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Azam Baki, get your facts right

The federal government must step in and carry out a proper inquiry on MACC's breach of lawyer-client privilege.

Zaid Malek
3 minute read

We refer to the chief commissioner of the Malaysian Anti-Corruption Commission (MACC) Azam Baki’s denial of the disclosure by two lawyers that they were detained, intimidated and harassed in the discharge of their duties, interfering with the publics’ right to legal representation. 

Azam claimed that lawyer Lai Chee Hoe is being investigated for “embezzlement” and abuse of power for his role as the former chairman of a joint management committee (JMC) which was the subject of their investigation.

Firstly, it is unacceptable for Azam to outright deny the lawyers’ complaints before even making any enquiry into their allegations. 

This suggests that MACC is not interested in finding out the truth or the real facts of the matter. This attitude is reminiscent of the Teoh Beng Hock case. 

It is blatantly contrary to good governance for the head of an enforcement body to simply dismiss public complaints without properly enquiring into it. Every public complaint must be fairly and impartially looked into.

Secondly, lawyer Lai Chee Hoe was never the chairman nor a member of the said JMC as falsely claimed by Azam.

Lai was merely acting as the lawyer for the JMC at the material time. In his haste to deny wrongdoing on the part of MACC, Azam totally failed to even ascertain the true facts of the case. 

This throws into doubt the entirety of his denial of wrongdoing by MACC in this case.

Thirdly, if MACC claims that they are investigating the “embezzlement” of a JMB’s funds, why did officers demand that the lawyer withdraw from acting for his client? What has this to do with the purported “embezzlement” investigation? 

The explanation that it was a legitimate “embezzlement” investigation is thus far-fetched and ridiculous.

Fourthly, when the lawyer was in custody, the questions asked and the statement recorded by MACC had nothing to do with any “embezzlement” investigation. 

Instead, MACC asked extensive questions about the legal case in which the lawyers were involved, blatantly contrary to lawyer-client privilege which is protected under Malaysian law. 

MACC cannot now deny this as the statement recorded from the lawyers is a public document which can be disclosed in due course.

Fifthly, Azam and MACC completely failed to explain why the other lawyer, Irwin Lo, was asked to disclose documents protected by lawyer-client privilege regarding the case he was handling for the JMC. 

This unlawful demand by MACC officers is proven by a WhatsApp communication from the MACC officer to the lawyer, which was disclosed at the press conference yesterday. 

That in the face of this evidence, MACC continues their denials is brazen and astonishing.

Sixthly, we are baffled that MACC is relying upon Section 31 of the MACC Act 2009 to justify its actions on Lai and Lo. 

Section 31 merely lays out MACC’s powers of search and seizure. In no way does Section 31 authorise contravening lawyer-client privilege. 

For MACC to rely upon Section 31 is desperate and irrelevant.

To prevent MACC from further misleading, we will state it very clearly. It is a cardinal and basic principle of law that communications between an advocate and his client are privileged and cannot be disclosed by him to any other parties, even to enforcement agencies. This principle is contained in Section 126 of the Evidence Act 1950 and has been upheld by the courts. 

Nothing in Section 31 allows MACC to disregard lawyer-client privilege. 

The big question remains: why did MACC conduct themselves in this unjustifiable manner in this case, breaching the public’s sacrosanct right to legal representation? 

Despite such a serious allegation levelled against MACC, it is obvious here that the MACC chief has utterly failed to conduct a proper enquiry and get the facts of the complaint ascertained before issuing a response.

As such, we demand that the federal government step in and ensure that a proper inquiry is made regarding these allegations against MACC. 

We further demand the government to assure the public that harassment and intimidation against lawyers for carrying out their duties for their clients would not be tolerated and will be immediately halted. 

It must be ensured that the public are allowed to consult and be represented by any lawyer of their choice. 

The intimidation and harassment of lawyers in the discharge of their duties is a contravention of this right and will lead to the compromise and regression of the justice system as whole. 

Zaid Malek is director, Lawyers for Liberty.