In early November 2018, reports began to emerge that the lawyer representing Asia Bibi, a Christian woman acquitted of blasphemy after eight years on death row, had fled Pakistan in fear of his life. Saif ul-Malook worked on Asia Bibi's case for four years before her appeal was heard in the Supreme Court on 8 October 2018. The court's 56-page decision, overturning Ms Bibi's sentence, was published on 31 October 2018. Mr ul-Malook subsequently faced threats before leaving the country.
When lawyers are prevented from carrying out their professional duties because of the clients they represent or the cases on which they are instructed, the rule of law is in peril. Whether lawyers are subjected to intimidation through office raids and surveillance, threats through abuse of disciplinary procedures, or physical attacks and imprisonment, these actions undermine the independence of the legal profession and the rule of law.
The distressing reality is that many countries tolerate and at times orchestrate these attacks on the profession. Beyond the impact on the lawyers themselves and the system they attempt to work in, the persons accused also suffer because it becomes hopeless to secure legal representation, meaning that their right to access to justice is denied.
Rights of lawyers are not an abstract concept; they are enshrined in international principles. Principle 16 of the UN's Human Rights Office of the High Commissioner Basic Principles on the Role of Lawyers providesinter alia, 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 […]; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions […]". The Basic Principles go even further in that they create an obligation on the authorities to protect lawyers where their security is threatened as a result of discharging their functions (Principle 17).
It is encouraging that the Council of Europe is now gearing up to draft a binding Convention on Profession of Lawyers, as it has been recognised that non-binding recommendations to governments have too easily been ignored. The Bar Council has driven much of the advocacy by the Council of Bars and Law Societies of Europe and has persuaded our government to back this new instrument which will hopefully get the go ahead in the Council of Ministers in January.
The International Committee of the Bar Council of England and Wales seeks to support the rule of law internationally, and routinely tracks situations in foreign jurisdictions in which lawyers are at risk from human rights abuses for doing no more than exercising their vocation and fulfilling their duties. The International Committee is also tasked with promoting the standing and the interests of the Bar internationally, as well as furthering its objectives by cooperating with foreign bars and legal professions abroad. The links that the Bar Council has developed, forged and consolidated over the years is impressive - particularly in China, Russia and the major jurisdictions in Latin America - and most of these relationships are due to the International Committee's hard work. I have participated in three Bar Council missions abroad, including to Brazil, South Korea and Shanghai, and Mexico City, all of which were eye-opening, successful in terms of the Bar Council's strategic aims, and beneficial to my practice and professional development.
Since 2015, the Bar Council has published all its statements and letters of concern whenever a situation arises that calls for its reaction. These situations include the mass arrests of lawyers in Turkey in 2016, the arrests of lawyers and shooting of the Law Society President in Tanzania in 2017, and the changes to the Polish Supreme Court Act earlier this year. The Bar Council also publishes its list of countries to watch where abuses have been ongoing. This year, the four countries on the Bar Council's list are:
(1) Iran - where lawyers are routinely banned from practising, arrested, detained and prosecuted as a result of accepting instructions in sensitive cases;
(2) China - where authorities continue to arrest, detain and prosecute human rights lawyers more than three years since the 9 July 2015 'crackdown' on about 300 lawyers and activists;
(3) Cameroon - where anglophone lawyers have been persecuted and prosecuted; and
(4) Turkey - where the legal profession continues to be under fire following the state of emergency since the failed coup d'état in July 2016.
The International Committee meets six times a year, and is composed of driven barristers of different call with international practices and interests touching on international law, cross-border issues and cases in foreign jurisdictions. They give up their time to ensure that the committee's terms of reference are fulfilled, and their efforts result in positive, progressive and constructive influence abroad.
70 years ago today, the UN General Assembly adopted the Universal Declaration of Human Rights. The principles enshrined in the Declaration are as relevant today as they were in 1948, and the Bar Council will continue to voice its concerns and advocate on behalf of lawyers whose human rights are in peril.
Alex Haines is a member of the Bar Council's International Committee. He specialises in international law, particularly in the extensive field of international organisations law. His practice areas include economic sanctions, corruption and the institutional law of international organisations including the UN and the World Bank.