In order for legal assistance to be effective, it must be carried out independently.{{1}} To this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole.
The UN Basic Principles recognise that lawyers are 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 are to be elected by its members and are to exercise its functions without external interference.{{2}} The UN Special Rapporteur on the independence of judges and lawyers has also underscored the “importance of an organized legal profession, including an independent and self-regulated association, to safeguard the professional interests of lawyers”.{{3}}
Lawyers’ professional organizations’ functions in ensuring the profession’s independence include, among other things, maintaining the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession, as well as protecting the intellectual and economic independence of the profession; defending the role of lawyers in society; promoting equal access of the public to the system of justice; promoting and supporting law reform; promoting a high standard of legal education as a prerequisite for entry into the profession, while ensuring equal access for all persons having the requisite professional competence; and promoting the welfare of the members of the profession.{{4}}
International standards place a duty on the authorities of the State to abstain from interfering in the establishment and work of professional associations of lawyers. The Human Rights Committee has raised concern about requirements for the compulsory affiliation of lawyers to a State-controlled association and the need for authorization by the Executive as prerequisites for the exercise by lawyers of the legal profession.{{5}}
International standards also underscore that associations of lawyers must, however, cooperate with governments to ensure effective and equal access to legal services, and to ensure that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.{{6}}
Lawyers’ associations are created to safeguard the professional interests of lawyers and to protect and strengthen the independence of the legal profession. As associations of essential agents in the administration of justice, they also have a key role in supporting law and justice sector reform. They should be able to engage in activities, and to initiate and participate in public discussion on the substance, interpretation and application of existing and proposed legislation. They should do so in a manner that is consistent with the protection and promotion of human rights, upholding the dignity of the legal profession and the legal system.{{7}}
The lack of an operational law mandating a Bar Association, to self-regulate the legal profession, is another gap in the existing legal framework of South Sudan.
During visits to Juba in May and September 2012, the ICJ delegation was introduced to the President and the Secretary-General of the Bar Association; also some of the lawyers with whom the ICJ met declared that they were members. However, upon inquiry into the concrete functioning of the Bar Association, the recurrent answer was that the Bar Association is “not operational”. Meetings with members of the legal community revealed the widespread sentiment that a unitary body mandated to represent the legal profession is needed.{{8}}
The ICJ considers that the current lack an operational independent Bar Association, with powers to regulate the profession, contributes to the fragmentation of the South Sudanese legal community, and hinders the implementation of systematic quality control of lawyers’ services.
It is also a contributing factor to the paucity of information on the number of practicing lawyers in South Sudan
[[1]]1. UN Basic Principles on the Role of Lawyers, [expand title=”Preamble para 9.”]
Whereas 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,
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[[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 24;”]
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.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(l);”]
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 association shall be elected by its members and shall exercise its functions without external interference.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 97;”]
There may be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.
[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 17.”]
There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.
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[[3]]3. Gabriela Knaul, Special Rapporteur on the Independence of Judges and Lawyers, Report on missions to Mozambique, UN Doc. A/HRC/17/30/Add.2 (2011), [expand title=”para 79.”]
The Special Rapporteur welcomes these developments, which are in accordance with international standards.16 She wishes to underscore the importance of an organized legal profession, including an independent and self-regulated association to safeguard the professional interests of lawyers, while protecting and strengthening ethics and the integrity and independence of the legal profession. She invites the international and regional community to explore ways of cooperating with OAM so that it can implement its Strategic Plan 2009-2014 and continue performing its important functions.
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[[4]]4. See International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18.”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
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[[5]]5. Human Rights Committee, Concluding Observations of the Human Rights Committee on Belarus, UN Doc. CCPR/C/79/Add.86 (1997), [expand title=”para 14.”]
The Committee also notes with concern the adoption of the Presidential Decree on the Activities of Lawyers and Notaries of 3 May 1997, which gives competence to the Ministry of Justice for licensing lawyers and obliges them, in order to be able to practise, to be members of a centralized Collegium controlled by the Ministry, thus undermining the independence of lawyers. In this regard:
The Committee stresses that the independence of the judiciary and the legal profession is essential for a sound administration of justice and for the maintenance of democracy and the rule of law. The Committee urges the State party to take all appropriate measures, including review of the Constitution and the laws, in order to ensure that judges and lawyers are independent of any political or other external pressure. The attention of the State party is drawn in this connection to the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Basic Principles on the Role of Lawyers, adopted by the United Nations General Assembly.
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[[6]]6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 25.”]
Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.
[/expand] For a more elaborate list on the functions of lawyers’ associations, see International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18;”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 99.”]
The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia:
(a) To promote and uphold the cause of justice, without fear or favour;
(b) To maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession;
(c) To defend the role of lawyers in society and preserve the independence of the profession;
(d) To protect and defend the dignity and independence of the judiciary;
(e) To promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice;
(f) To promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper procedures in all such proceedings;
(g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
(h) To promote a high standard of legal education as a prerequisite for entry into the profession;
(i) To ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to giver assistance to new entrants into the profession;
(j) To promote the welfare of members of the profession and render assistance to a member of his family in appropriate cases;
(k) To affiliate with and participate in the activities of international organizations of lawyers.
[/expand] Also see General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), [expand title=”Principle 10-11.”]
Principle 10. Equity in access to legal aid.
Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, indigenous and aboriginal people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Such measures should address the special needs of those groups, including gender‑sensitive and age‑appropriate measures.States should also ensure that legal aid is provided to persons living in rural, remote and economically and socially disadvantaged areas and to persons who are members of economically and socially disadvantaged groups.
Principle 11. Legal aid in the best interests of the child.
In all legal aid decisions affecting children, the best interests of the child should be the primary consideration. Legal aid provided to children should be prioritized, in the best interests of the child, and be accessible, age‑appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children.
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[[7]]7. UN Basic Principles on the Role of Lawyers, [expand title=”Principles 12″]
Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
[/expand] and [expand title=”23;”]
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.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 99(g);”]
The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia: …
(g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Standard 18.”]
The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:
a) to promote and uphold the cause of justice, without fear or favour;
b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;
c) to defend the role of lawyers in society and preserve the independence of the profession;
d) to protect and defend the dignity and independence of the judiciary;
e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;
f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;
g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;
h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;
i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;
j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;
k) to affiliate with and participate in the activities of international organisations of lawyers.
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[[8]]8. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 46-47.[[8]]
