Every person who has the necessary qualifications and integrity should be allowed to practice as a lawyer. No discrimination is permitted on grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status with regard to entry into the profession or continued practice. The prohibition of discrimination does not however necessarily preclude a requirement that a candidate for judicial office must be a national of the country concerned.[79]
States should take special measures to provide opportunities and ensure needs-appropriate training for candidates from groups whose needs for legal services are generally not met, particularly when those groups have distinct cultures, traditions or languages or have been the victims of discrimination.[80]
The Special Rapporteur on the independence of judges and lawyers has recommended that “all aspects of the lawyers’ career be regulated by the bar association”, [81] in turn must be independent (see below).
Independence of the legal profession both implies and includes security for lawyers, their clients and justice. For lawyers, this regularly means being granted a license that establishes their credentials and gives them the privilege to practice law. Licensure is a means of ensuring the quality and integrity of lawyers. At the same time, being part of a licensed profession provides lawyers with special protection, applying particular safeguards to the exercise of their professional activities, thus contributing to their independent functioning. It thus also serves to protect and assure those who call upon lawyers for legal services and enhances the quality of the administration of justice.
Lawyers in private practice in Myanmar fall in one of two categories that date back to British colonial rule: higher-grade pleader and advocate. [82] The Legal Practitioners Act governs the admission of higher-grade pleaders, the Bar Council Act governs the admission of advocates, and the Court Manual provides further detail in relation to the qualifications and admissions processes for both classes of lawyers.[83] Admission to both categories of the profession is restricted to citizens.[84] In this regard, the on-going discrimination against Myanmar’s ethnic and religious minority Rohingya population poses a significant challenge, because most Rohingyas lack Myanmar nationality on account of historic and on-going discrimination. While in general imposing a nationality requirement for access to the profession is not necessarily prohibited by international standards,[85] the application of such a requirement in the specific context of Myanmar is another manifestation of the discrimination faced by members of the Rohingya community.[86]
Delays in approval of applications for licenses to practice as a higher-grade pleader or advocate are not uncommon. In an interview with an ICJ researcher, one lawyer stated that: “higher-grade pleaders after three years can apply to the Supreme Court to become advocates, but it takes at least two years to get approval”. Two others with whom the ICJ researchers met had applied for advocate’s licenses in 2005 and 2008 but did not receive them until 2012.[87]
- 79. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 10;”]Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 77″]Legal education and entry into the legal profession shall be open to all persons with requisite qualifications and no one shall be denied such opportunity by reason of race, colour, sex, religion, political or other opinion, national, linguistic or social origin, property, income, birth or status.[/expand] and [expand title=”80;”]Every person having the necessary qualifications, integrity and good character shall be entitled to become a lawyer and to continue to practise as a lawyer without discrimination on the ground of race, colour, sex, religion or political or other opinion, national, linguistic, or social origin, property, income, birth or status or for having been convicted of an offence for exercising his internationally recognized civil or political rights. The conditions for the disbarment, disqualification or suspension of a lawyer shall, as far as practicably, be specified in the statutes, rules or precedents applicable to lawyers and others performing the functions of lawyers.[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession, [expand title=”Standard 1.”]Every person having the necessary qualifications in law shall be entitled to become a lawyer and to continue in practice without discrimination.[/expand]↵
- 80. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 11.”]In countries where there exist groups, communities or regions whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions or languages or have been the victims of past discrimination, Governments, professional associations of lawyers and educational institutions should take special measures to provide opportunities for candidates from these groups to enter the legal profession and should ensure that they receive training appropriate to the needs of their groups.[/expand]↵
- 81. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report on mission to Turkey, UN Doc. A/HRC/20/19/Add.3 (2012), [expand title=”para. 66.”]The Special Rapporteur further notes with concern that the activities of lawyers are controlled by the Ministry of Justice, which deals with lawyers’ registration and disciplinary actions. It is recommendable that all aspects of the lawyers’ career be regulated by the bar association.[/expand] See also Human Rights Committee, Concluding Observations 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.[/expand]↵
- 82. The law relating to advocates is contained in the Bar Council Act, India Act XXXVIII 1926 (amended 1989); the law relating to pleaders in the Legal Practitioners Act 1999. See also Courts Manual 1999, [expand title=”S. 1.”]The law relating to Advocates of the High Court is contained in the Bar Council Act, and the rules framed thereunder. The law relating to Pleaders is contained in the Legal Practitioners Act, and the rules framed thereunder. Such of the statutory rules, framed under these two Acts, as are of interest to subordinate courts are reproduced in this Chapter. The only sections of the Legal Practitioners Act which govern Advocates are section 36 and sections 41 to 44 inclusive.[/expand]↵
- 83. Bar Council Act, India Act XXXVIII 1926 (amended 1989), [expand title=”S. 9;”](1) The Bar Council may, with the previous sanction of the High Court, make rules to regulate the admission of persons to be advocates of the High Court : Provided that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion. (2) In particular, and without prejudice to the generality of the foregoing power, such rules shall provide for the following matters; namely : – (a) the qualifications to be possessed by persons applying for admission as advocates : (b) the form and manner in which applications shall be made to the High Court for admission: (c) the giving of notice by the High Court to the Bar Council of all such applications: (d) the hearing by the High Court of any objection preferred on behalf of the Bar Council to the admission of any applicant: (e) the charging of fees payable to the Bar Council in respect of enrolment; and (t) the charging of annual subscriptions to be paid to the Bar Council after enrolment. (3) Rules made under this section shall provide that no woman shall be disqualified for admission to be an advocate by reason only of her sex.[/expand] Legal Practitioners Act 1999, S. 6-8, 36 and 41-44.↵
- 84. Courts Manual 1999, [expand title=”S. 3(3)”]No person, who is not a Citizen of the Union of Burma, shall be admitted and enrolled as an Advocate.[/expand] and [expand title=”S. 7(3).”]3. No person who is not a Citizen of the Union of Burma,shall be admitted and enrolled as a Higher Grade Pleader.[/expand] The Burma Citizenship Law 1982 awards full citizenship only to people who can prove that they belong to a recognized indigenous group, or that they descended from people who were permanently settled in Burma in 1823. Anyone else is “associate” or “naturalized” citizen or is not officially recognized at all. As a consequence, an unknown but large number of Myanmar’s inhabitants lack full citizenship. See IBAHRI, The Rule of Law in Myanmar: Challenges and Prospects (December 2012), p. 27.↵
- 85. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 10.”]Governments, professional associations of lawyers and educational institutions shall ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status, except that a requirement, that a lawyer must be a national of the country concerned, shall not be considered discriminatory.[/expand]↵
- 86. Furthermore, the reluctance of lawyers to represent Rohingya clients exacerbates the discrimination against this population’s access to justice and ability to claim their rights. See International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 20-21.↵
- 87. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 33-34↵
Comments are closed.