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Iranian Bar Associations: Struggle for Independence

Conclusion

A survey of the history of the Bar Association and the legal profession in Iran demonstrates that the independence of the profession has always been a sensitive issue. In the period following the emergence of the modern judiciary and prior  to the 1979 Revolution, the general approach of the government and the laws passed in this time resulted in the legal profession gaining independence from the Judiciary and the government. However, in the last three decades since the 1979 Revolution, the trend has been towards the restriction of freedom and independence of lawyers and the Bar Association. As already discussed, the Bar Association’s independence, which was guaranteed by the Law of Independence 1953, was attacked—in practice—in the aftermath of the Revolution and damaged—in law—when the Law of Conditions 1997 was adopted. This trend is still visible at a higher degree, and, apparently, the independence of the Bar is seen by the government as a severe threat to the legitimacy of the IRI.

The IRI Judiciary has always tried to diminish the role of lawyers and their professional associations. In fact, to ensure that lawyers are not able to cause any problem for the State, the Judiciary has made every effort to bring them under its supervision. As mentioned earlier, before the Law of Independence 1953 was passed, George Mouris—then President of the International Bar Association—compared the dependent Bar Association of Iran to a “minor” who needs a “guardian”. This is exactly the IRI Judiciary’s ideal relationship between the Bar Association and the Judiciary. However, the IRI Judiciary has always hidden its constant desire to play the role of guardian for lawyers under titles such as creating more job opportunities and providing easier access to legal advice, which, resulted in establishment of Legal Advisors of the Judiciary (article 187); or, updating the outdated laws, which, is the alleged motivation behind the new Bill of Attorneyship.

The IRI knows, and on quite a number of occasions has painfully experienced, that, independent lawyers, due to their established ethical and professional values and duties, stand against violations of law and human rights.  Lawyers have resisted and, to a degree, survived against the previous attacks to their independence. And some of them have had the courage to challenge the IRI Judiciary while their suppression required the IRI to pay a high price. In fact, so far, the IRI authorities have been unable to easily revoke the licenses of “trouble-making” lawyers and defuse their potential threat. The cases of lawyers such as Nasrin Sotoudeh, Mohammad Ali Dadkhah, Mohammad Seifzadeh, Abdolfattah Soltani, Nasser Zarafshan, Javid Houtan Kian, etc. who were prosecuted and sentenced to imprisonment clearly show that the IRI, despite its numerous attacks on the independence of lawyers, is failed to sit in its ideal place as the guardian of all lawyers. In other words, there are still brave lawyers that enjoy an independent spirit and the Law of Independence prevents the Judiciary to revoke their licenses and disarm them forever. Therefore, the new Bill of Attorneyship is proposed to put an end to this battle.

Although some articles of the new Bill of Attorneyship are analyzed in the proceeding part, it should be observed that it is the essence and primary goal of the Bill that must be taken into account. The new Bill, if adopted, will leave neither independence nor the Bar Association intact, in the end result. It would provide a more arbitrary process of selection of lawyers so as to prevent any liberal individual from entering the legal profession in the first place. Then, like the Sword of Damocles, an unchallengeable and ongoing authority would be given to a Judiciary-appointed Commission to revoke the licenses of any lawyer it considers non-conformable. Therefore, it would be true to say that, the ultimate goal of the new Bill is making the Bar association a subsidiary department of the Judiciary.

The question that remains is whether lawyers that receive their licenses from such organizations that are dependent in total on the Judiciary are capable of standing against violations of human rights? Are they able and willing to defend political opponents or prisoners of conscience? Can they defend the rights of the public against the State, without any fear of losing their job? What safeguards would remain that guarantees the respect of human rights of the accused, especially in so-called “national security” cases? Can the Judiciary claim to uphold fair trial standards in its courts?

The provisions of the proposed Bill of Attorneyship run counter to the UN Basic Principles on the Role of Lawyers and violate the internationally recognized right to fair trial. If approved, the new law will seriously threaten and curtail the activities of human rights defenders and other lawyers in Iran. It is also worth mentioning that a similar attempt by the Nigerian government to take over that country's bar association, including the regulation of its members, was found by the African Commission on Human and Peoples' Rights to be a violation of the basic right of freedom of association.[27] Therefore, human rights activists and organizations, as well as the UN Special mandate holders regarding lawyers and the situation of human rights in Iran are urged to take immediate action to save the oldest body of civil society in Iran.

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Lawyers, Right to counsel