“Bars in Times of Crisis” : Read CLA Vice President (Australasia) Steven Thiru’s speech at the International Forum of the German Federal Bar, Berlin

Bars in Times of Crisis

Speech at the International Forum of the German Federal Bar, Berlin 

Introduction

Individual lawyers and Bar Associations are called to discharge functions apolitically. Obedience is to the rule of law.
Generally, Bar Associations have two roles. First, it is to represent and protect the interest of its members. Secondly, it is a societal role in respect of public issues where it is to edify the public.
It is this second societal role that can be controversial as the Bar takes public positions on issues that are based on the rule of law, constitutionalism and established legal principles, including on human rights. The Bar is often accused of being politically partisan, particularly when the positions taken are opposed to, or critical of, the government or the state.
In its societal role the Bar must be independent – acting without fear or favour – in upholding, promoting, and preserving the rule of law. An independent Bar is fundamental to a democratic society that is based on the rule of law.
As first responders or the last line of defence of the rule of law, the Bar must never sacrifice its role as a professional organisation that is always guided and bound by the rule of law regardless of circumstances. The Bar must be, and must be seen to be, above the vagaries of politics.
The Bar has an important role in society, and it is with heavy responsibilities. Simply put, the public relies on an independent Bar for what is the rule of law, what should be the rule of law and what should not be the rule of law.

Myanmar

The military coup in Myanmar of February 2021 caused the fall of the democratically elected government. Myanmar is today governed by a military junta.
The military junta has taken repressive steps against the civilian population to quell any form of opposition to it. Over 1850 people have been killed and many have been detained for dissent and other controversial offences.
In the wake of these atrocities and oppression, and in an unprecedented step for an international law organization, LAWASIA lodged a representation with the International Criminal Court under the Statute of Rome contending that the military junta have committed crimes against humanity and that there should be an investigation by the Special Prosecutor.
There is a complete breakdown of the rule of law in Myanmar, and institutions of the state, including the courts, have struggled to preserve the rule of law. It is rule by law today in Myanmar, that is unjust and unfair.
Myanmar has not had an organised Bar Association in recent times. However, by reason of the coup and its adverse impact on the administration of justice, groups of spirited young lawyers have begun representing citizens in their courts. These lawyers, however, lack adequate training and experience.
It is nevertheless laudable that these lawyers, despite their shortcomings, have come forward to discharge functions which are expected of lawyers. This is in the best traditions of the Bar.
In Myanmar today there is a need for capacity building to enable its lawyers to discharge their functions as defenders of the rule of law fully and adequately. The difficulty is that open outside or foreign assistance could lead to sanctions by the military junta.
It is important that the international legal community responds to this need, in a way that will not expose these brave lawyers in Myanmar to harm.

Sri Lanka

Sri Lanka is still reeling from the COVID-19 pandemic, and its economy has gone into freefall. Inflation is reportedly at 70%. The economic hardship experienced by the populace in Sri Lanka is palpable.
The economic problems have been compounded by a political crisis that has seen a change of government and the resignation of the President. There was criticism directed at the President (and the previous government) for rule of law violations, and the new government too is going down the same path. The use of the Prevention of Terrorism Act 1978 recently against members of the public who were protesting the mishandling of the economy, is one example.
In all these travails, the Bar Association of Sri Lanka (BASL) has been steadfast the pursuit of the rule of law. The BASL has indefatigably asserted the fundamental rights of the people as enshrined in the Constitution of Sri Lanka, criticized the abuse of power by the authorities and voiced its concern over, and its abhorrence of, draconian laws aimed at stifling the exercise of constitutional freedoms.
The BASL have received widespread public plaudits for being a shinning example of a professional Bar Association. It has been able to discharge its functions in accordance with its rule of law mandate during times of crisis. It has done so without any partiality or influence. International law organizations such as the Commonwealth Lawyers Association and LAWASIA have expressed admiration and support for the BASL.
The performance of the BASL, certainly since the outbreak of the pandemic, should be recognised and emulated by other Bar Organisations who find themselves similarly circumstanced. Indeed, this is an excellent example of how a Bar Association should function in times of crisis.

Malaysia

The Malaysian Bar is very well known as a strong proponent of the rule of law. It has received international recognition (from the United Nations in 2012 and from the Union Internationale de Advocats (UIA) in 2016) for its role as a defender of the rule of law.
The Bar has faced two major crises in Malaysia since the outbreak of the pandemic. First, the declaration of Emergency in 2021. It is widely believed that emergency powers were invoked for collateral purposes, mainly to keep a weak government in power. The Malaysian Bar commenced legal action to challenge the declaration of emergency. The action is pending in the courts.
The resort to the courts in times of crisis, such as a constitutional crisis, by the Malaysian Bar is not new. There was the challenge on the decision of the Attorney General in 2017 to exonerate the former Prime Minister from allegations of corruption (he was recently convicted of corruption charges and has been imprisoned for 12 years) and there was also the challenge to the constitutionality of the appointment of the Chief Justice and President of the Court of Appeal in 2017 (both subsequently resigned in 2018).
In June 2022, the Malaysian Bar organized a public march by members of the Malaysian Bar to protest attacks on the judiciary. It was called the “Walk for Judicial Independence”. This was in support for the Malaysian judiciary when certain politicians facing criminal charges embarked on a public campaign to vilify members of the judiciary. The Commonwealth Lawyers Association and LAWASIA were observers at the march.
The Malaysian Bar continues to defend the independence of the judiciary, which is an important facet of the rule of law. This was again seen recently in the final appeal in the Federal Court of the corruption case involving the former Prime Minister. The Bar came out strongly in support of the judiciary’s handling of the case and criticized the conduct of the lawyers for the accused for having breached ethical rules. In response, the President of the Malaysian Bar has been threatened with a libel suit.
It is important that the international legal community stand with the Malaysian Bar in its defence of the principles of judicial independence. Any erosion of these principles will have dire consequences beyond the shores of Malaysia if others seek to adopt the same approach to weaken their judiciaries for personal gain.

International Law Associations – What role do they play?

In the face of the many folds challenges faced by Bar Associations (and individual lawyers), it is important for all International Law Associations to re-evaluate their role. For too long, International Law Associations have acted in silos, and disparately. The time has come for International Law Associations to act jointly to uphold the rule of law. There is strength and force in joint actions that will be well received and respected by the international legal community.
If there is a need for a common theme, in the face of the threats to the rule of law in times of crisis, then it should simply be – any attack on the rule of law somewhere, is an attack on the rule of law everywhere.

Steven Thiru

Vice President (Australasia) Commonwealth Lawyers Association/ Vice President, LAWASIA; and 31st President of the Malaysian Bar (2015 – 2017)

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