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Bar condemns unlawful demands for privileged documents and information from law firms

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The Malaysian Bar condemns in the strongest terms, the actions of the Malaysian Anti-Corruption Commission (MACC) and the Inland Revenue Board  in their unmeritorious and unlawful conduct of attempting to misuse their powers which disregards and overrides legal professional privilege accorded to the clients of advocates and solicitors.

The Malaysian Bar received reports from two law firms where attempts to raid their offices were made by the MACC, and in the case of one of the law firms, the Inland Revenue had also participated in the attempted raid on 6 October.

Having sighted the notices issued by the MACC and the Inland Revenue, the Malaysian Bar is outraged that both the MACC and the Inland Revenue had separately made (amongst others) broad, sweeping, and generic demands to access, search and seize privileged documents and information relating to the clients of the relevant law firms.

The demands were purportedly made by the MACC in reliance upon Section 31(1) of the Malaysian Anti-Corruption Commission Act 2009 (MACC Act), and by the Inland Revenue in an incomplete and unsigned notice, purportedly in reliance upon Section 80 of the Income Tax Act 1967 (ITA).

Both the law firms in question refused to grant access to such privileged materials and were in turn threatened with criminal action and sanctions for purportedly failing to comply with the unlawful demands made.

In this regard, the Malaysian Bar firmly takes the position that neither Section 31(1) of the MACC Act nor Section 80 of the ITA grants the MACC and the Inland Revenue the powers to embark on fishing expeditions to gain access to privileged materials and information. No provisions in the MACC Act nor the ITA override Section 126 of the Evidence Act 1950 or privilege at common law.

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Privilege is also expressly preserved by operation of Section 46(2) of the MACC Act, which categorically excludes any privileged information from being demanded by the MACC.

Accordingly, it is trite that privilege is absolute and it remains so until and unless expressly waived by the privilege holder (the client). Acting without a court order and making sweeping demands for privileged information without specifics of illegality, are an affront to Parliament’s will under the Evidence Act 1950.

Such fishing expeditions further disregard the decision of the Federal Court in Ketua Pengarah Hasil Dalam Negeri v Bar Malaysia (Bar LPP case), to which the director general of the IRB was a party. The Bar LPP case also confirms that there is no credible reason to override a client’s privilege in pursuance of an investigation against his or her lawyer.

This decision by the apex Court in our country fortifies the principle of legal professional privilege relating to non-disclosure of communications by an advocate and solicitor in the course of professional employment. This decision by the Federal Court upheld the decisions made at the Court of Appeal [Ketua Pengarah Hasil Dalam Negeri v Bar Malaysia (2022)] and the High Court [Bar Malaysia v Ketua Pengarah Hasil Dalam Negeri (2018) [2018] .

Privilege is fundamental to the principle of access to justice, ensuring that clients can fully trust their lawyers with their most sensitive and confidential information in order to obtain accurate and proper professional advice. Without privilege, there would be no confidence in the integrity of the administration of justice, and the legal profession would fall into disrepute.

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Demands – just because made by an enforcement agency – do not alter the nature of privilege, and the state cannot attribute nor impose duties on lawyers that would undermine them in the discharge of their duty towards their clients, which is wholly unconnected to their clients’ causes. This was made unequivocally clear by the Federal Court in Tan Chong Kean v Yeoh Tai Chuan & Anor [2018].

The MACC and the Inland Revenue cannot wantonly ignore the law and judgments of our superior and apex courts by resorting to intimidating tactics that are tantamount to abuse of power, with the hope of unlawfully piercing privilege to obtain confidential information held by lawyers. To do so, would be to their peril and would likely open themselves to face legal consequences.

The Malaysian Bar continues to be resolute and unwavering in its commitment to upholding privilege and reminds all members of the Malaysian Bar to remain vigilant and to zealously defend the sanctity of privilege without fear.

Karen Cheah Yee Lynn is the Malaysian Bar president

This piece is reproduced from here and has been edited for style only.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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