate inthejudicial process

(3)The freedom safeguarded by Art 30 3(d)isabsolute asfar asthechoser is concerned,but itsimplementationdepends ontheacceptanceof the bnef on the part of the advocate and absence of any disqualification for him to appear inaparticularcase TheConstitutiondoesnotimposeanydutyonthe advocate chosen toacceptthebnef* 20

(4)Under our legal system an advocate occupies a unique position He is in every respect a functionary of the administrationof justice Heisunder concurrent duties to his clientand the Court He must stand aloof from the factual ments of his client's case The incompatibility of the position of an 2 5 advocate with that of a witness in the same case has been highlighted in Ahapittas ν Rock-Chtk Ltd

(1968)1C LR 1at pp 2 and 3 An advocate who is a witness cannotat thesame time be anofficer ofjustice Awitness is himself subject tothejudgmentoftheCourt Itwould beanantinomyifhehad the freedom toraise submission on thejudgment tobe passed onhim asan 3 0 officer of justice

(5)The client of the advocate in this case cannot curnpiain about the ineffectiveness of the exercise by her of thenght underArt 30 3(d)because his disqualification was the result of the exercise by her of another fundamental nght namely the nght to call witnesses, safeguarded by Art 3 0 3(ci 35 Orderaccordingly Cases referred to MavrovoumoUsν Nicolaides,14 C LR 272, Erotokntou and Othersν Soutsos

(1965)1CLR 162, •SeeInreI A anAdvocate(1987}1 CLR 319 330 1 C.L.R- In re Efthymlou Ousmiamsν Nicolaou

(1981)2J SC 314 Andreou ν Andreou then ValeneBums

(1969)1CLR 533 Ahapittas ν Roc-ChtkLtd

(1968)1CLR 1 Policeν Georghiades

(1983)2C L R 33. 5 Policeν EkdohkiEtena

(1982)2C LR 63 Repubhcv Demetnaaes and Another{l982) 2CLR 33, Pmgourasv ThePolice

(1987)2C LR 1 Application fordirections. Application fordirections astowhether respondent's advocate 10 whois a witness in an application for an order of certiorari is incapacitated from actingasher lawyer also A Erotocntou forrespondents Ε Nicolaidou, R Kreon andG Panayiotou C Themistocleous,forrespondentAEha 15 Chr Clendes,fortheapplicant Cur adv vult PIKIS J read the following judgment Before the commencement of theheanng Mr Clendes drew my attention towhat heperceived tobeananomaly thecontinuedappearance 20 of Mr Themistocleous as anadvocate, notwithstanding the fact that he swore twoaffidavits in support of the opposition ofhis client And invited the directionsoftheCourtinamatter affecting theregulation oftheproceedings before me Counselinformed us that noticetocross-examine Mr Themistocleous hadbeen served 25 ontherespondentindicatingtotheCourtthatitiscontemplatedto cross-examine counsel on the contents of his deposition Thereupon Isought toelicit the position of Mr Themistocleous, first the reactionsofhis client and secondly his personal response in a matter affecting hisstatus as a member of the Barand the 30 conflict, ifany,ansing from thedual capacity inwhich he appears, as awitness andasan advocate Ibrought tohisnotice some of the decisions of the Supreme Court beanng on the matter,readily available tomeasthey were reviewed in a recent decision of the Full Bench, notably 35 Disciplinary Appeal 1/87* Atthe request ofMr Themistocleous *Judgmentgivenon19thMay 1987 reportedin

(1987)1CLR 319 331 pild,j . In re Efthymiou

(1987)therewas ashortbreaktoenablehimtolookintothecaselawand reflect ontheduality of hisposition. Attheresumptionof thehearingMr. Themistocleousinformed theCourtthathisclientwishestoretainhisservicesinexerciseof therightvested in hertochoose andappointanadvocate of her 5 choice to represent her in theproceedings; his clientwishesno one else to represent her, as he told the Court.As for himself, althoughrecognizing thatitisanundesirable practice,hewillnot abandonthebrief oftherespondentconsideringtheparamountcy of his duty to his client andmoreimportantlythesupport of the 10 right of his clienttohave theadvocate of herchoicetorepresent herintheproceedings. Although thepracticeof anadvocate givingevidence inacase in which he appears in a representative capacity has been condemned*as unacceptable,unprobativetotheendsofjustice, 15 in none of the decided cases has this practice been held to be illegal or prohibited by law. The practice of an advocate giving evidence must be avoided, unless indispensable for the endsof justice**. Such need may arise if amatterarises as ex improviso •andthe testimony of an advocate is deemed necessary for the 20 elicitationof the truth. InnoneofthedecidedcaseswastheCourtconcernedtodecide thecompatibility of thefunctions ofanadvocatewiththedutiesof awitness,norwastheCourtrequiredtoanswerthequestioninthe contextof orby reference totherightconferred byArt. 30.3(d)of 25 the Constitution thatvestsineverylitigantinjudicial proceedings aright«tohave alawyerofhisownchoice ».Thequestionhas not been explored from that angle or in juxtaposition to the exercise of anotherfundamentalrightvested by Art. 30.3(c):«to adduce or cause to be adduced his evidence and to examine 30 witnesses accordingtolaw».UndertheEuropeanConventionfor the Protectionof HumanRights(ratified by Law39/62),the right conferred by Art. 30.3(d) is confined oniy to persons facing an accusationincriminalproceedings. * See. Interalia, Mavrovountotisv Ntcolaides 14 C LR 272,290, ManaΝ Erotocritouand 2 Othersν Nkos Cost!Soutsos

(1965)1CLR 162,Ousmianlsν Nlcotaou

(1981)2JSC 314 (adecisionof the DistrictCourt);PanayiottsAndreouν ValenePanayiobAndreou,then ValerieBums

(1969)1C LR 533 ** See MichaelAhapittasv. Roc-ChikLtd

(1968)1 CLR. 1 332 1 C.L.R. Inre Efthymlou PildsJ. Put in itscontextual perspective, the question we must resolve iswhether an advocate whoisawitnessinjudicial proceedingsis incapacitated from actinginthesame caseasa lawyertoo. Inthe process we must identify the nature of the right given by Art. 5 30.3(d)and examinetheimplicationsofitsexerciseonourjudicial system. Tobegin itisthe bounden duty of every State powerto secure in itsprovince the efficient application of the provisions of PartII of the Constitution safeguarding fundamental rights and liberties 10 (Art. 35). By the nature of the powers vested in the judicial authorities,thejudiciaryistrustedtosafeguard fundamental rights in the interest of the authority and respectability of the law. The principleunderlyingfundamentalrightsisthattheyinhereinevery individual and assuch no law,authorityorperson can deny them 15 to anyone. We had occasion to proclaim the sanctity of fundamental rights in Police v. Georghiades* and debate the prerequisites for their entrenchment. In another equally consequential decision, namely, Police v. Ekdotiki Eteria**we ruled that fundamental rights cannot be curtailed except as 20 provided in the Constitution and subject to the constraints envisaged therein. However, fundamental rights too cannot be examined in isolation from the purpose they are designed to serve or be divorced from the legal framework within which they can be 25 exercised. Thus it has been decided that whereas no law or authority can deprive the individual of a fundamental right, there is no constitutional prohibition to the coexistence of a fundamental rightwithadutytoexerciseit;providedthedutydoes not neutralize the right and is defined in harmony with the 30 objectives of the Constitution***. An individual right may be coupled with a duty. The efficacy of the judicial process is a fundamental objectiveoftheConstitution.Theunimpededflowof thestream ofjusticetisno lessimportant aconstitutional objective than the safeguard of fundamental rights. Where fundamental 35 rights areinterwoven withtheefficacy ofthejudicialprocess,they mustbe interpreted and applied inawayharmonizing concurrent constitutional objectives. Consequently examination of the *

(1983)2C.L.R33. "

(1982)2CLR. 63. "Republic v.Demetrlades and Another

(1983)2 CLR. 33;Ptngouras v.Police

(1987)2 C.L.R. 1. 333 PikisJ. In re Efthymlou

(1987)exercise of the right safeguarded by Art. 30.3(

1. d)cannot be undertaken but within the framework of the position of an advocate inthe judicial process. Thefreedom safeguarded byArt.30.3(d)isabsoluteasfarasthe choserisconcerned. Hecanchooseanyonetorepresent himwho 5 isregistered as an advocate.The implementation of his choice is necessarilysubject to(a)acceptanceonthepartoftheadvocateof thebrief,and (b)absence ofanydisqualification from appearingin the particular case. The Constitution does not impose a duty on the advocate chosen inexercise of therightgiven byArt.30.3 (
2. d)10 to represent the litigant in the case. Mr. Themistocleous has accepted the brief and expressed readiness to continue to represent hisclient inthe case.Thesole question remaining tobe answered iswhetherheisdisqualified from sodoingbecause heis a witness in the case. Aloofness of an advocate from the factual 15 meritsofthecaseofhisclientis,asmaybeinferred from the recent decision of the Full Bench in Disciplinary Appeal 1/87 (supra), a prerequisite for the performance of thedutiesof an advocate. An advocate is not the agent of his client in the commercial acceptation of the term. Heoccupies aunique position under our 20 legal system. He represents his client from the stand point of an officer of justice* and is in every respect a functionary of the administration ofjustice.Heisunderconcurrentdutiestohisclient and the Court. The discharge of these duties can only be ieconciled by an advocate distancing himself from the factual 25 meritsofthecaseofhisclient.TheAdvocatesRulesofEtiquette** are fashioned tothisrealityconfining the roleofalawyertothatof an adviser and advocate of the cause of his client in Court. The incompatibility of the position ofan advocate and awitnessinthe same judicial proceedings ishighlighted bythe following passage 30 from the decision in MichaelAhapittas v. Roc-Chik Ltd.***:«The Courthashad occasion todeprecate morethan oncethe practice of affidavits sworn by the parties' advocates in support of their clients'case.ThereasonswhysuchstepsinCodrtproceedingsare undesirable, unless indispensable, are so obvious that we find it 35 unnecessary tosaymore aboutit». Inmyjuugmemanadvocatewnoisawitnessinthecasecannot at tne same time be an officer of justice. He does not fulfil the 'Section15ofdieAdvocatesLaw, asamendedbys7ofLaw40/7* ••1966 OfficialGazette.Supplement3,17.11 1966,No 839 *··

(1968)1 CLR I.pages2and3 334 1 C.L.R. | n r e Efthymlou Pikis J . necessary attnbutes ofan officer ofjustice,an aid inthe ehcitation of the truth sufficiently distant from the facts to laise pertinent submissionsrelevanttotheobjective implicationsofthe evidence Awitness ishimself subject tothejudgment of the Court Itwould 5 be an antinomy ifhe had the freedom to raise submissions about thejudgment tobe passed on him,as an officer of justice His client, Androulla Elia, cannot complain either about the ineffectiveness oftheexerciseofthenght givenherbyArt 30 3(d) forthedisqualification ofheradvocate hascomeaboutinvirtueof 10 the exercise of another fundamental nght vested in her by the Constitution Thenghttocallwitnessesinthejudicial proceedings under review (Art 30 3(c)) I conclude that Mr Themistocleous is incapacitated from representing hisclientasan advocate inthe case 15 Orderaccordingly 335