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The Malaysian Bar is troubled to learn of the Securities Commission's recent drastic and oppressive actions, whereby it questioned journalists on the Kenmark shares issue, denied at least one of them the right to uninterrupted legal representation during questioning, and further, served a notice on the latter’s lawyer to present himself for questioning as well. 

Such conduct by the Securities Commission constitutes blatant intimidation.  It represents a severe encroachment upon the freedom of the press and the role of journalists, and jeopardises a journalist’s right to protect his/her sources of information, as provided for in the National Union of Journalists’ Code of Ethics.

Moreover, denying an interviewee her counsel of choice is unjust, and calls into question the transparency and accountability of the Securities Commission when conducting its investigations.  The presence of a lawyer when an individual is questioned promotes accountability because lawyers serve as a crucial safeguard for the rights of the interviewee, and also function as a check-and-balance, on the spot, against any excess.

The Securities Commission’s actions are also tantamount to harassment of lawyers, as such behaviour threatens the independence of the Bar and interferes with a lawyer’s obligation to act for clients without fear or favour.  In addition, such questioning makes a mockery of the fundamental principle of solicitor-client confidentiality by which lawyers are bound. 

It is internationally recognised that lawyers perform a vital function when they act for their clients in the pursuit of justice, and that they must be permitted to carry out these functions freely.  For example, Article 16 of the United Nations Basic Principles on the Role of Lawyers provides that “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
 
The Malaysian Bar is also concerned that section 134(2) of the Securities Commission Act 1993 provides that a witness cannot refuse to answer any question even on the ground that it tends to incriminate him, which is harsh and more severe than the Criminal Procedure Code, which allows a witness to “refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture”.  The Securities Commission Act 1993, and other legislation with similar provisions, are regressive, as they deny rights of witnesses, which are guaranteed in the Criminal Procedure Code. 

The Malaysian Bar urges the Securities Commission to give due recognition to the right of access to legal representation, which is a fundamental tenet of the Rule of Law and should be an unfettered right that can be freely exercised in any democratic society.  We also call for the Securities Commission to withdraw its notice to the lawyer to attend for questioning, and to respect the principle that lawyers must be allowed to discharge their professional duties without interference. 


Lim Chee Wee
Vice-President
Malaysian Bar

6 July 2010