A three-member bench, chaired by Vazeer Alam Mydin Meera, said the right to counsel is a fundamental right though not absolute, subject to a lawyer being able and willing to appear for his client.

Vazeer said the mere possibility of being called as witness in the future could not bar lawyer Charan Singh from acting now.

“As it stands, there is no conflict of interest or any embarrassment caused,” he said in allowing the appeal by V Vigneswaran Naidu, D Ganesan, P Velmurugan, D Enthiran and K Ganesen.

Vazeer, who sat with Supang Lian and Ahmad Nasfy Yasin, said based on the notes of proceedings and judgment of the High Court, the prosecution did not intend to call Charan as their witness.

He said the High Court ruling made in August was also premature.

Vazeer said another counsel could take over even if Charan is called as witness during the trial.

“By virtue of the evidence given, the court can then decide if Charan can continue to represent the men,” he said.

Judicial commissioner Su Tiang Joo removed Charan on the grounds that the lawyer had asked questions that suggested he could be a potential witness.

Su said Charan would be in conflict of interest and in breach of Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978. The rule states a lawyer cannot appear in a case where he/she is a witness.

The five, represented by Hisyam Teh Poh Teik and Salim Bashir are facing charges which carry a maximum 20-year jail term.

Charan, who was also present, said the trial will resume on April 25 with six prosecution witnesses taking the stand.

Deputy public prosecutor Mohd Dusuki Mokhtar prosecuted.