Proctor : November 2017
3 PROCTOR | November 2017 Though the stakes are considerably higher at an international level, I recently learned at the Law Asia Conference, we lawyers are all grappling with the same issues. That is, protecting the rule of law. It is the rule of law that keeps governments in check. The global legal profession is comprised of around 12 million lawyers. We share fundamental beliefs. We stand between the state and the individual, ensuring that rights for all are created and enforced, justly and equitably. The more power a state has, the fewer rights individual citizens have in a community. By increasing state power, governments increase their control over their citizens; although state actors often claim that this is for the benefit of the citizenry, it is rarely the case. All too often it is done to advance populist causes and exclusionary mandates designed largely to maintain power. Despotic regimes and more legitimate governments alike across the world persistently attempt to muzzle the voice of law societies. Why? Because we are the ones who stand up for the rule of law. By dampening, and in some cases silencing the voice of those who stand for the rights of individual citizens, governments have greater freedoms in expanding their powers and diminishing the rights of the individual. By persistently demonising legal bodies, seeking to control the licensing of legal practice (practising certificates), and the appointment of judges, the state is able to vet and control the very lawyers whose role it is to monitor the conduct of government. Another method governments use, is to control the voting process for those who may lead legal organisations. This recently occurred with the Malaysian Bar Association, after the leaders exposed corruption in the government. By controlling the lawyers, their representative bodies, and diminishing the value of lawyers in society, governments dilute the capacity of lawyers to speak out against injustice and the deprivations which accompany the diminishing of the rule of law. History is replete with examples of dictators who have targeted the legal profession to facilitate and perpetuate their hold on power. Both Mussolini and Hitler had thugs beat, rob and harass the lawyers who stood against them, those brave souls who stood up for the rule of law even though their lives were at risk. For those like Hans Litten, the German lawyer who once cross-examined Adolf Hitler, the ultimate price was paid, with Litten dying in Dachau during the war. Unfortunately, it cannot be said that the threat to the rule of law is confined only to history. For example, in the last year alone, the Tanzanian Law Society president has been arrested six times. The charges he has faced include insulting the president of the government – which may give some indication as to the credibility of, and underlying motives for, the charges. Another example is Zambia. There, the ruling government has made threats against the bar association because the president of their association has spoken out against the government. These examples are given for their patency, however the concern common to us all, is the latent, incremental degradation of fundamental rights. The chipping away at fundamental legal principles, often under the guise of protecting the public, is a device used by governments worldwide, Australia included. While being charged for insulting a politician or disagreeing with the government seems unimaginable to most of us, that will only be true if we remain vigilant in our support for the rule of law. Such assaults on human rights need not be sought via one blatant stroke unlikely to be tolerated by the Australian public, but can be achieved by the subtle and continual erosion of protections; legitimate concerns, such as the fear of terrorism and concerns about money laundering, can be twisted to justify the reduction of fundamental legal rights, such as the right to legal confidentiality and privilege. One way lawyers can prevent increased government power is to have the support of the community and to speak out when there is any encroachment on the rule of law and the role of lawyers within. The importance of speaking out about unjust/inequitable laws or their enforcement is critical. Prominent LawAsia representatives emphasised that is what we do as lawyers – speak out. The presence of effective law societies, prepared to exercise their voice, is essential in tempering the corrupt conduct and legislative overreach of zealous governments determined to reduce the rights of citizens. Christine Smyth Queensland Law Society president firstname.lastname@example.org Twitter: @christineasmyth LinkedIn: linkedin.com/in/ christinesmythrobbinswatson President’s report The rule of law Why does it matter in a free and just society?