CLA News / “Without Fear or Favour: The Independence of the Legal Profession at Risk?” by CLA President Steven Thiru

No greater misfortune can befall the administration of justice than an infringement of the independence of the Bar or the failure of courage in our advocates. — Lord Brougham

The independence of the legal profession is indispensable for ensuring that lawyers are able to discharge their duties without fear of any forms of interference, just as the Judiciary must remain unfettered by any undue influence, in order to administer justice with unwavering impartiality.

A robust Bar and a resolute Judiciary are vital pillars for upholding the rule of law, serving as the cornerstone of every citizen’s fundamental right to justice. They are not merely institutions, but the very bedrock upon which the right to access justice is built and safeguarded.

In the absence of an independent Bar that is steadfast and tenacious in its defence of universal and inherent rights, freedoms would be reduced to little more than a fleeting mirage. The significance of an autonomous Bar must not — and cannot — be dismissed or underestimated.

In 2022, the Report of the Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, presented to the United Nations General Assembly and Human Rights Council, highlighted the “global increase in practices that undermine, limit, restrict and hinder the practice of law”, with lawyers being especially vulnerable when their work relates to “the fight against corruption, the defence of human rights, women’s rights, the protection of ethnic, racial, religious or national minorities, indigenous peoples, the LGBTQI+ community, the environment or other issues of public relevance”.

A subsequent report, presented by the current Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, in June 2024, further warned of a growing trend whereby “[i]n recent years, the role of independent justice systems in protecting participatory governance has come under attack from political actors”, in addition to the “existence of physical, legal and digital threats and harassment targeting lawyers . . . who are upholding democratic values and human rights”, as continuing pressing concerns.

Beyond facing abuse by physical means, lawyers, and even those close to them, have been subjected to intimidation, hindrance, harassment, interference with their work, and politically-motivated criminal prosecution. In today’s digital age, violations of their rights have also taken the form of cyber-intimidation, defamation campaigns, and unlawful surveillance.

The prevailing tendency — both of the Executive and in the public mind — to conflate lawyers with the causes they represent becomes even more pronounced when they advocate, in particular, for contentious or unpopular issues. This leads to stigmatisation and persecution, and lawyers may be confronted with disparaging or harmful comments and unfair labelling in the media, including social media networks. Some of these may be instigated by government officials themselves, or otherwise provoked by ideological groups or malcontent individuals, to stoke public hostility.

There is also a growing threat to lawyer-client confidentiality that is made possible by advanced surveillance technologies. Unlawful monitoring of clients’ consultations with their lawyers, use of surveillance software targeting lawyers, search and seizure, interrogation of lawyers as witnesses in their clients’ criminal cases, as well as the barring of access to critical information required for their clients’ defence, are becoming more commonplace.

Ongoing exposure to these intensifying violations — and the risks of such violations — has a compounding effect that creates a repressive atmosphere where lawyers operate under a pervasive fear of retaliation. This gravely undermines the universal right to legal representation, and erodes the independence of the legal profession.

It is very disquieting that these cracks are manifesting even within “First World” nations. In recent weeks, the Executive Orders of 25 February 2025, 6 March 2025 and 14 March 2025 issued by US President Donald Trump targeting three leading US law firms — all of which have represented individuals and causes Trump opposes — have raised alarm bells over the erosion of due process, diminishing of constitutional protections, and the chilling effect of government reprisal on independent legal representation. It is ominous that the second order directs, among others, investigation into “large, influential, or industry leading law firms”, specifically in relation to “racial discrimination”, demonstrating a broader campaign against diversity initiatives. The most recent order goes a step further, as federal agencies have been directed to terminate contracts that involve the targeted law firm. Since then, the US Equal Employment Opportunity Commission has warned 20 major law firms that their diversity, equity, and inclusion policies may be unlawful, and demanded detailed information on the demographics relating to their employment practices.

The American Bar Association (“ABA”) has denounced the escalating actions by the Trump administration aimed at undermining the courts and the legal profession. In its statement of 3 March 2025, the ABA firmly rejected the notion that “the government can punish lawyers who represent certain clients or punish judges who rule certain ways”, and stated unequivocally that “government actions that seek to tip the scales of justice in this manner” are unacceptable. Other US bar associations have voiced their opposition as well. On the international front, the CLA issued a statement on 14 March 2025 wholly supporting the ABA’s statement, and on 18 March 2025 the CLA stood with 17 other global law associations in censuring the Trump administration for its attacks on legal professionals. In its statement of 17 March 2025, the International Bar Association expressed “deep concern over the ongoing erosion of the rule of law in the United States”.

The CLA’s Mandate

Our mandate is to ensure that an independent and efficient legal profession serves the people of the Commonwealth. The CLA actively engages in efforts, including advocacy, to preserve and defend the independence of the Bar and the Judiciary.

Press statements have been issued by CLA condemning the brutal attacks resulting in the deaths of Mozambican lawyer, Bernardo Antonio Dias, who had represented a prominent opposition party politician; and human rights lawyer and pro-democracy activist, Thulani Maseko, of Eswatini, in 2024 and 2023, respectively. We have also protested, amongst others, against:

• the arrest and detainment of Tamieka Clarke of Guyana, following her advice to her client of his right to remain silent;
• the sanctions imposed against four barristers of England and Wales and their immediate families by the People’s Republic of China, relating to a legal opinion provided to their clients on legal issues arising from alleged human violations of the Uyghur population;
• the removal of John Sangwa’s right to practise law in Zambia, and the suspension of Fatma Karume following her submissions in relation to a constitutional challenge to the President’s appointment of the Attorney General of Tanzania, allegedly conducted without due process; and
• the removal of Beatrice Mtetwa’s right to represent her client, following the order by a Magistrate in Zimbabwe for her to stand down from representing the client.

It cannot be overstated that the defence of the legal profession’s independence does not fall solely on the shoulders of the individual lawyer under threat. Rather, it is a collective responsibility — one that must be wholeheartedly embraced by the entire legal community. The preservation of our profession’s autonomy is a shared duty, for its integrity and purpose are closely intertwined with the strength and unity of all who stand within its ranks.

International Norms

We must pay close heed to several international standards designed to protect lawyers and uphold legal independence. These include, amongst others:

• The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba, in 1990. These principles establish international standards to protect lawyers, their independence, and their ability to carry out their professional duties without fear of interference, harassment, or persecution;
• The Principles and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa, established by the African Commission in 2003, address rights, procedures and safeguards during criminal proceedings, including providing guidance on protecting the lawyers’ ability to exercise their profession without interference, respecting client confidentiality, and providing access to information necessary to enable the provision of effective legal assistance;
• The Commonwealth (Latimer House) Principles on the Three Branches of Government, which were agreed and officially published in 2003, and subsequently recognised as “an integral part of the Commonwealth fundamental political values as set out in the Harare Declaration” at the Commonwealth Heads of Government meeting in in November 2005, affirm that an independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary; and
• The United Nations Human Rights Council adopted a Resolution on the Independence and Impartiality of the Judiciary, Jurors and Assessors, and the Independence of Lawyers in 2020, which, upon expressing deep concern “at the significant number of attacks against lawyers and instances of arbitrary or unlawful interference with or restrictions to the free practice of their profession”, called upon States “to ensure that any attacks or interference of any sort against lawyers are promptly, thoroughly and impartially investigated and that perpetrators are held accountable”.

In addition, professional bar associations have adopted similar principles, such as:

• the International Bar Association (“IBA”)’s IBA Standards for the Independence of the Legal Profession, adopted in 1990;
• the Union Internationale des Avocats (“UIA”)’s Turin Principles of Professional Conduct for the Legal Profession in the 21^st Century, adopted in 2002;
• the Council of Bars & Law Societies of Europe (“CCBE”)’s Charter of Core principles of the European Legal Profession, adopted in 2006; and
• the CLA’s Bar Leaders Declaration on Preserving and Strengthening the Independence of the Judiciary and on Ensuring the Independence of the Legal Profession, adopted at the 23^rd Commonwealth Law Conference held in Goa, India in 2023.

The Council of Europe Convention for the Protection of the Profession of Lawyer

The continuing occurrences of harassment, threats, imprisonments, surveillance, enforced disappearance and murders against lawyers prompted the Parliamentary Assembly of the Council of Europe to call, in 2018, upon the Committee of Ministers to draft and adopt a convention on the legal profession, based on the standards set out in the Council of Europe’s Recommendation R(2000)21 on the Freedom of Exercise of the Profession of Lawyer — thereby translating its provisions into a binding instrument, with an effective control mechanism.

The Council of Europe Convention for the Protection of the Profession of Lawyer, the first-ever international treaty aimed at protecting the profession of lawyer, was adopted by the Council of Europe on 12 March 2025. The Convention seeks to:

• strengthen the protection of lawyers and their right to practise freely and independently in order to make sure that everyone’s rights are protected;
• safeguard not only the rights and protection of individual lawyers but also those of professional associations (such as bar associations and law societies);
• guarantee the independence and self-governance of professional associations;
• uphold professional standards of conduct and facilitate access to the profession and ongoing education;
• ensure that professional associations are duly consulted in relation to regulatory and legislative changes pertaining to the exercise and regulation of the profession;
• ensure that admission to the profession, and disciplinary procedures and decisions, remain objective and fair;
• ensure that lawyers can provide, without improper interference, legal advice and representation, access clients (even those in detention) promptly and effectively, obtain necessary case materials from authorities, etc.;
• guarantee the right and duty of lawyers to both communicate confidentially with their clients and prospective clients, and to not disclose confidential information;
• guarantee that lawyers are not identified with their clients or their clients’ cause;
• reinforce lawyers’ and professional associations’ freedom of expression; and
• provide protective measures in situations where lawyers are deprived of their liberty or where they are the subject of a search and seizure.

Bar Leaders’ Summit at the 24th Commonwealth Law Conference in Malta

As we gaze towards the future, we must pause to reflect upon the critical issues that lie before us:

What measures can be implemented within the Commonwealth to fortify the protections afforded to lawyers? What insights can we glean from our counterparts around the world who are grappling with similar challenges? And, which practices or frameworks should we embrace as our mode?

These pivotal questions will be explored at the Bar Leaders Summit (6 April 2025) in the upcoming 24^th Commonwealth Law Conference in Malta, where we aim to foster a consensus and devise effective strategies and suitable approaches, as well as at the plenary session on the third day of the Conference (9 April 2025).

Forceful international protections are crucial for individual lawyers as well as for the wider legal community as a whole. Such safeguards are not only imperative in jurisdictions where lawyers confront systemic threats and obstacles in their professional responsibilities, but also for advancing best practices that brace and elevate the legal profession throughout the Commonwealth. Enhancing these protections will empower local bar associations to defend their independence with unwavering resolve and greater resilience, ensuring that they are able to effectively safeguard human rights within their national legal systems — anchored in the strength of international principles and reinforced by the collective support of the international community.

We must push for concrete protections — fortifying legal frameworks, holding authorities accountable, and ensuring that no lawyer is left to face persecution in isolation.

We echo the firm stance taken by the ABA:

We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession.

We must be zealous in our commitment and efforts to safeguard and uphold these rights. As we do so, I am reminded that “[s]tanding between authority and subject is always uncomfortable, often dangerous[, but] that is what we are trained to do”.[1]

Steven Thiru

President

Commonwealth Lawyers Association

 20th March 2025

Steven Thiru records his appreciation to Boo Sha-Lyn and Chin Oy Sim for their assistance in preparing this article for publication.

[1] Pheroze, Nowrojee (April, 2011). “No Respecters of Persons: Advocates in the Front Line”. The Commonwealth Lawyer. 20(1), 16–20.