Here is an interesting question. Should Julian Assange, the founder and editor-in-chief of Wikileaks, be invited to be a featured speaker (‘A conversation with … Julian Assange’) at the forthcoming annual conference of the International Bar Association (IBA) from 8 to 13 October in Sydney, Australia? He will be appearing by video link.
There are many aspects to this question. There are those which relate to the personal circumstances of Julian Assange himself, holed up in the Ecuadorian Embassy in London for five years now to evade arrest by democratic countries. I am not going to dwell on those.
Rather, I am going to focus on the rule of law. The IBA takes the rule of law seriously, as it should. It has a Rule of Law Forum among its entities. It passed a Rule of Law resolution in 2005, which ended with these ringing words:
‘It [the IBA] also calls upon its members to speak out in support of the Rule of Law within their respective communities.’
That is what I am now doing.
The rule of law has many criteria. Lord Bingham famously set out eight principles, but overall it is a slippery concept, difficult to pin down. I would say that one of its chief aspects is that what is right and wrong under the law is not decided by a single person according to his or her own beliefs, but settled by a system established by a democratic government through its public institutions, and accountable to its citizens. It is almost impossible to envisage a system capable of being described as one governed by the rule of law which does not comply with this basic requirement.
This concept does not quite appear as such in Lord Bingham’s eight principles, but is implied nevertheless in the following ones:
‘Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion;’
‘The law should apply equally to all, except to the extent that objective differences justify differentiation;’
One of the chief characteristics of Wikileaks and its founder is that it – and he – decide what should be published. If they want to publish something, they do so regardless of the law, whether that be the law of ownership, contract, theft, privacy or national security. On the other hand, if they want to keep something secret, such as their sources, they again decide to do so regardless of any law. In other words, Wikileaks and its founder have replaced the rule of law with the rule of Wikileaks and Assange – the crucial difference with the rule of law being that, regarding their own decisions, there is no democracy, no transparency, no accountability, and no regard to the wishes of citizens.
In recent days, the IBA has called on the leaders of Philippines and Myanmar to uphold the rule of law. I completely agree with that. But I also think that, without assuming that the events in Philippines or Myanmar are equivalent to each other, nor that the activities of Wikileaks and Julian Assange are equivalent to either of them, the rule of law is a seamless fabric.
Am I allowed to decide which laws apply to me, and which do not, and act accordingly? Are you? The IBA should not be saying that it is acceptable for some to ignore the rule of law and not others, even if the consequences are different. The whole point of the rule of law is that it applies to everyone in all circumstances.
The IBA undertakes significant work in many areas. The achievements of its Human Rights Institute are well-known. I have been involved over the last year in successful outreach it has undertaken in various African countries to ensure that the profits from the globalisation of legal services are more fairly spread. I am currently working on its core values with experienced IBA members from around the world, to ensure that the latest developments in legal professional privilege, unregulated legal services and other issues are brought into play.
It is for all these reasons that I do not believe that Julian Assange should be invited to be a speaker at the IBA conference. It goes against one of the core values of the IBA, and of its member lawyers and bars, which is that the rule of law is the governing principle of our work.
It might be argued that the IBA is not specifically endorsing Julian Assange’s relationship with the rule of law by inviting him as a featured speaker. But that would be naïve. We should not replace the rule of the law with another, implying that only some are to be held to the rule of law, and not all.