|
|
| V.1.a Application of International Law Principles to Lawyers’ Rights and Duties |
Principles of international law found in the Universal Declaration of Human Rights
(UDHR),[81] the United Nations Basic Principles of the Role of Lawyers (Basic Principles) adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana 27 August to 7 September
l990,[82] and the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms[83] (Declaration of the Right and Responsibility of Individuals), support the proposition that lawyers must not be hampered in their conduct of judicial proceedings by limitations on their speech and must enjoy immunity for statements made during such proceedings.
Article 10 of the UDHR states that "everyone is entitled to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him". Article 11, paragraph 1 of the UDHR further states that "everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense". A fair trial with all the guarantees necessary for a defense includes fearless representation by independent counsel.
The Basic Principles, which set minimum standards to assist States in ensuring the proper role of lawyers, consider the right to freedom of expression in the context of lawyers' representation of clients. The preamble of the Basic Principles states:
Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled requires that all persons have effective access to legal services provided by an independent legal profession.
The preamble also states that the Basic Principles "should be respected and taken into account by Governments within the framework of their national legislation and practice". To ensure an independent bar, the Basic Principles include, in paragraphs 14 and 16, guarantees for functioning lawyers relating to government:
14. Lawyers, in protecting the rights of their clients and in promoting the cause of
justice shall at all times act freely and diligently in accordance with the law and recognized standardsand ethics of the legal
profession.[84]
16. Government shall ensure that lawyers(a) are able to perform all of their professional functions
withoutintimidation, hindrance, harassment or improper interference…and
(c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and
ethics.[85]
Directly relevant to the Karpal Singh prosecution, paragraph 20 of the Basic Principles states that lawyers have immunity for in-court statements:
20. Lawyers shall enjoy civil and penal immunity for relevant statements made ingood faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
The Declaration of the Right and Responsibility of Individuals provides:
1. Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.9(3) To the same end, everyone has the right, individually and in association with other, inter
alia,…[t]o offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.
The right to a fair trial and legal representation under the UDHR arguably includes the right to a lawyer who can represent his or her client fully and fearlessly. Karpal Singh made relevant statements while discharging his duty to his client, and therefore he should enjoy penal immunity pursuant to Paragraph 20 of the Basic Principles. Further, according to the Basic Principles, the Malaysian government must ensure that lawyers are independent and not hindered by or threatened with prosecution for the exercise of their professional duties. In using the Sedition Act to prosecute Karpal Singh, the Malaysian government is violating the Basic Principles and the
UDHR.
Another source of state commitment to protecting the legal profession from government interference and intimidation is the Latimer House Guidelines. The Latimer House Guidelines for the
Commonwealth[86] were developed to renew and enlarge on the commitments made by Commonwealth countries set out in the Harare
Declaration[87] to the rule of law and the attendant safeguards and restrictions. By the Latimer House Guidelines Malaysia and other members of the Commonwealth are committed to ensuring that their national law and procedure reflect the principle:
“An independent, organised legal profession is an essential component in the protection of the rule of law.”[88]
Lawyers liable to criminal prosecutions for sedition for words spoken while representing a client cannot uphold the rule of law. To uphold the rule of law, lawyers must be prepared to advocate both against government arbitrariness and for the protection of the rights of citizens. In order to protect the rights of citizens the legal profession must be entirely separate from government and free from its interference and control,[89] and lawyers must be free to stand between the state and the citizen and to criticize and call into question the actions of the state. |
| |
|
