The endangered lawyer and the cost of independence

Sophia Kerridge

5 St Andrew’s Hill, London

I’m sure that when the news rolled in recently that Mexican citizens had gone to the polls to elect judges for the Supreme Court, as well as local and federal judges, some 2,600 positions, many of us would have been thinking back to the IBA Annual Conference (AC) in Mexico City in September 2024.

The AC was fortuitous timing, coinciding with the anniversary of Mexican independence and the inauguration of Mexico’s first female president, Claudia Sheinbaum, the following month. Mexico was a brilliant choice for the event, a true feast for the senses.

On the one hand, the AC was what you would expect. As a new IBA member, I was lucky to have got myself a role in the mock trial organised by the Criminal Law Committee. I wish I could say that we toiled late into the night to produce a masterpiece of legal comedy, but as good criminal lawyers we spent most of the time sharing war stories and then planning which events to prioritise. That didn’t stop our mock trial making it onto Mexican television! The Criminal Committee did not have an easy job putting it together, trying to coordinate meetings with lawyers across all time zones must have felt like herding cats, and I suspect it did not get easier in Mexico when competing with evenings of Lucha Libre, Law Rocks and/or cocktails disguised as networking.

The push for judicial independence

However, as far as our Mexican counterparts were concerned, any excitement was overshadowed by the judicial reforms being voted in by the legislature over those days and the impact it might have on judicial independence.

The city was awash with protest and strikes. The AC itself was not exempt either. On the first day, I manoeuvred through a group of protesters outside the conference centre and into the opening ceremony, which included an emotive speech by the Chief Justice of the Mexican Supreme Court, Norma Lucía Piña Hernández, followed by some rousing oratory from former president of Mexico, Ernesto Zedillo. The mock trial, the obvious highlight of the AC for us criminal practitioners, was due to take place at the Supreme Court, but it had to be moved at the last minute owing to the strikes (Criminal Law Committee to the rescue!). Just days earlier, the Senate of the Republic of Mexico had been stormed by protesters.

Judicial independence and corruption have long been issues in Mexico, so I doubt anyone would disagree that significant reform was much needed. However, it was not clear whether these bold reforms were actually aimed at ending all judicial corruption, or if it was aimed more towards eliminating that which was ‘unhelpful’ to the government. Let me explain.

My understanding is that, firstly, there is an open call for candidates. Judicial and government committees then filter these down to a pool of ‘suitable’ candidates. The remaining candidates then go to a popular vote. Judgeships would be for a fixed term and then subject to ‘re-election’. It will be the first such exercise of its kind in the world. 

Many of our Mexican counterparts had real concerns that candidates with political or financial capital were those most likely to make it past the filtering stage and onto the electoral ballot. Anyone critical of the government could be filtered out quietly. Goodbye judicial independence. I wonder, would the Supreme Court in the UK have decided differently when it came to Rwanda or Brexit if their re-election was dependent on getting past a government committee?

Secondly, there were concerns that a public vote would reduce the quality and impartiality of the judiciary. What would a desirable candidate look like? Those with political or financial backing would undoubtedly have an advantage in courting the public. Those with more extreme views or those with greater charm might get disproportionate press attention. Those pushing high conviction rates and harsher sentences could be expected to garner stronger popular support. It will be interesting to see if mercy or nuanced sentencing garner any votes from the public.

The appointment of judges in this manner makes the role a political one. I picture Lady Justice keeping one eye on her scales, but the other firmly on the opinion polls, and adjusting those scales accordingly.

Mexico may seem far away to my British colleagues, and their justice system is undoubtedly different to ours. Nevertheless, the credibility of justice systems in both countries is dependent on the independence of its lawyers and judges.

And that independence can be threatened in so many different ways.

The threats to judicial independence

Of course, the most obvious threat to independence can come in the form of direct intimidation or attacks. Unfortunately, we have no statistics on how many lawyers across the world have been threatened, harmed or killed due to their work. What is true, is that the danger that accompanies being a lawyer depends in large part on the type of law and the country in which you practise.

The 24 January is the International Day of the Endangered Lawyer. It was a date chosen because it falls on the anniversary of the 1977 Atocha Massacre, when the offices of a law firm in Madrid were stormed by gunmen who opened fire, killing five and seriously injuring four others. It was a tragedy that El País newspaper considered to be ‘the night Spain’s transition to democracy nearly derailed’, were it not for the huge public outcry and peaceful protests that followed.

Each year a different country is chosen to be the focus of the International Day of the Endangered Lawyer. Last year it was Iran. This year it is Belarus.

As we learnt in the UK last summer, in the wake of the Southport attack and the subsequent riots, it does not take much for lawyers to find themselves in the firing line. Years of loose political talk vilifying immigration and human rights lawyers opened the door to the circulation of a list on social media identifying ‘targets’ that included the names, offices and home addresses of many colleagues. Offices were forced to close temporarily and working practices altered to ensure their safety.

Before qualifying as a barrister based in London, I worked as a human rights observer in Colombia for a number of years. When I left in 2014, close to 400 lawyers had been killed in the previous 13 years as a result of their work. For many of the lawyers I worked with, threats and acts of intimidation were not uncommon and included threatening letters hand delivered to your door or being followed as you picked up your child from school. It was an open secret that those in the public sector might be asked to tamper with evidence or guarantee a case outcome. The first case I ever observed was a retrial, the first judge had been shot and killed in her car on the way to court. It was always assumed that in these cases the judge or lawyer would have been given a choice: do what we ask and you live; take the bribe or the bullet.

The one thing uniting all these types of violence is that the ultimate target is the judge or lawyer’s independence: the arguments we are prepared to put forwards; the clients we are asked to represent. While the risk for some comes in the form of threats of violence, the reality for many is a threat far more subtle, the threat to their livelihood. It is neither cheap nor easy to become a lawyer and involves a multitude of sacrifices. Imagine your employment as a prosecutor, or appointment as a judge were conditional on you making decisions that were favourable to the government, what would you do? It probably wouldn’t even be a direct request, it would come in the form of an expectation, a suggestion.

Unspoken expectations

Which is why, certainly in principle, the new judgeship system in Mexico is so concerning and one that we should keep an eye on to see how it ends up working in practice.

It is trite to say that it has never been more important to support our colleagues whose ability to practice without interference is being curbed.

The IBA of course takes a strong and proactive role in such activities, as it is well placed to do. Outside of this, there are opportunities to get involved in in amicus curiae projects or delegations of lawyers traveling to monitor and report on certain situations. We must not forget, however, that it is sometimes small acts of solidarity or friendship that can be impactful too.

During my time in Latin America, I saw first-hand the real impact that shining an international spotlight has on these threats. Aside from raising the profile of the issue and offering support to those involved, it reaffirms what the norms are. It highlights the international consensus that independence is a non-negotiable principle of our work, and we must have the freedom to exercise that independence without threat to lives or our livelihoods.