The endangering of lawyers in Southeast Asia

Rebecca Root, IBA Southeast Asia Correspondent Monday 15 January 2024

Lawyers in Southeast Asia are increasingly at risk of attack, particularly when advocating for human rights. Global Insight reports on the dangers and how these can be mitigated.

‘I have been exiled out of the country’, says Charles Yeo, a Singaporean lawyer, from his new home in the UK. Last year, the then 32-year-old former chairman of the country’s Reform Party was charged with multiple counts of harassing a police officer and of wounding the religious feelings of Christians. Released on bail and given permission to travel abroad to visit a client, he instead came to the UK and sought political asylum. ‘I cannot go back because I would be arrested if I set foot in Singapore’, he explains.

Yeo believes that these charges and others against him have been fabricated in response to his criticism of the government, political standing and work defending death row inmates. One of the latter was Nagaenthran K Dharmalingam, a Malaysian national diagnosed with mental disabilities who was found guilty of drug possession in Singapore. The case sparked global outrage, with the UN and non-governmental organisation (NGO) Amnesty International, alongside other rights groups, criticising Singapore’s use of capital punishment.

‘The state would frequently vilify persons like me who oppose the state by, for example […] putting out false news headlines’, Yeo says. ‘The state tried to demonise me by arguing that I embezzled people’s money, which was one of the charges. But people know that my family is not poor, you see, so why would I do this?’

A spokesperson for Singapore’s Ministry of Law told Global Insight that Yeo’s claims are ‘baseless and untrue’, explaining that the charges against him stem from social media posts that had ‘the deliberate intention of wounding religious feelings’. The spokesperson said Yeo is welcome to return to Singapore to contest the charges against him. But Yeo doesn’t believe he’ll receive a fair trial in Singapore and instead feels he has been driven from his home because of his work.

Lawyers pay the price

He’s not alone. Lawyers, journalists and human rights defenders – alongside the rule of law itself – are under increasing threat in Southeast Asia, says Benedict Rogers, Senior Analyst for East Asia at human rights non-profit Christian Solidarity Worldwide (CSW). Indeed, the CIVICUS Monitor, which provides real-time data on the state of civil society and civic freedoms globally, has documented cases of judicial harassment, detention, ill treatment, threats and even the killings of lawyers across the region.

This is in line with what the former UN Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán, called – in a 2022 report – a ‘global increase in practices that undermine, limit, restrict and hinder the practice of law’. García-Sayán described how this is ‘especially true for lawyers whose activities are focused on the fight against corruption, the defence of human rights or the protection of groups in vulnerable situations’.

In Southeast Asia, many lawyers involved in such activities are paying the price. They face unique issues that arise out of countries’ different legal regimes, culture, religion, colonial history – or lack thereof – and degree of progress and development, says Lloyd Nicholas Danduan Vergara, SPPI Council Liaison Officer for the IBA War Crimes Committee and Court Attorney VI at the Supreme Court of the Philippines. What’s more, the region is home to a number of authoritarian regimes – such as those in Cambodia, Myanmar and Vietnam – where the state is often the perpetrator of violations against lawyers, says Josef Benedict, a civic space researcher at CIVICUS.

In spring 2023, human rights lawyer M Ravi, who had led Dharmalingam’s defence in Singapore, was suspended for five years after criticising the use of the death penalty by the city-state’s attorney general – a form of punishment that the Office of the UN High Commissioner for Human Rights (OHCHR) advocates against – with a court accusing him of ‘grave and baseless accusations of improper conduct’. Ravi said he had the right to criticise what he saw as ‘unfairness’. Meanwhile in Vietnam, environmental lawyer Dang Dinh Bach is serving a five-year prison sentence for what CIVICUS calls ‘trumped-up tax evasion charges’, after he called for the country to shift away from the use of coal. Vietnam’s government didn’t respond to Global Insight’s request for comment.

‘Some lawyers may receive [a] backlash or experience harassment for advocating causes that are perceived to be contrary to prevailing social or religious views, especially in countries where religious laws form part of the legal system’, explains Vergara. He adds that some lawyers have been killed for defending individuals who are alleged to be engaged in the illegal drug trade, while others have been harassed or hurt for advocating causes that challenge those in power.

Between July 2016 and March 2021, over 60 lawyers, prosecutors and judges were killed in the Philippines, with the majority being defence lawyers working on drugs or human rights cases. ‘I remember an incident when I was still a law student: an [alumnus] of my law school was killed at the door of her house because a supporter of a cult leader that she was prosecuting thought it best to kill her’, Vergara says. The International Day of the Endangered Lawyer, which takes place annually on 24 January, was created in 1990 after two lawyers visited the Philippines and learned of the challenges lawyers were facing.

In Indonesia, the prominent environmental lawyer Golfrid Siregar was killed in 2019. Siregar was involved in a number of controversial cases and had received threats after filing a lawsuit against the construction of a hydropower dam. In Malaysia, the lawyer and human rights defender, Siti Kasim, appears to have been the target of an assassination attempt after a bomb was found under her car.

Vulnerabilities in common

A common theme is that those lawyers targeted work on cases pertaining to human rights, drugs, blasphemy and the death penalty. ‘Amidst deepening autocratisation globally, lawyers increasingly may face threats, arrest, prosecution, imprisonment and even death’, the current UN Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, said in a report published in 2023. ‘This is especially true for lawyers who are active in the defence of human rights, women’s rights, minority groups, refugees and migrants, Indigenous Peoples, the LGBTQI+ community and the environment.’

Hanim Hamzah is a Member of the IBA Law Firm Management Committee Advisory Board and a KPMG Law Asia Pacific leader in Singapore. Given the corporate nature of the area of law she works in, she says that neither she nor her colleagues have been the recipients of any threats, but highlights that the position of lawyers on the front line ‘faced with [pushing for] any change is not easy. Lawyers are in the position of power and influence so use that power and influence to do good’.

To a large extent, risks have always existed but in some places, in line with democratic backsliding, they’ve increased, says Rogers of CSW. This is connected to the diminishing of the rule of law in certain jurisdictions in the region. For example, in the Philippines, under former President Rodrigo Duterte, police were authorised to shoot those suspected of drug use. In Cambodia, the lèse-majesté law was introduced in 2018, making it illegal to criticise the royal government. And in Myanmar, the ousting of the democratically elected government by a brutal military regime in 2021 has substantially undermined the rule of law.

In Indonesia, Shaleh Al Ghifari, an Indonesian-based lawyer focused on supporting vulnerable and marginalised communities, says most lawyers receive threats when they defend cases pertaining to labour unions, the environment and freedom of expression. He shares that he received ‘threats from the police when I insisted on defending my client [who had] protested about the working conditions under the subsidiary of an Indonesian enterprise on oil and gas […] They threatened using violence and finding an article [under the law] to make me a criminal’.

Indonesia’s government didn’t respond to Global Insight’s request for comment.

As of January 2023, 32 lawyers, many of whom had defended anti-military protestors, had been arrested in Myanmar under charges backed by little evidence, according to the Assistance Association for Political Prisoners. A Human Rights Watch report describes how a senior lawyer, Tin Win Aung, was shackled during his imprisonment. ‘Then they would roll a heavy stick across his tibia, then they stand on his legs, so his tibia bones were fractured. They kicked his chest and back’, says the report.

Others who remain free have experienced intimidation and surveillance. ‘In the courtroom, I now have to worry about not getting myself detained rather than speaking the truth. This is especially true when I have to represent political cases’, another lawyer disclosed. ‘The junta can detain me at any time, and they can and will make up any reasons they want.’

As a result, many have gone into hiding or exile, the CSW’s Rogers says. He adds that there’s little information available on the numbers or capabilities of lawyers within the country. Those who remain active must grapple with ‘special courts’, closed trials and limitations on seeing their clients. ‘At every turn, Myanmar’s lawyers have faced systematic, junta-imposed obstacles and restrictions impeding their work’, said Manny Maung, Myanmar Researcher, Asia Division at Human Rights Watch, in a press release. ‘The military authorities should immediately release all those arbitrarily detained and stop harassing lawyers.’

Myanmar’s government didn’t respond to Global Insight’s request for comment.

Depending on the country, the dangers can be further exacerbated for female lawyers, says Tahir Bashir, a legal advisor with the Centre for Legal Aid Assistance and Settlement in Lahore, Pakistan. These dangers manifest, he says, as death threats and sexual harassment, for example, and ‘not just by the opposing party, but also by the surrounding lawyers’.

For Ghifari in Indonesia, the most vulnerable lawyers are those working in remote areas ‘where there’s no press or public eye to watch them’. The problem, he says, is that business in local mines and palm oil plantations is expanding, and accordingly there are more individuals stepping forward in opposition, citing environmental grounds. The number of cases concerning such conflicts is, therefore, increasing.

The lack of a regional human rights mechanism to counter harmful behaviour –as there is in Africa, Europe or the Middle East through bodies such as the European Court of Human Rights or the Arab Human Rights Committee – means lawyers struggle to find support. Benedict explains, meaning ‘Southeast Asia is an extremely dangerous place to be a human rights lawyer’. Vergara adds that, ‘though the ASEAN [Association of Southeast Asian Nations] is a legal entity, the practice of law is still regulated by the respective frameworks of each ASEAN country’.

Exodus of the lawyers

For those who weren’t expecting their profession to mean a lifetime of having to look over their shoulder, of having to flee their home country or attempting to evade the law themselves, working as a lawyer in Southeast Asia is becoming less appealing. In Myanmar and Hong Kong in particular, the threats are leading to professionals leaving the space, Rogers says. In Singapore, the city-state’s Law Society reported that 30 per cent more lawyers of all ages left the profession in 2021 versus 2020.

Of those who choose to remain, in the interest of personal safety and workload they may opt to avoid the more sensitive cases. In Singapore, Jaipreet Kaur, South East Asia Caseworker at legal action NGO Reprieve, says it’s harder for people to find legal representation in capital punishment cases and in those where an execution has already been listed because of the challenges a lawyer will face in submitting any paperwork, and as a result of the personal harassment they’ll have to endure.

‘When [Nagaenthran Dharmalingam’s] case was scheduled, there was more than one occasion where courts set stringent filing deadlines, such that there wasn’t enough time for lawyers to prepare submissions property’, says Kaur. ‘Once the lawyer files or assists the person facing execution to file an application in court to stay the execution or to, in any way, oppose or delay that execution, the courts react in an extremely hostile manner and set impossible-to-meet filing deadlines.’

The spokesperson from Singapore’s Ministry of Law denied that the government acts in this way in capital punishment cases and said ‘there are many lawyers in Singapore who have acted for accused persons facing the death penalty; they have not absconded from jurisdiction, nor have they faced false charges, threats or harassment’.

That there are fewer lawyers willing to take on certain cases across Southeast Asia overall has an impact on what legal representation those accused can access. ‘It often means that there are very few lawyers […] available to provide legal support to individuals, activists and communities in seeking access to justice’, says Benedict of CIVICUS.

The Universal Declaration of Human Rights states that everyone has the right to a fair and public hearing and that they should be granted ‘all the guarantees necessary for the defence’. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, meanwhile, entitles individuals to legal counsel and with the ability to communicate with their representatives. The OHCHR states that governments must ensure ‘effective and equal access to lawyers’.

A lack of access to legal support undermines the rule of law, therefore. ‘Lawyers play a fundamental role in upholding the rule of law and [the] separation of powers to ensure that laws are applied equally and fairly to everyone, and that no one is above the law’, says Debra Long, an international policy manager specialising in human rights at The Law Society of England and Wales. If lawyers are persecuted when carrying out their professional duties, this exposes individuals to unfair trials, weakens public trust in the judicial system and undermines a range of inter-related rights for persons arrested or detained, she adds. ‘It also leaves persons detained or arrested vulnerable to torture or other forms of cruel, inhuman or degrading treatment or punishment.’

In the Philippines during President Duterte’s rule from 2016 to 2022, Amnesty International declared that the killings of lawyers and judges put the entire justice system ‘in deadly danger’. For Benedict, this ‘sends a chilling message that the judicial system will not provide any protection for those who choose to speak up’. The Philippines government didn’t provide comment in response to a request from Global Insight.

Safety first

Benedict believes it’s up to leaders in Southeast Asia to protect lawyers and ensure a legal framework that offers them a remedy for the violations they may face. ‘States must also embed United Nations standards on the role of lawyers and the independence of the judiciary at the national level’, he says.

For Vergara, implementing government frameworks that would enable lawyers to access information, request documents and deal with the bureaucratic processes of government agencies with a degree of protection, or even anonymity, when initially building a case against or involving people in power would be helpful. ‘Such protocol could also hold government agents accountable for refusing to provide the requested assistance without justifiable reason’, he says.

Diplomatic missions in the country could then raise concerns and use the UN Human Rights Council or the Special Rapporteur on the independence of judges and lawyers to highlight where there have been violations against lawyers, says Benedict. For Rogers of CSW, in some countries, such as Myanmar, there’s already a significant amount of international pressure and the military is not persuaded by it. ‘But in other places, keeping a spotlight on the issue and raising it with governments is important’, he says.

National bar associations are also involved in this area. In the Philippines, the Integrated Bar of the Philippines and the National Union of People’s Lawyers has repeatedly condemned attacks on the country’s lawyers. Meanwhile, the Law Society of England and Wales has intervened in cases concerning lawyers in Malaysia, Myanmar and the Philippines. Vergara suggests that bar associations might conduct information drives about the role of lawyers and issue statements of support for counsels of opposing parties. ‘We cannot control the behaviour of private individuals, but some people do think that lawyers, who are merely doing their mandates, are perceived as the enemy’, he says. Meanwhile, Ghifari highlights that collaboration with local bar associations is key to providing more security and better infrastructure, as well as rapid response mechanisms when a lawyer is threatened.

Benedict says that human rights lawyers, especially those working in remote areas, should receive regular security training on how to deal with threats and risks. ‘Funds should also be made available for the temporary evacuation of a lawyer from the region or country if the risks are extremely serious and not able to be mitigated’, he says. At the same time, security in buildings where the administration of justice is conducted should also be enhanced, Vergara says, noting that ‘there have been incidents where lawyers or the accused have been shot in parking lots or even inside courtrooms’.

Lawyers for Lawyers, an independent and non-political network, works to defend legal practitioners when their right to practise their profession is under threat. The Foundation for the Endangered Lawyer also seeks to support lawyers by liaising with local organisations, petitioning governments and coordinating with affected families.

Rebecca Root is a freelance journalist based in Bangkok, covering humanitarian issues. She can be contacted at rebeccaroot1@gmail.com