Legal professional privilege must be upheld - Bar

The Malaysian Bar is gravely concerned by recent reports that the Malaysian Anti‑Corruption Commission has issued a notice summoning counsel representing a person under investigation.

This step undermines the integrity of the legal professional privilege.

The actions of the MACC are deeply troubling, as they signal an encroachment on rights central to the administration of justice.

As we have reminded the MACC in our previous press release dated 11 June titled The importance of protecting legal professional privilege and the right to representation, the right to counsel and legal professional privilege is the cornerstone of a fair and just legal system, ensuring that individuals can seek and receive confidential legal advice without fear of reprisal or breach of confidentiality.

The Malaysian Bar condemns in the strongest terms the recent actions of the MACC, which are in direct violation of Section 46 of the MACC Act 2009, which provides the following:

Advocates and solicitors may be required to disclose information

(2) Nothing in subsection (1) shall require an advocate and solicitor to comply with any order under that subsection to the extent that such compliance would disclose any privileged information or communication which came to his knowledge for the purpose of any pending proceedings.”

Section 46 of the MACC Act serves as a statutory firewall, safeguarding the confidentiality of legal advice that is fundamental to the proper administration of justice. It clearly sets out that enforcement officers must not compel the production of privileged material, inspect or read any documents once privilege is asserted, or proceed without first obtaining a determination from the High Court where the existence of privilege is disputed.

Privilege cannot be treated as overridden merely because an investigation is underway. Any attempt to circumvent these protections is inconsistent with the clear intent of Parliament and undermines the rule of law.

Legal professional privilege allows clients to speak openly with their lawyers and to disclose sensitive information in confidence, so that proper legal advice can be given.

If privilege is eroded, public confidence in the justice system and the legal profession would inevitably deteriorate.

The fact that a request comes from an enforcement authority does not dilute or change the nature of privilege. This principle was firmly affirmed by the Federal Court in Tan Chong Kean v Yeoh Tai Chuan & Anor.

In the light of the clear statutory protections under Section 46 of the MACC Act and the unequivocal stance of the courts, privileged documents and communications must remain beyond the reach of enforcement agencies, including the MACC, unless expressly authorised by the client or pursuant to a specific order from the High Court.

These concerns are not new. Over the past decade, the Malaysian Bar has consistently emphasised the importance of protecting privileged material in its official circulars.

Circulars no. 096/2018 and 250/2019 addressed declaratory relief sought in response to demands by the Inland Revenue Board for client account information.

Subsequent circulars, including Circulars no. 156/2021 and 073/2023, reflected the Bar’s position, held by the High Court and affirmed by the Court of Appeal and Federal Court, in Director General of Inland Revenue v Malaysian Bar.

Circular no. 145/2024 clarified that while routine office-account information may be provided to tax authorities, client-account records remain firmly protected by legal professional privilege.

The more recent circulars – Circulars no. 209/2024 and 253/2024 – provided guidance on what to do in the event of investigations conducted by enforcement agencies, the protection of privileged materials, and procedures during dawn raids or when enforcement officers attend law firms.

Taken together, these measures underscore our longstanding, consistent position: client communications and documents are sacrosanct and cannot be accessed without proper authorisation, and any violation of these principles threatens both the rule of law and the integrity of the legal profession.

The Malaysian Bar stands ready to support or initiate appropriate legal action to uphold the rule of law, safeguard the integrity of legal representation, and defend the fundamental right to confidential legal advice.

Legal professional privilege is not a convenience – it is essential to an effective justice system. The Malaysian Bar remains resolute in defending that principle. – Bar

Mohamad Ezri Abdul Wahab is the president of the Malaysian Bar.