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Defending the rule of law

Opinion

Concern for the rule of law is a unifying force among lawyers across the world, writes legal commentator Morry Bailes.

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I had the very recent privilege of meeting with the president of the International Bar Association, Martin Šolc, a partner of Prague-based firm Kocián Šolc Balaštik. Martin lived in Czechoslovakia during Soviet times, and the ensuing time of dissolution and the creation of the Czech Republic. His perspective makes him ideally suited to the role of leading the largest international association of lawyers.

He was visiting Australia in preparation for the IBA’s annual conference, which for the first time in decades is being held in Australia (in Sydney in October).

The IBA was founded in 1947. It is the global voice of the profession. It concerns itself with defending the rule of law, often in very practical ways, such as the establishment of a viable and working bar in Myanmar, formerly Burma, and training Cuban lawyers, to name a couple of its initiatives. It is concerned about human rights, but also delivers very practical legal training to lawyers, as evidenced by its expansive program on offer in Sydney this October. All Australian lawyers should be there.

Martin’s professional life was indelibly shaped by his experience of communism. Although entreated by the party to join he never did, compromising only by taking an effigy of the then Pope from his car in exchange for a truce of sorts with party representatives. This was possible only because he lived in a small town near the Polish border at the time rather than in Prague.

These experiences are why lawyers vigorously defend our rights to freedom of speech, freedom of religious expression (as in Martin’s case), and the integral defence of democracy and the rule of law – that golden thread which sews our free societies together, so all are accountable to the law and no-one is above it. One of Martin’s stated aims as president is to establish and maintain judicial integrity in countries where judges do not have independence. Why does that matter so much?

A lack of judicial independence leads to a lack of integrity in judicial decisions. That is an anathema to good law, which in turn erodes a community’s ability to conduct commerce in a free and proper way. The result is failing economic prosperity as foreign investment is scared away by unchecked corrupt commercial conduct. Even in Australia, our federal Justice Minister Michael Keenan is talking to Australian businesses about how to improve our federal anti-corruption regime, motivated in part no doubt by criticism from Transparency International (not that this is in any way levelled at our judiciary). It is a timely reminder that we cannot rest on our laurels as the sands move beneath our feet. Many countries with whom we have trade ties fail to adhere to the proper rule of law, meaning our companies are left vulnerable in their dealings with them.

It is no good at all remaining marooned in the 20th century when the public is in the 21st and scratching their collective heads at our oft-arcane practises.

Also high on the president’s agenda is cyber security. This has become a critical area for the legal profession, as lawyers often hold highly-confidential commercial and client information, as well as trust accounts full of clients’ money. I expect there will be many side conversations among the thousands of IBA delegates in Sydney about how to combat this most insidious threat. Of course our profession is hardly an orphan when it comes to the complex issues surrounding private and state-sponsored hacking, but we are particularly vulnerable.

At the top of his list of priorities, Martin cites the future of the legal profession. The future of the legal profession as a service-based industry is in for a shake-up. Already the Australian profession is dividing between the massive multi-national firms and the high street lawyer. It is also an ageing profession, at a time in which it faces the greatest technological upheaval and disruption of its history. How then are we to cope? How are we to continue to serve our sworn oath to uphold the administration of justice when online platforms already offer dumbed-down “justice” and DIY will packs, with a lot more to come?

Challenging us further is the ever-decreasing justice dollar offered by our governments, while we are staggering under successive failures to pass meaningful economic reform, and facing ever-increasing financial demands in areas like health and social security.

The IBA, like the Law Council of Australia, recognises it must help the profession find new ways to stay relevant and meaningful in an age of tectonic movement in the technological plates underpinning business. Much of the basic work lawyers do to assist clients will be wiped from the books as technology offers alternatives. The administration of justice and the defence of the rule of law will always require lawyers but, as Martin understands, we need to re-shape and respond to the forces of disruption, or we will decay, and with us our justice system as we currently recognise it. This includes judges and courts. It is no good at all remaining marooned in the 20th century when the public is in the 21st and scratching their collective heads at our oft-arcane practises.

On top of that is the job of legislating to keep up with driverless cars, robots, and artificial intelligence in its various forms. The future of the law is, perhaps self-evidently, not just about the profession. It is about law itself.

I have not exhausted the president’s list of priorities, which is more substantial than those topics I have touched upon. He is by any measure a realist, and I also perceive a pragmatist, much after my own heart. A rebel with a cause – the cause of justice.

A meeting of five or six thousand lawyers, as is expected by the IBA in Sydney, may seem a droll gathering to some, but it is in such environments that help can be offered and problems solved. Where the true nature of what is unfolding for our future can be understood. Where law is taught and war stories told. Where the business of populating the rule of law across our global society is serious business because it is often lawyers who stand between freedom and tyranny and it is our job to explain that. To explain why the rule of law is all important and underpins, in our case, our prosperity, or in other cases saps the ability of a nation state to thrive and succeed. Where discussion of law reform and global trends allows us to set our vision for how we will propagate good law in our own countries and assist others to do the same.

Meeting Martin, I was reminded that the law in its many and various ways is the cement that holds the masonry of government and society together. To quote Martin Šolc: “I want to emphasise the critical role of lawyers in civil society, in creating the Rule of Law in every aspect of life, big and small. Not only in major human rights work: every transaction we undertake, every dispute we resolve, builds the Rule of Law and binds us together.”

I wish Martin the very best for his two years as President of the IBA. His commitment to justice is obvious, his awareness of our current challenges complete. To all lawyers out there, see you at the IBA, where we can work with our international colleagues on how best to deliver justice in this current century. The future depends on it and on us.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect 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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