Will Australia's barristers boycott legal work in Malaysia in protest of the perceived lack of independence in its judiciary?

by Ganesh Sahathevan

Chris Leong, Past President, Bar Council of Malaysia, Tan Sri Datuk Seri Panglima Richard Malanjum, Chief Justice of the Federal Court, Malaysia, Arthur Moses SC, President, Law Council of Australia, Elizabeth Espinosa, President, Law Society of New South Wales, Datuk Seri Panglima David Wong Dak Wah, Chief Judge of The High Court of Sabah and Sarawak, and Andrew Goledzinowski AM, Australian High Commissioner in Malaysia at the High Commissioner's residence in Kuala Lumppur.Moses was nvited to give an address at the Australian High Commission.

This excerpt from a 1990 article by the then President of the NSW Bar Association, Nicholas Cowdrey QC was discovered in the course of this writer’s ongoing (and admittedly self-interested ) research into the Australian legal establishment and in particular the NSW Bar's attitudes to Malaysia under Mahathir.  In an article tilted " Nick Cowdery QC reports on the judgment of the Supreme Court of Malaysia in Manjeet Singh Dhillon's case". Cowdrey concluded:

What do the judgments (and the manner of their preparation and delivery) say about the independence of the judiciary in Malaysia? What do the judgments say about the future of the rule of law in Malaysia? Just what are the "local circumstances" in Malaysia? How secure is the future and the independence of the Malaysian Bar? We should watch for the answers


Cowdrey’s comments  remain relevant to this day given the recent comments by the president of the Law Council Of Australia and immediate past president of the NSW Bar Association, Arthur Moses SC, in Kuala Lumpur in January this year(see photo and link  above).  Readers will recall that Moses thought it necessary to remind his audience of the 1987 judicial crisis in Malaysia, and to insist that PM Mahathir was responsible for that incident, despite statements made last year (while Mahathir led the opposition against Najib) by Abu Talib Othman, who was AG in 1987, contradicting the assumption that Mahathir was responsible for the 87 crisis. See previous story by this writer:

Assisted by DFAT,Australian lawyers take aim at Mahathir,while seeking new markets in Malaysia-REPOST with tweet from the Australian High Commissioner to Malaysia ,Andrew Goledzinowski ‏ Verified account


All of the above needs to be seen in the context of the actions of the Attorney General of NSW, Mark Speakman SC, and his officers, who insist that Mahathir financed this writer’s 1MDB investigation and publications, which were then fed to the ABC’s 4 Corner’s program, to wrongly and maliciously accuse the former PM Najib Razak of involvement in the 1MDB scandal:

Diplomatic incident brewing: Mahathir declares Raja Petra a liar,AG NSW and his department insist that RPK is a credible source of information about Mahathir


Speakman, his officers, and indeed the NSW Bar have seen no need to comment on their actions ,despite the scandal they have perpetuated against the newly elected prime minister of Malaysia , and despite the matter being reported nationally in The Australian, on 17 January 2019, the same day Moses delivered his speech in Malaysia(see story by Ben Butler )


In his 1990 article (which should be read in full and is available at the link provided above) Cowdrey seemed to suggest that public condemnation of judges is justifiable when judges misbehave. Here in NSW on the other hand he and the NSW Bar Association seem to have preferred silence despite facts reported in The Australian, which in effect call into question the judgment and skills of some of the state’s most senior judges and lawyers, including the Chief Justice. 

The Chief Justice NSW Tom Bathurst was once president of the Australian Bar Association (ABA). The ABA has in the past complained that the independence of the Malaysian Bar was being threatened:
Independence of Malaysian Bar under threat

Meanwhile, Australian barristers and solicitors seem happy to pursue business in Malaysia despite the lack of independence  they complain of, among judges and lawyers.

That pursuit of business has now expanded to include legal education, with the Australian  legal establishment's College Of Law promoting its "LLM in Malaysian Legal Practise" in Malaysia. The College has made a number of claims about its contribution to legal practice in Malaysia, which have been denied by the relevant Malaysian authorities. The relevant authorities in Australia including the Law Society NSW and the Legal Profession Admission Board(LPAB) appear to have decided to ignore the Malaysian information (which includes correspondence from the Registrar , Federal Court Malaysia).

Of greater concern is the fact that the LPAB  has made adverse findings against this writer for informing and querying the Attorney General's Chambers Malaysia about the College's Malaysian adventure.

It should also be noted  that where necessary Australia's lawyers and judges are prepared to prefer Malaysian judgments, regardless of how tainted the judgments might be, to those of their own courts.

This writer can report that in  making adverse findings against him the   LPAB preferred the judgement of   Saufee Affandi of The Industrial Court Malaysia  which favored Vincent Tan, to that of his own Supreme Court Of NSW in Carlovers Carwash Ltd, which went against Tan in spectacular fashion. In doing so the LPAB agreed with Affandi that this writer had breached criminal laws in Malaysia with regards the dissemination of false news, and criminal defamation, despite he never being even charged  or investigated for those crimes. Readers may recall that the story which earned this writer his sacking from The Sun by Vicnent Tan concerned the business dealings of among others Mokzhani Mahathir.

END

NOTE

The ABA considers its work in Malaysia and South East Asia to be part of its charitable outreach,as it claims in a 2014 press release:
“Australian barristers already contribute thousands of hours of pro bono training and professional development for our colleagues in Asian nations.....".