ARTICLE 145(2) of the federal constitution states that it “shall be the duty of the attorney-general (A-G) to advise the Yang di-Pertuan Agong or the cabinet or any minister” on legal matters.

Simply put, the A-G is the legal adviser to the government. This is acknowledged by the Attorney-General’s Chambers (AGC) itself when it describes the A-G as the “principal legal adviser to the government.”

In most common law jurisdictions, the A-G is described as such. Other terms may be used. For example, Canada describes her A-G as the “chief law officer.”

But they mean the same.

Meanwhile, Article 145(5) states that the A-G holds office at the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.

Either way, the A-G is paid out of public coffers.

Based on the above, does a lawyer-client relationship exist between the A-G and the government? Hence legal professional privilege, which the modern law on it has two main categories, legal advice privilege and litigation privilege. The former covers all communications between the client and his legal adviser whereby legal advice is sought and given.

In Toralf Mueller v Alcim Holding Sdn Bhd (2015) MLJU 779, the high court had occasion to consider the scope of legal professional privilege as governed under section 126(1) of the Evidence Act 1950 (EA). According to Judicial Commissioner Wong Kian Kheong:

“(T)he word ‘advocate’ used in ss 126(1) EA, is not defined in EA. Section 3 (of the Interpretation Acts - IA) provides that the word ‘advocate’ means ‘a person entitled to practise as an advocate or as an advocate and solicitor under the law in force in any part of Malaysia’. Based on the meaning of the word ‘advocate’ given in s 3 IA —

 (i)   s 126(1) of the EA confers legal privilege on communications between a practising advocate and solicitor in Malaysia and their client;

(ii) s 126(1) EA does not apply to communications between an in-house legal counsel and his or her employer.

Now, the Legal Profession Act 1976 (LPA) defines an advocate and solicitor as an advocate and solicitor of the high court. The LPA also distinguishes an advocate and solicitor from a legal officer who is defined as a qualified person in the judicial and legal service.

Clearly in Malaysia, communications with an in-house legal adviser would not be protected by legal advice privilege under Section 126(1) of EA. This differs from the position in some other jurisdictions, notably Singapore, where communications with legal advisers other than qualified professional lawyers may be protected. (see section 128A of the Singapore Evidence Act)

That said, it appears that the A-G is more of an in-house counsel with the government as his employer. This is not being disrespectful to the high office of A-G.

As such, section 126 of EA does not apply to communications between the A-G and the government. There is no lawyer-client relationship between the two.

In any case, even if legal professional privilege applies, the privilege is that of the client (government) and not the lawyer (A-G). If a former A-G is spilling the beans on communications between him and the government or members of the government, then the government should have acted with urgency for a prohibitory injunction to prevent the publication of his memoirs.

It’s all spilt beans now. – February 2, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.