Three rules of law
How should lawyers behave when legality breaks down? From Turkey, Pakistan and Russia to the UK and the US, here, presented by the IBA’s inaugural Journalism Fellow, are three rules for those in troubled – and more comfortable – places.
There are many ways to wreck the rule of law. Turkey’s never been a model jurisdiction. But, since last year’s coup, it faces new challenges, with thousands of judges – roughly a fifth of them – sacked by the government, and thousands of prosecutors, too. The crackdown’s mainly aimed at the Gülen network, a religious movement once allied with, but now a threat to, President Erdogan. Such is the atmosphere that an accused murderer has even defended himself in an Ankara court by saying his victim was a Gülenist.
What happens when you create thousands of vacancies for judges? Either posts stay empty, so justice can’t function; or they’re filled by inexperienced judges the government thinks it likes. Hundreds of lawyers have also been arrested. Even before the coup, nine were detained when defending 47 of their colleagues facing terrorism charges. How are lawyers meant to work under such stress?
Authoritarianism, terror, corruption
Rule of law is also threatened in Pakistan. Last summer, the president of the Balochistan Bar Association was murdered by gunmen on his way to court. When his colleagues gathered at Quetta Civil Hospital where his body had been taken, a suicide bomber killed around 70 of them.
Why kill lawyers? They’re known in Pakistan for standing up for democracy and the rule of law, and are essential to a functioning state. That’s why they’re a problem for the jihadis who claimed responsibility.
The reputation of lawyers was made in 2007, when they rose up to resist President Musharraf’s sacking and arrest of Chief Justice Chaudhry, and to strike when Musharraf suspended the constitution.
Two thirds of Pakistani court users interviewed by Transparency International said they’d paid a bribe to a judge or court official
The threat’s not just from terrorists, but from the public itself. Asia Bibi, accused of blasphemy and sentenced to death, languishes in prison unable even to appeal. The judge due to hear the appeal adjourned it, then resigned. A politician who campaigned for her pardon has been murdered, and massive public protests held in support of his killer. Shamefully, lawyers in Islamabad showered the murderer with rose petals outside court in a show of support, and went on strike to protest against his execution. Lawyers, then, are part of Pakistan’s solution and its problem.
As are the courts. Two thirds of Pakistani court users interviewed by Transparency International said they’d paid a bribe to a judge or court official.
Justice – Russian style
What can you say about Russia? Being a Russian lawyer can be dangerous, as Karinna Moskalenko found in 2008, when drops of toxic mercury were found in her car. That was shortly before she was due to represent the family of Anna Politkovskaya, the journalist murdered on Vladimir Putin’s birthday in 2006.
Then there’s the absurd conviction of Sergei Magnitsky, the lawyer who alleged corruption among Russian officials and police, whose reward was death in custody after a year without trial. The authorities prosecuted him posthumously, a first in Russian legal history. There was also the decade-long persecution of Mikhail Khodorkovsky, the indictments in whose second trial were ‘long, chaotic, mistake-ridden and self-contradictory’ the International Bar Association’s Human Rights Institute observer said.
If things turn bad in your jurisdiction, as long as law lives elsewhere you’ll find guidance in international standards: of human rights, of the rule of law and of lawyerly conduct
When, in 2012, Pussy Riot activists were charged with ‘hooliganism motivated by religious hatred’, a Russian asked about the fairness of the trial simply laughed. ‘It’s a Russian court,’ he shrugged.
What can lawyers do in these circumstances? If your local judiciary’s dominated by a political group, do you join, to help your clients and your own advancement? Or, do you let your principles harm your clients’ prospects? Do you defend someone and put your own life in danger? What do you do when a client says she’s been asked for a bribe? What if you’re offered a bribe yourself?
The prior question is, perhaps, whether you want a career in law at all. For some, the pressures of working in a dodgy system make a legal life impossible. Others will be driven to law precisely because of the injustices they see – just as radical lawyers are in healthier legal systems. Even under a ‘general and drastic deterioration in legality’, you may want, as Lon Fuller wrote in 1964 in The Morality of Law,‘to stay with the system… as a kind of symbolic act expressing the hope of a better day’.
How, then, to conduct yourself? As a lawyer in a semi-lawless jurisdiction, should you break the law? The answer to this is a definite no. A lawyer’s commitment is to legality. The IBA’s ‘International Principles on Conduct for the Legal Profession’ make this clear. Lawyers must, the commentary says, ‘act... in accordance with the professional rules and applicable laws in their own state... ’.
Conscience may be in tension with law; but for the lawyer, it can’t justify illegality.
Should you resist and protest? If you can, yes: Pakistani lawyers who stood up for their constitution are your example. Should you put yourself on the line to defend clients targeted by the state or by a culture of intolerance? If you can, again, yes. The bravery of those who defend others in Turkey, and of Russians who risk death for others’ rights, cries out for emulation by whoever has moral strength.
Is this asking too much? I doubt I could do these things. Many would prefer to serve more quietly; and it’s not only on the obvious front line that people can contribute.
Three rules should guide every lawyer, though – and I draw them from the IBA International Principles.
First, be independent yourself. This is so central to anything that deserves the name of lawyering that it’s the very first principle. ‘A lawyer shall maintain independence,’ it states. ‘If a lawyer is not guaranteed independence’, the IBA’s explanatory note goes on, ‘and is subject to interference from others, especially those in power, it will be difficult for the lawyer fully to protect clients’.
You can say that again. Independence means not just from government, but from any political movement. It’s no good being in hock to anyone to get into a law school or firm, or on to any bench, whether the Gülen ‘service’, or an oligarch, or anyone. Yes, that means you may not get the promotion, or the training contract. But so what? As the IBA says in its commentary on the Principles, ‘The requirement of independence calls upon the individual practising lawyer… to give priority to the independence of the legal profession over personal aspirations’.
Being a Russian lawyer can be dangerous, as Karinna Moskalenko found in 2008, when drops of toxic mercury were found in her car
If personal aspirations come first, you’ll never really be a lawyer – whatever office you’re allowed to sit in.
The IBA’s second principle is as follows: ‘A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness.’
This is the second rule. Read it as a counsel of perfection, and it’s hard to live up to: few lawyers are saints. But on a humbler level, it’s not hard to know what honesty and integrity require. They mean never asking for bribes, and refusing to give them – which is one of the most effective ways corruption can be fought. More demanding is the requirement to report corruption when you see it, especially when you remember what happened to Sergei Magnitsky. I understand fear of reporting corruption; but if you don’t, you can’t pretend to maintain the highest standards of honesty.
I write this from the relative safety of London. But now, especially, it’s important to think these thoughts in comfortable places. ‘Some degree of “pathology” attends all legal systems,’ Lon Fuller tells us, ‘including the most exemplary’. The United Kingdom has a strong rule of law, but its leaders talk of withdrawing from human rights standards, and this year has seen lawyers and their clients threatened, and judges called ‘enemies of the people’ in pro-government newspapers. These are first-world problems now.
In the United States, the republic of law attorneys have been abruptly ‘ordered to resign’ – that tortured phrase itself concealing truth – amid shrill media calls for a purge of ‘saboteurs’.
If you’re asked to break the law, what should you do? If you’re independent, you’ll arrive at your own view of what’s lawful, not just obey orders. And if you maintain high standards of integrity then, as the IBA Principles say, you mustn’t break the law. That’s why Sally Yates, when acting Attorney General, was right to instruct the Department of Justice not to enforce President Trump’s Executive Order 13769. Unconvinced it was lawful, she could not tell others to enforce it. President Trump sacked her and accused her of ‘betrayal’, but lawyers should salute her.
The third rule isn’t written in the IBA’s Principles, but implied by their existence. Be international in outlook. Take inspiration from those in Russia, Pakistan and Turkey who practise law in hard places. If things turn bad in your jurisdiction, as long as law lives elsewhere, you’ll find guidance in international standards: of human rights, of the rule of law and of lawyerly conduct. Try to live by them and live up to them. The world’s lawyers are watching.
Carl Gardner is the IBA Journalism Fellow for 2017. He is an established writer and international legal commentator, as well as being a lecturer in law and former practising lawyer for the UK Attorney General’s Office. He can be contacted at email@example.com