Advocating for the Protection of Lawyers and Judicial Independence

By Mary Margulis-Ohnuma, Policy Counsel 

[Note: This piece was originally printed in the Fall 2017 issue of the 44th Street Notes.] We are posting it today in recognition of the “Day of the Endangered Lawyer.” 

The New York City Bar Association’s engagement in the legal issues of the day is not limited to our proactive involvement at the city and state level, nor the prodigious output of recommendations that our committees have issued since the Trump administration took office.  Our international committees have been engaged on a multitude of fronts, and have lately focused on an issue that is at the heart of our profession and as champions of law and justice: the protection of lawyers and judicial independence around the world. 

Our international committees along with our Task Force on the Independence of Lawyers and Judges (William A. Wilson, III, Chair) and the Cyrus R. Vance Center for International Justice (Alexander Papachristou, Executive Director), have been unrelenting in their advocacy for lawyers and judges threatened by political and social turmoil in their countries. As the United Nations High Commissioner for Human Rights has stated, “lawyers should never have to suffer prosecution or any other kind of sanctions or intimidation for discharging their professional duties.”  However, while lawyers in the U.S. seldom face physical threats and government intimidation in the course of discharging their routine professional obligations, such tactics are, unfortunately, all too common on the international stage. 

Our efforts in Asia include our report calling on the Trump administration to make a commitment to the rule of law and human rights in Asia and, in particular, to condemn attacks and crackdowns on lawyers and activists in China, Malaysia, and Thailand. That report underscored our concerns regarding the abuse of criminal law relating to state security to prosecute activists and lawyers engaged in human rights work, such as using charges of sedition in Malaysia and “subversion of state power” in China.  

The City Bar has spoken out on behalf of Chinese human rights lawyers on numerous occasions, including several times just in the past year. In December 2016, we wrote to the Chinese government expressing our grave concern regarding the disappearance of lawyer Jiang Tianyong, and to urge the government to immediately confirm his location and safety and provide him with access to counsel. And, in July 2017, on the eve of the first international China Human Rights Lawyers Day and the second anniversary of the beginning of President Xi Jinping’s infamous “709 Crackdown,” the City Bar issued a statement condemning the continued harassment, intimidation, detention and prosecution of Chinese human rights lawyers. Describing these ongoing events in China as “nothing less than a ‘war on law,’” the City Bar called on President Xi to cease these practices and release the detained human rights defenders, urged the Trump administration to “use U.S. foreign policy and trade policy to link China’s record on respect for international human rights to international trade, foreign investment, development, and other issues important to China,” and called on the UN Special Rapporteur on the Independence of Judges and Lawyers to make an official country visit to assess the independence of the legal profession in China and make appropriate recommendations. 

We also have advocated for the protection of lawyers and judicial independence in Africa. In July 2017, we wrote in support of the Law Society in Kenya’s Purple Ribbon Campaign commemorating the first anniversary of the abduction, illegal detention, torture, and killing of human rights attorney Willie Kimani, along with his client and their taxi driver. Following up on a letter we sent last year which condemned these killings, we noted that “[b]oth the U.N. Basic Principles on the Role of Lawyers and the African Union’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa recognize that lawyers have the right to practice their profession free from intimidation, harassment, police interference, and brutality,” and that “failing to provide a remedy for the acts of torture committed violates the International Covenant on Civil and Political Rights and Convention against Torture.” We called on the government of Kenya “to act more assertively to end intimidation, harassment, extrajudicial killings, and forced disappearances by the police in Kenya.”

And in September 2017, we wrote another letter to the President of Kenya in which we expressed our “deep concern about recent attacks against the Kenyan judiciary following the landmark Supreme Court decision voiding the August 8 election.” We pledged our support for the Law Society of Kenya and the Magistrate and Judges Association in cautioning against attacks on the Kenyan judiciary, and urged the government to continue to respect the independence of the judiciary as provided by the Constitution of Kenya, the African Charter on Democracy, Elections and Governance, and the United Nations Basic Principles on the Independence of the Judiciary.  

In August 2017, we wrote to leadership in the Democratic Republic of Congo regarding the arrest and detention, without formal charges, of youth activists in Kinshasa—including a lawyer who attempted to visit an activist and provide legal assistance—noting that these actions violated the DRC’s obligations under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Constitution of the DRC, as well as the DRC’s obligations under the UN Basic Principles on the Role of Lawyers. And in September 2017, we issued a statement condemning the attempted murder of the president of the Tanganyika Law Society, which followed the bombing of the law firm of IMMMA Advocates in Dar es Salaam, and urged the government of Tanzania “to thoroughly investigate these incidents, make public their findings, and bring those culpable to justice.” We further wrote that, “[a]bsent such immediate actions, there is a serious threat to the rule of law and the legal profession in Tanzania and the East African Community.” 

Our advocacy on behalf of lawyers and judges also has addressed recent incidents in Europe. In July, we wrote a letter to Prime Minister Theresa May and Secretary of State for Northern Ireland James Brokenshire expressing concern about the recent climate of intimidation against lawyers in Northern Ireland. “Especially given the important commitments to peace in Northern Ireland made by the government of the United Kingdom in recent decades, we are troubled by reports that lawyers are increasingly facing threats and harassment for the legitimate performance of their professional duties.” We further noted, “[i]t is particularly disquieting that government officials appear to have contributed to this climate of intimidation, both by failing to adequately intervene in response to these threats and by engaging in their own attacks on lawyers.” Citing the UN Basic Principles on the Role of Lawyers, we urged government officials to take active steps to ensure that lawyers may perform their professional duties freely and safely.  

And in September, we wrote a letter to the heads of the U.S. House and Senate Foreign Affairs and Foreign Relations Committees conveying concerns about the mixed messages that the United States seems to be sending to the government of Poland as its parliament has been aggressively advancing legislation designed to place Poland’s judiciary under legislative and executive control. We urged Congressional leaders to take renewed action in support of judicial independence in Poland. We also urged the Trump administration to make human rights and rule-of-law values higher priorities in its engagement with the government of Poland and the European Union. 

Amid rising tensions in Asia and Europe, and at a time when longstanding political institutions face a new level of uncertainty, protecting lawyers and the sanctity of the judiciary is of paramount importance. These efforts are essential to safeguarding human rights, human dignity, and our democratic ideals both at home and abroad. In the face of threats to human rights lawyers and activists, judicial independence, and the rule of law, the City Bar will continue to speak out in support of these democratic institutions.