The Malaysian Bar is once again appalled by the recent action of the Malaysian Government to prohibit UK-based lawyer Imran Khan from entering Malaysia. Khan had travelled from London to Kuala Lumpur to meet with his clients, speak to various parties about his clients’ case and gather further information about the marginalisation of the Indian community in Malaysia. This is the subject of a class-action law suit by the Indian community in Malaysia against the British Government.
Khan was prevented from entering Malaysia on the basis that he was a “prohibited immigrant”. The Malaysian Government is obliged to state which particular provision of section 8(3) of the Immigration Act 1959/1963 Khan violated, which resulted in him being declared a “prohibited immigrant”. Pursuant to section 8(4), the burden of proof that any person seeking to enter Malaysia is not a prohibited immigrant shall lie upon that person, but this is rendered impossible if Khan was never informed of the specific allegation against him.
Khan’s prohibition follows the earlier deportation of William Bourdon, the Paris-based lawyer for human rights non-governmental organisation Suara Rakyat Malaysia (better known as SUARAM). SUARAM has initiated legal proceedings in France in relation to the purchase by the Malaysian Government of two Scorpene submarines.
The crude manner of Bourdon’s expulsion and Khan’s prohibition gives rise to speculation of the motive underlying the government’s action, and begs the question of why the government appears afraid of these two foreign legal proceedings.
In both instances the Malaysian Government breached the principle of natural justice, a foundational element of administrative law. By failing to inform either person of the specific grounds for his deportation or prohibition, and by refusing to afford either of them an opportunity to challenge the order, the Malaysian Government failed to uphold a basic tenet of administrative law, thus breaching their human rights.
In so doing, the Malaysian Government reneged on its responsibility under the Basic Principles on the Role of Lawyers. These basic principles were adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1990, which the Malaysian Government attended and supported. Paragraph 16 of the Basic Principles mandates 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.” In respect of Bourdon and Khan, the Malaysian Government did none of these.
The Malaysian Bar calls upon the Malaysian Government to cease interfering with the right of foreign lawyers to meet with their Malaysian clients in respect of foreign legal proceedings. In light of the pending liberalisation of the Malaysian legal profession and the entry of foreign lawyers into Malaysia to practise foreign law, it is counter-productive for the Malaysian Government to turn away foreign lawyers who take up causes that are unpopular with the Malaysian Government. This lack of respect for the independence of lawyers does not bode well for the international reputation of Malaysia.
Lim Chee Wee
23 August 2011