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How lawyers defend our way of life


The rule of law is what stands between us and a descent into economic and social chaos, and lawyers are its keepers, writes legal commentator Morry Bailes.

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When Bali 9 drug smugglers Andrew Chan and Myuran Sukumaran were executed by Indonesian firing squad on April 29, 2015, it revealed Australia’s strong opposition to the death penalty. I am convinced there remains only a handful of people in this country that believe in the validity of the death penalty, and that the overwhelming majority are very much opposed to it. That it took the deaths of Chan and Sukumaran to underscore that sentiment is just one aspect of the tragedy of their executions.

In the thick of that matter, acting for the deceased, was Julian McMahon, a Victorian criminal lawyer. Annually, the Law Council of Australia awards its President’s Medal to a lawyer who is “an outstanding example to the Australian legal profession” and who has “brought credit to the profession through a commitment to the law which has been both personal and professional”. This year Julian McMahon was the recipient. There is a strong sense among lawyers that McMahon’s award was both very welcome as well as timely, with the approaching 50th anniversary next February of the last person executed in Australia, Ronald Ryan.

McMahon’s award was not only in recognition not only of his involvement in the Bali cases: he also represented Van Tuong Nguyen in Singapore and George Forbes in the Sudan.

In his acceptance speech he did not dwell on any remaining debate about the use of the death penalty in this country, because that is settled. Rather, he reflected on the plight of those lawyers representing accused people who are charged with crimes in foreign jurisdictions where the rule of law is less clear than in Australia. McMahon worked largely pro bono for Chan and Sukumaran, with all of the personal cost that accompanies that, without taking any credit for his own sacrifice. He instead took the opportunity to shine the light on the challenges faced by other lawyers who are daily engaged in the defence of the rule of law.

Criminal defence lawyers are, from time to time, wrongly vilified for representing accused people, particularly when the community finds the alleged crime disturbing. That said, lawyers accept that in Australia we remain safe: safe from violence and intimidation; safe from government reach and the influence of the state. It may even occur to some, who are prepared to think it through, that merely because we are doing our job in representing an accused person, it does not mean we have sympathy with the crime alleged.

The rule of law is the “golden thread” that stitches our wonderful and prosperous country together. Those nation states that are losing it, such as Malaysia, will ultimately fail.

Unfortunately, that is simply not true in many of our neighbouring countries. In Malaysia, where there is a breakdown in the rule of law, the Malaysian Bar Council fears for its existence. Their members, and others, have been tear-gassed at rallies in support of the independence of their profession and the judiciary. The Law Council has heard first hand from the Bar Council’s brave president, Steven Thiru, of the unprecedented attack on the legal profession in what was a democratic country respectful of the rule of law. All of this has occurred under the government of Prime Minister Najib Rasak, who stands accused of corruption. One is left to question why he would be so troubled by an independent judiciary.

In Pakistan, lawyers have been directly targeted in and around the courts by terrorists who have used bombs to kill scores of lawyers on more than one occasion. We have seen images of bloodied and dead lawyers, slain and maimed because they stand between radicalism and justice dispensed by the courts.

In China, Xia Lin, who has represented the dissident artist Ai Weiwei and free speech champion Pu Zhiqiang, was recently sentenced to 12 years jail for alleged fraud. His real “crime” was representing people whose views diverge with those of the one-party state. Hundreds of other lawyers in China have disappeared and turned up in custody for daring to represent those who take a position against a totalitarian communist government bent on restricting individual rights and freedoms and the rule of law.

It is stories such as these about courageous lawyers that Julian McMahon no doubt had in mind as he accepted the President’s Medal, reminding us not to be complacent and highlighting the vital and integral role lawyers assume in the fight against state corruption and incursions into individual rights.

It is easy in a country that respects the rule of law to forget why the courts must be independent of the parliament. It is this independence that allows judges to provide complete and utterly unbiased decision-making.

Our only error now can be to forget: forget what happens when the right of lawyers to represent accused people is questioned, as is currently happening in a concerted and unhealthy debate about the role of legal aid in our society; forget why it is imperative to preserve the independence of the judiciary at all costs, which includes providing proper and adequate funding in order for judges to effectively carry out their role – something that is gradually crumbling in our state and others; or forget, as we rightfully encourage trade and commerce with our international neighbours, that many persistently and flagrantly engage in concerted abuses of human rights and the erosion of the rule of law. Trade and human rights are not two subjects when they involve the same people.

As to McMahon, one can only admire his fortitude and applaud his courage and dedication. Humbly he does not seek any of these accolades but rather wishes us to concentrate on the plight of others. I have no doubt he, like all of our profession, cares deeply for the individual lawyers imprisoned, detained, injured and even killed because they believe in the role of independent justice and the right to freedom of speech in our societies. However, as these lawyers place their life and liberty in danger, we must remind ourselves of why they do it: the cause of justice is greater than the individual.

Closer to home, we have an obligation not only to mark the death of the last person executed in Australia with a reminder to our neighbours that we do not approve of the use of the death penalty, indeed that we abhor it, but also to react against any fashionable trend that suggests upholding and defending a fair, just and equitable society is negotiable on the whim of public opinion.

The rule of law is the “golden thread” that stitches our wonderful and prosperous country together. Those nation states that are losing it, such as Malaysia, will ultimately fail. Corruption may favour the individual, but it is a cancer on broader economic success. Take a look at the disaster of so many of our corrupt Pacific island neighbours. For citizens in nations who have never enjoyed the rule of law, life is a constancy of fear, repression and an inability to even speak without adverse consequence.

Standing between the unimaginable circumstance of being unable to criticise a government or being prevented from associating with whom you wish, and enjoying the right to life, and fulfilling the ambitions and desires of our remarkable human existence is one simple thing – the law.

Those who defend it are our champions. They are lawyers. In the case of lawyers who practise in countries hostile to the rule of law, they are astonishingly brave lawyers. They are people such as Julian McMahon.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.


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