When investigators target a defence lawyer, even indirectly, it risks chilling open communication and weakening an accused person’s ability to mount a proper defence.
From P Sundramoorthy
The recent controversy involving the Malaysian Anti-Corruption Commission (MACC) and its decision to summon lawyer Mahajoth Singh, the counsel for controversial businessman Albert Tei, raises serious questions about the boundaries of investigative powers and the protection of fundamental legal rights.
Lawyers for Liberty has accused MACC of abusing its authority after the lawyer was summoned late at night, less than 24 hours after allegedly being denied access to his detained client. LFL argues that the move amounts to intimidation and represents a breach of solicitor-client privilege, one of the core principles underpinning the justice system.
MACC maintains that its actions are lawful under the MACC Act 2009, which empowers the commission to summon “any person” believed to have information relevant to an investigation.
The agency argues that lawyers are not exempt from such requirements and that the summons was part of routine procedure. MACC further insists that legal privilege covers advice, not necessarily all documents or information held by counsel.
Mahajoth has stated that he will cooperate but only “under strong protest”, emphasising that he will not disclose confidential communications with his client.
Lawyer-client privilege
At the heart of this dispute lies a fundamental issue: where is the line between legitimate investigation and institutional overreach?
Solicitor–client privilege is not a mere procedural formality. It is a central safeguard that ensures individuals can seek legal advice candidly, without fear that their private discussions will be weaponised against them.
From a criminological perspective, this confidentiality is essential to the adversarial justice system. It promotes trust, encourages full disclosure by clients, and enables lawyers to provide effective defence.
When investigators target a defence lawyer, even indirectly, it risks chilling open communication and weakening an accused person’s ability to mount a proper defence.
Criminological analysis also reminds us that agencies vested with broad investigative powers must be constrained by equally robust safeguards. Institutions such as MACC play a crucial role in combating corruption, complex crime often involving secrecy, networks, and high-level actors.
Yet, powers designed to fight corruption can become coercive if deployed without proportionality or sensitivity to rights.
Justice and fairness
The timing and manner of the summons, late at night and following a disputed denial of access to a detainee raises legitimate concerns that the objective may have extended beyond mere fact-finding.
Even if technically permissible, such actions risk undermining the appearance of neutrality and fairness.
Public confidence in the justice system depends heavily on the perception of fairness. When defence lawyers can be summoned abruptly and placed under investigative scrutiny, it signals that the right to counsel may be vulnerable to pressure. This carries broader implications.
Overreach can deter lawyers from taking on high-risk or politically sensitive cases, encourage self-censorship, and create an uneven playing field between the state and individuals facing investigation. Over time, such an imbalance erodes public trust in institutions and the rule of law.
Globally, many jurisdictions recognise defence counsel as a protected category due to their essential role in safeguarding justice. While legal privilege is not absolute, breaches typically occur only under exceptional circumstances and often require judicial oversight.
Possible consequences
Malaysia’s legal framework encompassing the MACC Act and the Evidence Act contains inherent tensions that must be carefully navigated. Investigative powers cannot operate in isolation from constitutional safeguards designed to uphold fairness and due process.
If practices like this continue unchecked, several consequences may follow.
First, a chilling effect may emerge, discouraging legal practitioners from representing clients in sensitive cases.
Second, repeated encroachments on legal privilege may weaken due process protections, leaving accused persons with diminished confidence in the fairness of investigations.
Third, selective or aggressive use of summons powers can fuel perceptions that enforcement is arbitrary or politically motivated. This is particularly dangerous in corruption cases, where public trust is fragile and allegations of selective prosecution are common.
Fourth, Malaysia’s international reputation may suffer if global observers interpret such actions as undermining the right to a fair trial.
In criminology, justice must be effective and principled. A system that subjects defence counsel to undue pressure risks weakening its own legitimacy. Anti-corruption efforts are vital to national governance, but they must be pursued in ways that reinforce, not erode, constitutional protections. Otherwise, Malaysia risks fighting corruption at the cost of weakening the very foundations of justice.
Reforms needed
To safeguard trust, several reforms merit consideration. Clearer guidelines should define when investigators may summon lawyers, ideally requiring judicial approval in circumstances involving potential breaches of privilege. Stronger statutory recognition of solicitor–client privilege within anti-corruption laws would help prevent misuse.
Transparent oversight mechanisms should ensure that summonses to lawyers are monitored and accountable. Investigators should receive training on the legal and ethical obligations surrounding the defence counsel’s role.
Finally, parliamentary or judicial review may be required to clarify the boundaries of MACC’s authority in relation to constitutional rights.
Ultimately, the controversy surrounding the summons of Tei’s lawyer is more than a procedural disagreement.
It raises fundamental questions about state power, legal protection, and the health of Malaysia’s justice system. In any society committed to the rule of law the ends, regardless of how laudable, cannot justify eroding rights.
If the current administration aims for both clean governance and credible justice, this incident should serve as a sobering reminder that due process is not an obstacle to justice, but its very foundation. - FMT
P Sundramoorthy is a criminologist at the Centre for Policy Research at Universiti Sains Malaysia and an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.
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