The Malaysian Bar is concerned to learn that Chan Weng Keng, a lawyer acting for SUARAM, was recently served with a written order by the police to produce documents relating to SUARAM, which is being investigated by various authorities. The Malaysian Bar is perturbed that, once again, the police seek to act in disregard of the well–established legal principle of solicitor–client confidentiality, and to continue to harass lawyers and obstruct the ability of a Member of the Bar to execute his professional duties effectively.
Such action by the police is oppressive, and constitutes blatant intimidation. It is an intolerable incursion on the independence of the Bar and a severe interference with a lawyer’s obligation to advise and act for clients without fear or favour. In addition, such behaviour is an appalling and unacceptable intrusion into a solicitor–client relationship, and makes a mockery of the fundamental principle of solicitor–client confidentiality by which lawyers are bound. It shows a grave lack of respect for the criminal justice system, as the solicitor–client privilege lies at the core of this system.
In this instance, a perception has been created in the public’s mind that the application of resources into, and the timing of, the investigations of SUARAM, as well as the mobilisation of various agencies in a concerted manner, is due to SUARAM’s efforts to have the Scorpene affair investigated, albeit in France. Contrast this with the dearth of investigations by the same Malaysian agencies into the alleged Scorpene affair and Malaysian entities involved. This selective application of resources and legislative provisions, and the clear abuse of our criminal procedure rules will, in the long term, undermine respect for the system of law and order, and damage the proper administration of justice, in this country.
The Malaysian Bar is also deeply troubled by the pattern of recurring incidents — involving enforcement and regulatory authorities — of harassment of lawyers, and interference with their professional duties in representing their clients, including the sanctity of the confidentiality of the solicitor–client relationship.
This harassment must stop if we are indeed committed to the principle of access to justice and to the rule of law. 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 recognised professional duties, standards and ethics.
Both litigants and their lawyers must be protected from any form of intimidation and interference in the exercise of the right to raise matters of legitimate public interest or concern, seek for proper investigations, and take any such matter to the courts for determination. Any interference with their rights and duties respectively is an affront to the administration of justice. These principles, which protect all citizens, must be understood and respected by the authorities.
The Malaysian Bar thus calls on the Inspector General of Police to put an immediate halt to the repeated cases of lawyers being harassed, intimidated and interfered with by the police, and to take stern action against police officers guilty of such behaviour. Bullying tactics must not go unchecked.
We urge the police to respect and give due recognition to the rule of law, which includes the right of access to legal representation without the undue harassment and intimidation of lawyers carrying out their duties as officers of the court.
We also call for the police to immediately withdraw the offensive order to the lawyer to produce confidential and privileged documents, and to respect the principle that lawyers must be allowed to discharge their professional duties without hindrance.
17 October 2012