Friday, October 09, 2015

Bar:- The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship

Press Release | The Police Must Not Misuse SOSMA, and Must Not Ignore the Solicitor-Client Relationship PDF Print E-mail
Friday, 09 October 2015 08:31pm
ImageThe Malaysian Bar is outraged over the detention of Matthias Chang — a Member of the Malaysian Bar and one of the lawyers representing Dato’ Sri Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), a politician and vocal critic of 1Malaysia Development Berhad (“1MDB”) — under the Security Offences (Special Measures) Act 2012 (“SOSMA”).  The detention is reportedly for investigations into allegations of having committed offences under Sections 124K (sabotage) and Section 124L (attempt to commit sabotage), both under the Penal Code. 
Matthias Chang was arrested by the police yesterday after visiting his client, who is currently being detained at the Dang Wangi District Police Station.  It has been reported that Matthias Chang is now to be detained for up to 28 days.

It had been earlier reported that Matthias Chang and his client had both been barred from travelling outside Malaysia on 18 September 2015, and that they were about to travel to New York for the purpose of meeting with the Federal Bureau of Investigation in relation to allegations of financial impropriety concerning 1MDB.[1]   Subsequently, Matthias Chang was questioned by the police on 28 September 2015 and 2 October 2015, as a witness in respect of the allegations levelled against his client. 

It is inexplicable that the police have now detained Matthias Chang under SOSMA, as he has been cooperative in presenting himself for questioning by the police thus far.  His arrest is an absolute misuse of the power of arrest and detention under Section 4 of SOSMA.

The Malaysian Bar expressed reservations over the use of SOSMA on Dato’ Sri Khairuddin in our press release dated 2 October 2015.[2]   These same concerns apply to Matthias Chang.  SOSMA was legislated to address terrorism threats and violent conduct. SOSMA must not be misused as a replacement for the repealed Internal Security Act 1960 (“ISA”).  The manner in which the police have resorted to SOSMA against Dato’ Sri Khairuddin and Matthias Chang is disquieting, as it appears that SOSMA is becoming the new ISA. 

The Malaysian Bar denounces the intimidation, harassment, arrest or detention of any Member of the Malaysian Bar in the discharge of his or her duties or obligations for and on behalf of any client.  Every Member of the Malaysian Bar is obliged to, and must be allowed to, act without fear or favour in the client’s interest, with due regard to the rule of law and the administration of justice.   

The Chief Justice of Malaysia, The Right Honourable Tun Arifin Zakaria, has observed that “… the lawyer does not merely carry out the duties he is professionally trained for, but assumes a special role in safeguarding the sanctity of the legal system and more importantly to uphold the rule of law.”[3] 

It is also important to note that Articles 16 and 18 of the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990, state that:

16. 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.


18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

The Malaysian Bar further condemns any attempt to transgress or erode the principle of legal professional privilege or solicitor-client privilege, in the guise of a purported investigation of a lawyer. The rationale underpinning the principle of legal professional privilege is that:

(a) it is of fundamental importance, for the proper administration of justice, that clients should enjoy absolute confidence in respect of all communications with their lawyers for the provision of legal advice and/or representation;
(b) the principle promotes the public interest, because it assists and enhances the administration of justice by facilitating the representation of clients by their legal advisors; and 
(c) the system of administration of justice depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. 

The principle of legal professional privilege must remain inviolate and absolute, as it protects all information provided by a client to the lawyer for the purposes of legal advice or representation, whereby the information cannot be divulged by the lawyer to anyone, unless the client waives the privilege.  This principle is codified in Section 126 of the Evidence Act 1950, with two limited exceptions that render the privilege inapplicable, namely, where there is “(a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment”.

The police must scrupulously adhere to this salutary principle — well-entrenched in both statute and common law — of legal professional privilege, and must not seek to obtain from Matthias Chang any information given to him by his client, Dato’ Sri Khairuddin, by ignoring or breaching this long-standing principle. Any interference with the principle is wholly abhorrent, and obverse to the administration of justice.
The Malaysian Bar demands that the police recognise and respect the role and responsibilities of Matthias Chang as a lawyer, release him immediately, and refrain from any action that is likely to harass, impede or obstruct him from performing his duties to his client.

Steven Thiru
Malaysian Bar

9 October 2015      


The Malaysian Bar denounces the intimidation, harassment, arrest or detention of any Member of the Malaysian Bar in the discharge of his or her duties or obligations for and on behalf of any client.  

The Malaysian Bar will hold a candlelight vigil to reaffirm the independence of the Bar, as follows:

Date:  Tomorrow, 10 October 2015 (Saturday)

Time:  7:30 pm to 10:00 pm

Venue:  Bar Council, 15 Leboh Pasar Besar, 50050 Kuala Lumpur

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