A review of the Comprehensive Bill on Legal Profession; From the beginning to the present
The Judiciary Power was tasked with compiling a comprehensive bill on legal profession, in accordance with Article 212 of the Fifth Five Year Development Plan laws, which were ratified by the State Expediency Council, in pursuit of the implementation of Paragraph 13 of the document containing the macro policies of the political system in relation to legal and judicial affairs. In the list of decisions adapted by the State Expediency Council, the said paragraph has been referred to as Paragraph 15 of the macro policies of the political system on judicial security. The said paragraph emphasizes the need for “determining the appropriate Islamic tenets for all judicial affairs, including the duties of the judges, lawyers, experts and law enforcement officials; and the consistent and continual supervision of the Judiciary Power over the correct application of these tenets”.
Of course, the fundamental essence of this policy on the legal profession was not justifiable right from the outset, in both its key aspects, namely first, determining the Islamic tenets applicable to the legal profession, and secondly, the consistent and continual supervision of the Judiciary over proper conduct by lawyers. This is because in the existing body of laws, all the relevant Islamic tenets are clearly spelt out, and at the present too, all these tenets are evidently present in all drafted legal and judicial documents. The process of consistent and continual supervision by the Judiciary over proper conduct in the legal profession is also in force fully at the moment. After all, given that currently, the representatives of the professional associations of lawyers are vetted, and then either approved or rejected, by the Supreme Disciplinary Court of Judges; at a time when an appeal can be lodged at the Supreme Disciplinary Court of Judges against all verdicts and decisions issued by the Disciplinary Court of Lawyers; and given that obtaining the lawyers’ apprenticeship licence is conditional upon receiving a positive report from the security and intelligence organs, then the question is how much more consistent and continual supervision over the proper conduct of the professional lawyers associations remains for the Judiciary pursue?
In any case, the Judiciary, which apparently had been waiting a long time for such a legal justification to break the independence of the Iranian Bar Association, and place defence lawyers under its command and authority, made use of its authorities under Article 212 of the Fifth Five Year Development Plan laws – as ratified by the State Expediency Council – and presented the highly controversial Comprehensive Bill on Legal Profession to the then-government (the 10th Government) for approval, with the clear aim of undermining the independence of the professional associations of lawyers. The said bill had the following fundamental flaws:
1. This historical title of “Bar Association” was changed into the “bar organization”, and this in itself pointed to the will and intent to downgrade the status of a collective from an independent institution to a mere formal organization which operated under the authority of the political system.
2. Provisions are made for the formation of a “non-independent” body called the “supervisory board”, whose members will be appointed by the head of Judiciary. It will supervise and govern all vital affairs of the lawyers’ professional associations – including approving the competence of their ordinary members and or the composition of their leadership boards, endorsing the validity of their election results, suspending or cancelling the practice licences of lawyers (including even the members of the leadership board) and deciding the membership of different commissions and boards. Additionally, the control of all the assets and properties of the lawyers’ associations has also been given to the said supervisory boards, and worse still, there can be no appeal at legal institutions or the Supreme Court of Administrative Justice against the decisions of these boards.
3. The lawyers’ professional licences would require the signatures of the head of the provincial Justice Department, and their swearing-in ceremony too could not go ahead without the presence of that official.
4. According to one of the most dangerous articles of the new bill, the authority to suspend or bar lawyers from practice has been given to the “competent authorities”, whereas – according to the binding bill on the independence of lawyers, the said authority rests only with the “Lawyers’ Disciplinary Court”. However, with the approval of the new provisions, the Revolution and Public Courts would be able to bar lawyers from practicing their profession, and any lawyer whose conduct and approach does not have the full endorsement of the Judiciary, could potentially face such a ban.
Of course, since this bill was compiled secretly and clandestinely, and without the knowledge and agreement of the lawyers’ associations, and as such, it had not taken any of its views into consideration, it naturally prompted strong objections among the community of jurists and lawyers. This was chiefly because the bill violated both the domestic Iranian laws, especially the Constitution, and the international laws and treaties, to which the Islamic Republic of Iran is formally committed. For instance, the international conventions not only emphasize the rights of defendants to have access to legal advice and consultation, but they also stress that such advice has to come from “independent” lawyers. In its preface, the United Nations “Basic Principles on the Role of Lawyers” (1990) clearly emphasizes the right all persons to have effective access to legal services provided by independent professional lawyers”. Article 24 of these principles states: “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, undermining the right to enjoy defence by independent lawyers is itself a breach of the right to be given a “fair hearing” – that is to say a principle which has been emphasized in numerous international documents, including Article 10 of the Universal Declaration of Human Rights, and Article 14 of the International Covenant on Civil and Political Rights. The right to be defended by a lawyer who is independent from the political system is one of the most fundamental instruments and guarantees for ensuring “fair legal hearing”.
In addition while the approval of the said bill would have turned the lawyers associations into a sub-structure of the Judiciary – and as a result, the principle of independent defence in the Iranian legal system would become mere history – such a development led to some international repercussions too. For instance, the head of the human rights organization, IBA [presumably referring to the International Bar Association] announced: “The approval of the bill would mean that the Iranian Bar Association is no longer independent, and there is a danger that it may no longer be included among the recognized international organizations. A few months ago, the IBA revoked the membership of the Syrian Bar Association. This was because the Syrian body was no longer independent, and as such, it did not represent the lawyers of that country. In the same fashion, the Iranian Bar Association is also in danger of exclusion by the relevant international organizations “. Explaining the international consequences of excluding, or suspending the Iranian Bar Association in the event that the above-mentioned bill is approved, he added: “If the bill is passed, the Iranian Bar Association will certainly have only limited influence outside Iran. What this means is that if it seeks to lodge a complaint against someone or an entity, the international institutions are unlikely to take too much attention of the complaint. This is because of the perception that the Iranian entity is not coming to the arena with ‘clean hands’, so to speak, and its “dirty hands” at the outset will reduce the strength of the legal case it is putting forward.”
However, the widespread protests by the lawyers and jurists, and even the International Union of Lawyers, finally proved effective. In other words, although – despite all its shortcomings and flaws – the said bill was still submitted to the then-government by the Judiciary, and it began to be reviewed and debated at the government bills commission, the objections and information campaigns by the jurists and the Iranian Bar Association prompted a decree to stop processing the bill, by the head of the 10th Government [Mahmud Ahmadinezhad] – who at the time was engaged in personal clashes and frictions with the Judiciary Power. The text of the decree was as follows:
“In the Name of God, the Merciful, the Compassionate. Your Excellency Mr Rahimi [the then first vice president]. As I have underlined before, in any fair legal hearing, there should be at least three separate foundations, and the judge, the prosecutor and the defence attorney should each enjoy an independent posture and position. This situation will enhance the likelihood of successfully defending and restoring the people’s rights. Unfortunately, at the present, the judge and the prosecutor are adapting the same posture, and in addition, they are both appointed by the same authority too. This will certainly undermine the prerequisites for the fulfilment of justice and the restoration of the people’s rights. If the defence lawyers too become subject to the same source of authority, or if their conduct is managed and guided [by the same authority] in one way or another, the prerequisites for the restoration of rights and justice will be almost totally removed, and then only the Almighty knows what would befall the nation. Therefore, please remove from the agenda of the government and its relevant commissions, the proposal submitted by the Judiciary Power in order to facilitate its interference in the conduct and affairs of lawyers. We have taken an oath to defend the people’s rights and safeguard the Constitution. The current proposal is a serious infringement of both of these.”
Of course, the action by the head of the 10th Government provoked a strong reaction by the head of Judiciary Power Ayatollah Sadeq Amoli Larijani, who described the decree by the then-president to halt all work on the bill as “childish stubbornness” and declared: “As a judicial bill, the Comprehensive Bill on Legal Profession should go directly to the Majlis without undergoing any changes and amendments by the government.” Of course, there are two fundamental problems in the opinion of the Judiciary chief about the proposal constituting a “judicial bill” and about the government not having the authority to amend and reform the bill’s content and provisions.
First, although Article 212 of the Fifth Five Year Development Plan laws (as a body of law for a specific purpose and specific timeframe) has assigned the task of drafting the Comprehensive Bill on the Legal Profession to the Judiciary Power, this does not mean that the said bill should be included in the category of “judicial bills”. This is because the term “judicial bills” refers to those bills whose central subject matter is judicial, and as such, not every single bill which is drafted by the Judiciary Power can be categorized as a “judicial bill”. After all, it is possible that the Judiciary may put together a bill which does not have a “judicial” subject matter, and then submit it to the government on its way to the Islamic Majlis for its approval. Just the mere fact that the author of the bill is the Judiciary Power does not make it a “judicial bill”. In essence, the term “judicial bill” refers to those bills whose fundamental subject matter is related Chapter 11 of the Constitution. Based on the principles enshrined in that Chapter, and specifically Article 158 of the Constitution, the Judiciary Power does not have any role and mission in relation to the legal profession. Therefore, the subject matter and purpose of the Comprehensive Bill on the Legal Profession is not in any way related to the Judiciary Power’s role and function.
Secondly, if the bills presented by the Judiciary to the government were to be passed on to the Majlis by the Executive Power without any changes and amendment, this should have been predicted in the Constitution, but this is clearly not the case. Although according to Paragraph 2 of Article 156 of the Constitution, the drafting of “judicial bills” is the duty of the head of the Judiciary Power, based on Article 74 of the same laws, the ratification of the bills is the responsibility of the government, and the Constitution states that the members of the cabinet have a collective and shared responsibility towards the content and provisions of the bills they ratify.
In any case, despite the objections of the head of Judiciary, Mahmud Ahmadinezhad, the head of the 10th Government, issued an order to amend and reform the bill that had been submitted to the government, seeking to bring it closer to the international standards vis-à-vis the right to enjoy legal defence. This was done, and the bill was signed by the then-president during the final days of the term of the 10th Government. The final draft was largely acceptable and consistent with the fundamental principles of independence of the lawyers’ associations. Although the bill had been signed, it still did not go to the parliament, and had to wait until the next government began its term.
In the opinion of the lawyers’ associations, the next government (that is the 11th Government, which is currently in power) enjoys some special conditions, because the head of the government, and its legal and parliamentary affairs vice presidents, are lawyers themselves and have professional licences. For this reason, the Iranian Bar Association was confident that either the final draft of the bill would go to the Majlis as it was without any further amendment, or it would be submitted to the parliament after undergoing some more changes in its provisions in order to entrench and emphasize the principles of independence of lawyers and the people’s right to have legal defence and counsel.
The first possibility did not materialize, and the previous bill was returned to the Judiciary, and in its place, another bill was submitted to the government, which was similar to the original one before the amendments by Ahmadinezhad’s government, except it was in fact even stronger and more vigorous in its attempts to negate and diminish the independence of the lawyers’ associations,
Since the review of the bill did not take place under a cloak of secrecy under the 11th Government, the lawyers’ associations began to act, and the government agreed to hear their proposed amendments and take them into consideration. In the end, it was declared that many of the shortcomings of the bill had been resolved and the threats to the independence of the lawyers’ associations had been removed. However, in practice, after its initial approval by the government, once again an atmosphere of secrecy and subterfuge began to surround the process of deliberations about the bill. It was only later that it all became clear why so much secrecy was applied again. After all, the content of the draft which was produced as the final version of the “Comprehensive Bill on the Legal Profession and Consultation” in recent days clearly demonstrated the reasons for so much secrecy. Some of the problems of the final version are as follows (of course the list is not exhaustive in any way):
A) Paragraph 4 of Article 11 of the said bill has barred non-Muslims lawyers, even those who are followers of the religions recognized formally in the Constitution, from membership in the management boards of the lawyers’ associations.
B) Approving the competence of the members of the “Supervisory Board” – which have important authorities based on Article 33 of the bill – has been assigned to a “board made up of the heads of the branches of the Supreme Disciplinary Court for Judges”. This is one of the main problems and challenges that the lawyers associations are facing right now, and not only the bill has failed to address them, but in fact it has just added to its complexity.
C) Based on Paragraph 3 of Article 43, membership in “hostile and antagonistic” political groups will prevent individuals from working as a lawyer, even though these charges against them may not have been proven at judicial organs, and no court has issued a verdict against them in that connection.
D) Article 49 has given the judges the authority to interfere in the affairs of apprentices.
E) Article 54 has stated that to issue a licence for lawyers to practice their profession, the signature of the “relevant justice department” should appear alongside the signature of the president of the province’s lawyers’ association. The requirement for this formality can lead to some licences not being issued at all, or it may at least delay or suspend the process.
F) Article 55 states that “doubts about the competence of a lawyer” will lead to the involvement of the supervisory boards in the affair, and could bring about the suspension of the lawyer in question, and finally the revocation of his licence by the Supreme Disciplinary Court for Judges – without the magistrate courts and the Disciplinary Court of Lawyers playing any part in the process. This is despite the fact that according to the current laws, the Disciplinary Court of Lawyers is the only authority which can bar lawyers from practicing their profession or revoke their licence.
G) Article 56 of the bill has made it mandatory that the head of the province’s justice department, or his legal representative, should be present at the swearing in ceremony of lawyers which precedes the issuance of their licence.
H) In the Note to Article 61 of the above mentioned bill, there is an unprecedented and strange deviation from the norms, namely: “Drafting an attorneyship contract in which the fee agreed is more than 5 times higher than the official tariffs is not allowed, and in general, demanding additional fees for consultation, or travel expenses and anything else which is additional to the terms of the contract, are considered as an offence. In addition to the usual disciplinary punishments… the offenders will also receive punishments for attempting to earn income illegitimately, as stipulated in Article 2 of the laws on severe punishments for the perpetrators of the crimes of bribery, embezzlement and fraud.”
Based on the provisions of the said Note, the legislators have considered interference in private contracts between individuals as a legitimate and permissible course of action.
I) In Note 2 of Article 61, the lawyers are made duty bound to present a copy of their contract with their client to their local court branch, and also a copy to their regional tax department. Failure to do so is also considered as an offence and its punishment is the same as the one described in Note 1 of Article 61, as above!
J) According to Article 101, the Justice Minister has been given the authority to issue decrees for appointment of judges at the Disciplinary Court. Based on Article 102, the appointment of the members of the Disciplinary Appeal Court is conditional upon the agreement of the head of the Judiciary Power. Both of these measures contradict the principle of independence of the lawyers’ associations, given the delay that their implementation can cause in the process for an indefinite period.
K) The bill also makes provisions for the preparation and approval of a number of procedural regulations and codes, including: The procedures for the “supervisory board” (Articles 33 and 37), the procedures concerning cases where there is uncertainty about the competence of a lawyer (Article 55), the procedures governing the disciplinary magistrate courts (Article 105), the procedures for suspension of lawyers (Article 121) and the procedures for the conduct of the Disciplinary Appeal Courts. According to Note A of Article 144, the approval of the said procedural regulations is among the authorities of the head of the Judiciary Power.
It should be emphasized that the above mentioned procedures concern some of the most important affairs of the lawyers’ associations. In addition, based on the new laws governing the activities of the Supreme Court for Administrative Justice, there can be no appeal against the decisions of the head of Judiciary. Of course, non-admissibility of appeals and objections in relation to all issues and affairs is a clear violation and as such is completely unacceptable. However, such a situation is doubly unacceptable in relation to the lawyers’ associations and the pivotal principle of their independence.
What is both regrettable and surprising in the current chapter of the Iranian legal and judicial history is the fact that the current bill, whose foundations, essence and purpose is the blatant violation and negation of the independence of the lawyers’ associations, has actually been prepared for submission to the Judiciary Power by a government which is headed by a professional lawyer [President Hassan Rouhani] and includes at least two other senior members who are also lawyers (that is to say the legal and parliamentary vice presidents).
Mohammad Olyaei Fard
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