In defense of “independent legal practice” in Iran

February 25, 2013

7 minutes read

A statement from a group of Iranian lawyers

The Iranian Bar Association has experienced many ups and downs since its formation. Its achievement of full independence in 1953—which was made possible through the efforts of lawyers and the then directors of the Bar and by the special consideration of Dr. Mosadegh, on the one hand, and the role of lawyers in defending political prisoners and prisoners of conscience and defending the public’s rights, on the other hand—marked bright and glorious days for the Bar.

The Bar, however, particularly after the establishment of the Islamic Republic of Iran (IRI), has experienced many dark and bitter days too. The so-called purges and purifications during the first decade after the 1979 Revolution, which resulted in the revocation of licenses of many lawyers due to false and unfounded charges, and the arrest and long imprisonment of some of the directors of the Bar, the appointment of a non-elected director for the Bar by the IRI Judiciary, cancellation of the election of the Board of Directors for nearly eighteen years, widespread disqualification of the candidates in the last elections, establishment of a parallel and dependent body of “Center of Legal Advisors of the Judiciary” called article 187, are just some examples of the oppression imposed on lawyers, the legal practice and an accused’s right to a defense in Iran. Nevertheless, what has always made lawyers proud is the fact that none of these events has been able to divest the Bar Association from its de jure independence and that lawyers have safeguarded this precious legacy for more than sixty years.

Now, the core of power in Iran, and, at its top, the IRI Judiciary, which has never tolerated an independent Bar Association and has always pursued increasing restrictions on and the elimination of independent lawyers, has come up with a new plot. The new Bill of “Formal Attorneyship”, which is proposed by the Judiciary and is being examined by the Commission of Government Bills, can be regarded as the most dangerous attack and a coup de grace to legal practice in Iran. The Bill will take the legal practice in Iran back to its status a century ago and will leave neither independence nor the Bar Association. Without an independent legal practice, all Iranian citizens will be deprived of the right to fair trial and one of the main safeguards of public human rights in judicial bodies will be totally wiped out.

The Bill of Attorneyship can be examined and criticized in different respects; but, the most controversial changes, which violate the independence of the Bar and have been objected to by Iranian lawyers and attorneys, including the undersigned, are as follows:

The long-standing and historic title of the “Bar Association” will be replaced with the “Organization of Attorneys” which reflects the determination of the authorities to downgrade the position of the Bar from an independent body to a subordinate governmental organization.
It has prescribed a dependent body called the “Supervision Commission”, whose members would be appointed by the Head of the Judiciary. Such Commission will be empowered to supervise all crucial affairs of the Bar and attorneys, including the competence of the attorneys and the election of the Board of Directors, confirmation of the elections, suspension and revocation of the licenses of all attorneys, including even the directors of the Bar, appointment of the members of the Examining Committees, among other tasks (arts. 25-30).
Ownership of the Bar Association’s properties and assets will be conveyed to the said Supervision Commission (art. 122).
The decisions made by the abovementioned Commission in many cases cannot be challenged in judicial and administrative bodies and shall be deemed final (art 123).
While, currently, the Attorneys’ Licenses are issued by the President of the Bar Association, under the new Bill Attorney’s Licenses shall be issued with the signature of the Chairperson of the Organization and the Chief Director of the Justice Administration of the Province (art. 42). Similarly, the procedure of taking the professional oath cannot be carried out without the presence of the Chief Director of the Justice Administration, and there is no consequence or complaint procedure for his refusal to attend.
According to article 48 of the new Bill, which must be regarded as one of its most dangerous articles, “competent bodies” are empowered to suspend or bar attorneys from practicing law. Currently, according to the Law of Independence of Bar Associations, this is the exclusive role of the Disciplinary Court for Attorneys. If this article is adopted, General and Revolutionary Courts will be able to directly suspend and disbar lawyers. Therefore, any lawyer who acts against the desires of the Judiciary may easily be barred from practicing law.
Finally, the new Bill is prepared without the knowledge or agreement of the Bar Associations and the Bar’s opinions have been disregarded. It is said that it is like a new outfit tailored for the Bar in total disregard of its opinions and they have decided to force the Bar to wear it.

In addition to these shortcomings, the new Bill also runs counter to international instruments and the IRI’s obligations under international law. According to international standards, not only is an individual guaranteed the right to counsel and a defense, but those services should be provided through independent lawyers. The preamble of the UN Basic Principles on the Role of Lawyers (1990) stresses the necessity of “effective access to legal services provided by an independent legal profession”. Article 24 of the Principles stipulates that:

“Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”

In addition, the contravention of the right to defense and the prevention of access to independent lawyers will lead to violation of the right to “fair trial” which is stipulated in numerous international instruments including in article 10 of the Universal Declaration of Human Rights and article 14 of the International Covenant on Civil and Political Rights. Again, one of the obvious means and safeguards to guarantee the fair trial is the right to access to defense lawyers who shall defend the accused and modify the scale in their favor.

The new Bill is making the Bar association a subsidiary department of the Judiciary and the independence of the legal practice in Iran’s legal system will be wiped out. As a result, lawyers that view their professional lives as controlled by such organizations will not be capable of effectively defending their clients’ rights against the attacks of the State and its actors. Therefore, they will be forced to become silent and collaborate in theatrical trials of political opponents. The new organization, then, will not be able and willing to defend its members, but, instead, will be responsible for suppressing the attorneys that stand against the violation of the rights of the public.

Therefore, although we believe that the current situation is far from ideal in respect to the public’s right to access to justice in Iran, we, the undersigned attorneys, are convinced that the structure and content of the Bill is so authoritative that it will raise the judicial power only on one side of the scales of justice. This will violate all norms and standards of judicial justice required for guaranteeing the public’s rights. Moreover, we believe that the essence of the Bill is designed with the ultimate goal to wipe out the independence of the Bar and to subjugate attorneys. Thus, amendment of one or more articles of the Bill will not change its essence: which is thoroughly against the honor code for attorneys and violates the right to defense. The entity proposed by the Bill and its ultimate goal runs counter to the independence of the legal practice and should be completely cancelled.

Therefore, we the undersigned express our deep concern over the method of preparation, structure, and the framework set up in the Bill and its articles; and, we warn about its fundamental violation of the right to a defense and fair trial in Iran. We believe the IRI Judiciary should withdraw the Bill as soon as possible and respect the international standards regarding independence of the Bar and safeguarding the right to defense and guaranteeing fair trial; accordingly, the IRI government should observe its international obligations and refrain from the confirmation and submission of the Bill to the Parliament due to the Bill’s incompatibility with the public’s fundamental rights. We also urge that in the instance that members of Parliament receive the Bill, that they reject it and do not allow such a disgrace to be added to their legislative records.

We also urge the directors and presidents of the Bar Associations and the Union of the Bar Associations of Iran to safeguard the dignity and position of the Bar by making every effort to prevent the Bill from being adopted and by informing their members and the public about the dangerous consequences of the Bill.

We also urge our colleagues in Iran, as well as law professors and honorable judges to take the importance of the issue into consideration and oppose the Bill through legal and civil means.

We urge the International Bar Association (IBA), Bar Associations in other countries, lawyers’ organizations, and our colleagues around the world to take action in support of their Iranian colleagues and the independence of the legal practice in Iran according to international standards.

Finally, we urge the United Nations and the international human rights community to remind the IRI of its international obligations regarding the independence of lawyers, the right to defense, and fair trial; and warn the IRI about the consequences of the passage of the Bill and its violation of international norms and standards.

Signatories:

Mohammad Olyaeifard

Maryam Baabaaei

Maliheh Behboudi

Mahnaz Paraakand

Giti Pourfaazel

Reza Tavakoli

Mehri Jafari

Kobra Jafari Harandi

Ali Akbar Hosseinzadeh

Mohammad Reza Khoubruye Paak

Maliheh Dadkhah