In the manual entitled HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE prepared by the UN Commissioner on Human Rights in cooperation with ther International Bar Association, the matter of INDEPENDENCE AND IMPARTIALITY OF JUDGES, PROSECUTORS and LAWYERS in the administration of the human rights justice system in the world was discussed, the salient parts of which I wish to summarize in this paper for legal research purposes of the readers, to wit:
The relevant Universal Instruments on human rights are as follows:
_ The International Covenant on Civil and Political Rights, 1966
_ Basic Principles on the Independence of the Judiciary, 1985
_ Guidelines on the Role of Prosecutors, 1990
_ Basic Principles on the Role of Lawyers, 1990 Regional Instruments
_ The African Charter on Human and Peoples’ Rights, 1981
_ The American Convention on Human Rights, 1969
_ The European Convention on Human Rights, 1950
_ Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the independence, efficiency and role of judges.
In the modern constitutional State, the principle of an independent Judiciary has its origin in the theory of separation of powers, whereby the Executive, Legislature and Judiciary form three separate branches of government, which, in particular, constitute a system of mutual checks and balances aimed at preventing abuses of power to the detriment of a free society.
This independence means that both the Judiciary as an institution and also the individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by the Executive, the Legislature or any other inappropriate sources.
Only an independent Judiciary is able to render justice impartially on the basis of law, thereby also protecting the human rights and fundamental freedoms of the individual.
For this essential task to be fulfilled efficiently, the public must have full confidence in the ability of the Judiciary to carry out its functions in this independent and impartial manner. Whenever this confidence begins to be eroded, neither the Judiciary as an institution nor individual judges will be able fully to perform this important task, or at least will not easily be seen to do so.
A legal system based on respect for the rule of law also needs strong, independent and impartial prosecutors willing resolutely to investigate and prosecute suspected crimes committed against human beings even if these crimes have been committed by persons acting in an official capacity.
Unless judges and prosecutors play their respective key roles to the full in maintaining justice in society, there is a serious risk that a culture of impunity will take root, thereby widening the gap between the population in general and the authorities.
If people encounter problems in securing justice for themselves, they may be driven to take the law into their own hands, resulting in a further deterioration in the administration of justice and, possibly, new outbreaks of violence.
Lastly, this legal system would not be complete without independent lawyers who are able to pursue their work freely and without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights and fundamental freedoms at all times, a role which, together with that played by independent and impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and that individual rights are protected effectively.
In spite of the need for judges, prosecutors and lawyers to exercise their professional responsibilities in true independence, experience shows that they are often subjected to pressures of various kinds aimed at compromising their ability to do so.
For instance, although the way in which judges are appointed varies from country to country, there may be a danger to their independence where they are appointed exclusively by the Executive or Legislature, or even where they are elected.
A further threat to their independence is posed by lack of security of tenure, as arises in countries where judges are generally employed on temporary contracts. Such insecurity may make judges more susceptible to inappropriate outside pressure.
Inadequate remuneration may also constitute a threat to the independence of judges in that it may for instance make them more amenable to corruption.
Furthermore, the independence of judges, prosecutors and lawyers is frequently threatened by the refusal of the Executive to allow them to organize freely in professional associations.
For instance, where the Executive issues licences to lawyers and obliges them to exercise their profession as members of State-run professional organizations, they cannot carry out their work independently.
However, judges, prosecutors and lawyers are frequently also subjected to other kinds of persecution aimed at intimidating the legal professions, which may take the forms of arbitrary detentions, direct threats to their lives, killings and disappearances, which are not only perpetrated by State authorities, but are frequently also carried out by private individuals, either independently or in connivance with bodies such as criminal organizations and drugs cartels.
The International Covenant on Civil and Political Rights states in its article 14(1) that “all persons shall be equal before the courts and tribunals” and further, that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
The Human Rights Committee has unambiguously held that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”. It is thus a right that is applicable in all circumstances and to all courts, whether ordinary or special.
Article 7(1) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right that comprises, in particular, “(b) the right to be presumed innocent until proved guilty by a competent court or tribunal”, as well as “(d) the right to be tried within a reasonable time by an impartial court or tribunal” (emphasis added). According to article 26 of the said Charter, the States parties “shall have the duty to guarantee the independence of the Courts”. It is the view of the African Commission on Human and Peoples’ Rights that article 7 “should be considered non-derogable” since it provides “minimum protection to citizens”.
Article 8(1) of the American Convention on Human Rights provides that “every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.
Article 6(1) of the European Convention on Human Rights specifies that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” (emphasis added).
Although some countries may not yet have ratified or acceded to any of these human rights treaties, they are still bound by customary rules of international law, as well as by general principles of law, of which the principle of an independent and impartial judiciary is generally considered to form part.
They are thus also bound by the fundamental principles laid down in the Universal Declaration of Human Rights, which provides in its article 10 that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
In 1985, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary, which were subsequently unanimously endorsed by the General Assembly.
The notion of institutional independence means that the Judiciary has to be independent of the other branches of government, namely the Executive and Parliament.
According to Principle 1 of the Basic Principles on the Independence of the Judiciary: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
Furthermore, according to Principle 7 of the Basic Principles, “It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”
In order to secure true independence of the Judiciary from the other two branches of government, it is necessary for this independence to be guaranteed, preferably by the Constitution; or, failing this, by other legal provisions.
The Judiciary must be able to handle its own administration and matters that concern its operation in general. This includes “the assignment of cases to judges within the court to which they belong”, a matter which, as stated in Principle 14 of the Basic Principles, “is an internal matter of judicial administration”.
As supported by Principle 7 of the Basic Principles, the Judiciary must further be granted sufficient funds to properly perform its functions. Without adequate funds, the Judiciary will not only be unable to perform its functions efficiently, but may also become vulnarable to undue outside pressures and corruption.
Moreover, there must logically be some kind of judicial involvement in the preparation of court budgets.
However, when it comes to administrative and financial issues, independence may not always be total, given that the three branches of government, although in principle independent of each other, are also by nature in some respects dependent on each other, for instance with respect to the appropriation of resources.
While this inherent tension is probably inevitable in a system based on the separation of powers, it is essential that in situations where, for instance, Parliament controls the budget of the Judiciary, this power is not used to undermine the efficient working of the latter.
Next, as follows from Principle 1 of the Basic Principles, the other branches of government, including “other institutions”, have the duty “to respect and observe the independence of the judiciary”.
This means, more importantly, that the Executive, the Legislature, as well as other authorities, such as the police, prison, social and educational authorities, must respect and abide by the judgements and decisions of the Judiciary, even when they do not agree with them.
Such respect for the judicial authority is indispensable for the maintenance of the rule of law, including respect for human rights standards, and all branches of Government and all State institutions have a duty to prevent any erosion of this independent decision-making authority of the Judiciary.
The condition of the Judiciary’s independence as to decision-making is further supported by Principle 4 of the Basic Principles, according to which: “There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.”
It is not clear whether executive amnesties and pardons would be contrary to Principle 4, but Governments must in any event always exercise considerable care in resorting to such measures, so that any measures of clemency do not subvert the independent decision-making power of the Judiciary, thereby undermining the rule of law and true respect for human rights standards.
According to Principle 3 of the Basic Principles, the independent decision-making power of the Judiciary also comprises “jurisdiction over all issues of a judicial nature and ... exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law”.
It is not only the Judiciary per se, as a branch of government, that must be independent of the Executive and Parliament; the individual judges, too, have a right to enjoy independence in carrying out their professional duties. This independence does not mean, of course, that the judges can decide cases on the basis of their own whims or preferences: it means, as will be shown below, that they have both a right and a duty to decide the cases before them according to the law, free from fear of personal criticism or reprisals of any kind, even in situations where they are obliged to render judgements in difficult and sensitive cases.
Unfortunately, judges are not always allowed to carry out their work in this spirit of true independence, but in many countries have to suffer undue pressure ranging from inappropriate personal criticism and transfer or dismissal to violent and even fatal attacks on their person.
International law does not provide any details as to how judges should be appointed, and the Basic Principles are neutral with regard to the appointment or election of judges.
However, according to Principle 10 of the Basic Principles: “Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”
This principle means that, irrespective of the method of selection of judges, candidates’ professional qualifications and their personal integrity must constitute the sole criteria for selection.
Consequently, judges cannot lawfully be appointed or elected because of the political views they hold or because, for instance, they profess certain religious beliefs. Such appointments would seriously undermine the independence both of the individual judge and of the Judiciary as such, thereby also undermining public confidence in the administration of justice.
As to the election of certain judges in the United States of America, the Human Rights Committee noted that it was “concerned about the impact which the current system of election of judges may, in a few states, have on the implementation of the rights” guaranteed by article 14, and it welcomed “the efforts of a number of states in the adoption of a merit-selection system”.
It also recommended that the system of “appointment of judges through elections be reconsidered with a view to its replacement by a system of appointment on merit by an independent body”.
Accordingly, the election of judges would not seem to be compatible with the notion of independence as set forth in article 14.
Unless judges have some long-term security of tenure, there is a serious risk that their independence will be compromised, since they may be more vulnerable to inappropriate influence in their decision-making.
Principle 11 of the Basic Principles therefore provides that “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.”
Principle 12 further specifies that “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”
It would consequently be contrary to Principles 11 and 12 to appoint or elect judges with no guarantee of tenure at all or only a brief period of guaranteed term of office.
It is by providing judges with a permanent mandate that their independence will be maximized, as will public confidence in the Judiciary.
The international and regional treaties do not expressly deal with the question of financial security for the Judiciary and individual judges, but Principle 11 of the Basic Principles provides that judges shall have adequate remuneration and also pensions.
The question of fair and adequate remuneration is important since it may help attract qualified persons to the bench and may also make judges less likely to yield to the temptation of corruption and political or other undue influences. In some countries judges’ salaries are protected against decreases, although pay increases may depend on the Executive and Legislature.
Where the Executive and Legislature control the budgets of the Judiciary, there may be a potential threat to the latter’s independence.
Principle 13 of the Basic Principles provides that “promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience”.
Improper factors not linked to the professional merits of the judges concerned are thus not to be considered for purposes of promotion. Such improper factors might, for instance, include attitudes of discrimination based on gender, race or ethnicity.
While there is no disagreement about the need for judicial discipline among judges, the question arises as to how to decide on possible sanctions in cases of misconduct, who should decide, and what the sanctions should be. It is also imperative that judges not be subjected to disciplinary action because of opposition to the merits of the case or cases decided by the judge in question.
It would thus appear clear that the Human Rights Committee considers that the term “independent” in article 14(1) of the Covenant requires that unethical professional behaviour be dealt with by an organ fully independent of government influence.
The matter of discipline, suspension and removal of judges is also dealt with in Principles 17-20 of the United Nations Basic Principles, which read as follows: “17. A charge or complaint made against a judge in his/her judicial and
professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to decisions of the highest court and those of the legislature in impeachment or similar proceedings.”
To sum up, the general assertion can be made that, under international law, judges subjected to disciplinary proceedings must be granted due process before a competent, independent and impartial organ which must be – or must be controlled by – an authority independent of the Executive.
It would however seem that, at least under the American Convention on Human Rights, disciplinary proceedings may be brought against judges of constitutional courts by the Legislature, provided that the organ determining the charges strictly respects the principles of independence and impartiality and that the relevant proceedings comply with the due process guarantees laid down in article 8 of the Convention.
The independence of a tribunal is indispensable to fair court proceedings, be they criminal or civil. As laid down in Principle 6 of the Basic Principles: “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”
As previously noted, the concept of impartiality is closely linked to that of independence and sometimes the two notions are considered together. The requirement of impartiality is contained in article 14(1) of the International Covenant on Civil and Political Rights, article 7(1) of the African Charter of Human and Peoples’ Rights, article 8(1) of the American Convention on Human Rights and article 6(1) of the European Convention on Human Rights. Principle 2 of the Basic Principles also specifies that “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
The creation in special situations of military courts or other courts of special jurisdiction such as State Security Courts is commonplace and often gives rise to violations of the right to due process of law. While the international treaties examined in this Manual do not draw any express distinction between ordinary and special, including military, tribunals, the Human Rights Committee made it clear in its General Comment No. 13 that the provisions of article 14 of the Covenant “apply to all courts and tribunals within the scope of that article whether ordinary or specialized”.
This means, for instance, that likewise, military or other special tribunals which try civilians must comply with the condition of independence and impartiality. The Committee admitted that this could cause a problem, since “quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice”.
Yet, “while the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14”.
The need for strong, independent and impartial prosecutorial authorities for the effective maintenance of the rule of law and human rights standards has already been emphasized in this chapter. This matter is covered by the Guidelines on the Role of Prosecutors, which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990 “to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings”.
This document provides 24 Guidelines covering the following questions: qualifications, selection and training; status and conditions of service; freedom of expression and association; role in criminal proceedings; discretionary functions; alternatives to prosecution; relations with other government agencies or institutions; disciplinary proceedings; and observance of the Guidelines.
As noted in the fifth preambular paragraph of the Guidelines as read in conjunction with the second preambular paragraph, “prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect and compliance with ... the principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal...” for the purpose of “contributing to fair and equitable criminal justice and the effective protection of citizens against crime”.
Guidelines 1 and 2 provide respectively that “persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”, and that States shall ensure that “selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice” on various stated grounds, “except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”.
Further, according to Guideline 2(b), States shall ensure that “prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law”.
While prosecutors, “as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession” (Guideline 3), States shall, for their part, “ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability” (Guideline 4).
Furthermore, “prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions” (Guideline 5).
The law or published regulations shall, inter alia, set out “reasonable conditions of service of prosecutors, adequate remuneration”, and, wherever a system of promotion exists, it “shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures” (Guidelines 6 and 7).
As to its role in criminal proceedings, “the office of prosecutors shall be strictly separated from judicial functions” (Guideline 10).
Furthermore, prosecutors “shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation or crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest” (Guideline 11).
Like judges, prosecutors cannot act according to their own preferences but are duty-bound to act “in accordance with the law” and to “perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system” (Guideline 12).
In performing their duties, prosecutors shall, inter alia, “carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination”, and “shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences” (Guideline 15).
Prosecutors have a special obligation with regard to “evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights”.
In situations of this kind they shall either “refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice” (Guideline 16).
In addition to independent and impartial judges and prosecutors, lawyers constitute the third fundamental pillar for maintaining the rule of law in a democratic society and ensuring the efficient protection of human rights. As stated in the ninth preambular paragraph of the Basic Principles on the Role of Lawyers, which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990: “... adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession”.
In order to be able to carry out their professional duties effectively, lawyers must not only be granted all the due process guarantees afforded by domestic and international law, but must also be free from pressures of the kind previously described with regard to judges and prosecutors: in other words, a just and efficient administration of justice requires that lawyers too should be allowed to work without being subjected to physical attacks, harassment, corruption, and other kinds of intimidation.
Principle 12 of the Basic Principles provides that “lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice”, and, according to Principle 13, their duties “shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate”.
In “protecting the rights of their clients and in promoting the cause of justice”, lawyers shall also “seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession” (Principle 14).
Lastly, “lawyers shall always loyally respect the interests of their clients” (Principle 15).
According to Principle 16 of the Basic Principle on the Role of Lawyers, “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
Furthermore, “where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities” (Principle 17).
Every year many lawyers are killed, threatened, intimidated or harassed in various ways in order to prevail upon them to relinquish the defence of clients seeking to claim their rights and freedoms. It is therefore essential that Governments do their utmost to protect lawyers against this kind of interference in the exercise of their professional duties.
Another important rule is laid down in Principle 18, according to which “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”.
The question of lawyers’ identification with their clients has been dealt with by the Special Rapporteur on the independence of judges and lawyers, who in 1998 for instance stated that he viewed “with some concern the increased number of complaints concerning Governments’ identification of lawyers with their clients’ cause”, adding that lawyers “representing accused persons in politically sensitive cases are often subjected to such accusations”.
Identifying lawyers with their clients’ causes, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned.
According to the Special Rapporteur, “Governments have an obligation to protect such lawyers from intimidation and harassment”.
If Governments have evidence to the effect that lawyers identify themselves with their clients’ cause, it is, as stressed by the Special Rapporteur, “incumbent on [them] to refer the complaints to the appropriate disciplinary bodies of the legal profession”, where, as described below, they will be dealt with in accordance with due process of law.
The question of identification of lawyers with their clients is particularly relevant when they are called upon to represent human rights defenders.
However, here too lawyers must be given the same guarantees of security enabling them to carry out their professional duties independently and efficiently without governmental or other undue interference. Again, any alleged professional misconduct should be referred to the established independent organs.
With regard to guarantees for the functioning of lawyers, Principle 19 of the Basic Principles also provides that “No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.”
Principle 20 adds that “Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.”
Principle 23 of the Basic Principles on the Role of Lawyers provides that “Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.
In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with
the law and the recognized standards and ethics of the legal profession.”
Principle 24 further states 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”.
Moreover, according to this principle “the executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference”. It follows from this principle that these associations shall aim at safeguarding the professional interests of the lawyers and strengthening the independence of the legal
profession. Bar Associations shall not, consequently, be used “to indulge in partisan politics” whereby they would compromise “the independence of the legal profession”.
With regard to professional discipline, Principle 26 of the Basic Principles provides that “Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.”
Complaints against lawyers “shall be processed expeditiously and fairly under appropriate procedures”, and lawyers “shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice” (Principle 27).
Furthermore, “disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review” (Principle 28).
Finally, all such proceedings “shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles” (Principle 29).
It follows from these principles that any disciplinary proceedings against lawyers who are accused of having failed to conduct themselves in accordance with the recognized standards and ethics of their profession must be truly independent of the Executive and guarantee due process in the course of the proceedings.
Lawyers constitute a fundamental pillar for maintaining the rule of law and ensuring the effective protection of human rights. In order to be able to fulfil their professional duties, lawyers must, in particular:
_ be able to work in true independence, free from external political or other pressure, threats and harassment; e.g., they shall not have to obtain Executive permission to exercise their professional duties;
_ be ensured due process guarantees, which include the legal right and duty to advise and assist their clients in every appropriate way in order to protect their interests;
_ be able to act to uphold nationally and internationally recognized human rights;
_ be allowed to answer for violations of rules of professional conduct before an independent disciplinary board respecting due process guarantees. Lawyers also enjoy the fundamental freedoms of association, assembly and expression.
