Lawyers, as set out in the UN Basic Principles on the Role of Lawyers, shall at all times maintain the honour and dignity of their profession. Their duties include advising clients on their rights and obligations and the working of the legal system insofar relevant to their rights and obligations; assisting clients in every appropriate way and taking legal action to protect their interests; and assisting clients before courts, tribunals and administrative authorities, where appropriate. In doing so, lawyers must seek to uphold human rights and fundamental freedoms, and at all times act freely and diligently in accordance with the law and recognized deontological standards. They must always loyally respect the interests of their clients.{{101}}
The UN Basic Principles on the Role of the Lawyer recognize that in order for such legal assistance to be effective, it must be carried out independently. {{102}} this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole.
Governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.{{103}}
Among other things, the authorities must ensure lawyers are granted prompt and regular access to individuals who have been deprived of their liberty, regardless of whether they have been charged with a crime. {{104}} Initial lawyer-client meetings should occur from the very outset of detention, and in a matter involving suspected criminal conduct, before and during questioning of a suspect by the competent authorities, such as police, and investigating judges. {{105}} Any delay in access to counsel must be determined and justified on a case-by-case basis. In any case delay should not exceed “forty-eight hours from the time of arrest or detention”. {{106}} Delay in granting an individual access to counsel and/or other interference in the lawyer-client however, in particular in a criminal case, can affect the ability of the accused to protect and preserve his or her rights and may prejudice the overall fairness of the subsequent criminal proceedings.
International standards related to the rights of people charged with a criminal offence, including the ICCPR, provide that a client must be granted “adequate time and facilities for the preparation of his defence”. {{107}} Respect for this right requires, among other things that lawyers be permitted adequate time and facilities to meet with their detained clients. The UN Basic Principles on the Role of Lawyers, among other standards, affirm that those detained “shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality”. {{108}}
Because confidentiality is paramount to an effective lawyer-client relationship, states have the duty to respect and protect the confidentiality of lawyer-client communications, within the professional relationship. In the fulfilment of this duty international standards specify, among other things, that lawyer-client consultations between a detained person and their lawyer “may be within sight, but not within the hearing, of law enforcement officials”, {{109}} ensuring confidentiality but taking security needs into account.
The state is obliged to ensure that lawyers have “access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients”.{{110}}
It is essential that lawyers do not face any adverse consequences for representing any client. The UN Basic Principles require that lawyers “shall not be identified with their clients or their clients’ causes as a result of discharging their functions”. {{111}} Furthermore, lawyers “must never be subjected to criminal or civil sanctions or procedures which are abusive or discriminatory or which would impair their professional functions, including as a consequence of their association with disfavoured or unpopular causes or clients”. {{112}} Thus, 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”.{{113}}
Further, the authorities must safeguard lawyers’ security where this is threatened as a result of discharging their functions.{{114}}
In Myanmar, a number of practices interfere with lawyers’ independence. Lawyers face obstructions that impede their ability to provide legal assistance and for those acting on behalf of accused persons in criminal cases, to prepare their clients’ defence.
Firstly, lawyers’ ability to obtain clients is constrained by authorities’ refusal to grant initial access to potential clients or to register power of attorney. Sometimes, a bribe or unofficial “fee” is required. These problems are more likely to occur in politically sensitive cases. Further, both clients and lawyers fear being associated with a party that is viewed negatively by the courts.{{115}}
Secondly, access to clients deprived of their liberty can sometimes be difficult, particularly before the trial begins and when clients are in prison. Delays are common and again, bribes are often required. If it is possible to meet, the facilities provided for lawyer-client meetings are frequently not conducive to ensuring respect for the privacy of lawyer-client communications.{{116}}
A lawyer’s access to documents held by officials, thirdly, may be delayed or denied. Some believe this is motivated by politics. Unnecessarily bureaucratic procedures and disorganization of the courts are other reasons.{{117}}
Fourthly, delays and changes in the court schedule compromise legal representation. Some lawyers claim that trial timelines have been purposely manipulated to hinder their participation in the case.{{118}}
These problems are reportedly exacerbated in cases involving the government or military, or their interests, while added to them are monitoring and harassment of lawyers by intelligence officers and the politicized use of disciplinary proceedings and criminal charges, including contempt of court, to harass and intimidate lawyers as a result of their efforts to represent their clients in sensitive cases, despite no apparent wrongdoing on the part of the lawyer.{{119}}
Procedural protections, including the right of lawyers to present evidence and defend themselves during disciplinary hearings, were reportedly often ignored. {{120}} According to the International Bar Association, more than 1,000 of Myanmar’s estimated 48,000 lawyers {{121}} have been disciplined in Myanmar over the past 20 years,{{122}} with many having their licenses revoked (essentially disbarred) or suspended.
There have been far fewer politically motivated disciplinary proceedings during the recent period of quasi-civilian government. Many lawyers with whom the ICJ spoke said that they are unaware of recent license revocations. But the ICJ has confirmed at least four instances of lawyers whose licenses had been revoked or suspended during the past two years for seemingly political reasons. Two lawyers reportedly had their licenses revoked for making public comments of a “political nature” and critical of the judiciary. Another believes that his license was suspended because he represented a client against a powerful and wealthy local community leader, even though the official reasons given by the court which disciplined him relate to his missing a court date; such absences are not uncommon and do not generally result in a suspension.{{123}}
Many lawyers, some known for their work on human rights cases or their political activities, who lost their licenses under previous military regimes, have had them restored since the change of power, including four who spoke with the ICJ. {{124}} Myanmar’s National Human Rights Commission has worked with the Union Attorney-General’s Office to secure the return of licenses in some cases.
Despite these positive developments, recent reports indicate that as many as 200 lawyers, who were disbarred for political reasons, may remain without their licenses.{{125}} Notwithstanding assurances from the government that lawyers whose licences were revoked prior to 2011 can get their licenses back if “no cause exists to deny them on grounds of codes of conduct or discipline under the relevant laws and rules”,{{126}} the process for securing license restoration remains unclear. One lawyer said that those who have not been given permission to begin practicing law again are “the most activist [and] threatening; those working for workers [and] peasants”. Several disbarred lawyers have made applications to the government to have their licenses restored but have not received a response.{{127}}
[[101]]101. See UN Basic Principles on the Role of Lawyers,[expand title=”Principles 12-15.”]
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
13. The duties of lawyers towards their clients 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.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall 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.
15. Lawyers shall always loyally respect the interests of their clients.[/expand][[101]]
[[102]]102. UN Basic Principles on the Role of Lawyers, Preamble [expand title=”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,[/expand][[102]]
[[103]]103. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 16(a).”]Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;[/expand][[103]]
[[104]]104. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 7;”]Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.[/expand] General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), [expand title=”Principle 17;”]
1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.[/expand] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 34;”]The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.[/expand] Human Rights Committee, Concluding Observations on Georgia (1997), UN Doc. CCPR/C/79/Add.75, [expand title=”para. 28;”]The Committee urges the State party to take urgent steps to improve the situation in prisons, in particular, sanitary conditions. It invites the State party to cut down on the use of imprisonment as a punishment for minor violations and on pre-trial detention for excessive periods [/expand] International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), [expand title=”Principle 8.”]In times of crisis, lawyers must be guaranteed prompt, regular and confidential access to their clients, including to those deprived of their liberty, and to relevant documentation and evidence, at all stages of proceedings. All branches of government must take necessary measures to ensure the confidentiality of the lawyer-client relationship, and must ensure that the lawyer is able to engage in all essential elements of legal defence, including substantial and timely access to all relevant case files.[/expand][[104]]
[[105]]105. General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012), UN Doc. A/RES/67/187, Guideline 3, [expand title=”para 43(b);”]43. States should introduce measures… (b) To prohibit, in the absence of any compelling circumstances, any interviewing of a person by the police in the absence of a lawyer, unless the person gives his or her informed and voluntary consent to waive the lawyer’s presence, and to establish mechanisms for verifying the voluntary nature of the person’s consent. An interview should not start until the legal aid provider arrives; [/expand] Human Rights Council, Resolution 13/19 on Torture and other cruel, inhuman or degrading treatment or punishment: the role and responsibility of judges, prosecutors and lawyers, UN Doc. A/HRC/RES/13/19 (2010), [expand title=”para. 6.”]Calls upon States in the context of criminal proceedings to ensure access to lawyers from the outset of custody and during all interrogations and judicial proceedings, as well as access of lawyers to appropriate information in sufficient time to enable them to provide effective legal assistance to their clients;[/expand][[105]]
[[106]]106. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 7.”]Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.[/expand][[106]]
[[107]]107. ICCPR, [expand title=”Article 14(3)(b);”]3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:… (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; [/expand] General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), [expand title=”Principle 18.”]
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime. [/expand][[107]]
[[108]]108. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 8;”]All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a awyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.[/expand] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 34;”]The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter. [/expand] General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc. A/RES/43/173 (1988), [expand title=”Principle 18;”]
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 91;”]Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including:
(a) Confidentiality of the lawyer-client relationship and the right to refuse to give testimony if it impinges on such confidentiality;
(b) The right to travel and to consult with their clients freely born within their own country and abroad;
(c) The right to visit, to communicate with and to take instructions from their clients;
(d) The right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work;
(e) The right to accept or refuse a client or a brief on reasonable personal or professional grounds.[/expand] International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), [expand title=”Principle 8;”]In times of crisis, lawyers must be guaranteed prompt, regular and confidential access to their clients, including to those deprived of their liberty, and to relevant documentation and evidence, at all stages of proceedings. All branches of government must take necessary measures to ensure the confidentiality of the lawyer-client relationship, and must ensure that the lawyer is able to engage in all essential elements of legal defence, including substantial and timely access to all relevant case files.[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), [expand title=”Article 12-13;”]
12. The independence of lawyers in dealing with persons deprived of their liberty shall be guaranteed so as to ensure that they have free, fair and confidential legal assistance, including the lawyer’s right of access to such persons. Safeguards shall be built to avoid any possible suggestion of collusion, arrangement or dependence between the lawyer who acts for them and the authorities.
13. Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including: a) confidentiality of the lawyer-client relationship, including protection of the lawyer’s files and documents from seizure or inspection and protection from interception of the lawyer’s electronic communications; b) the right to travel and to consult with their clients freely both within their own country and abroad; c) the right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work. [/expand] International Law Association, Paris Minimum Standards of Human Rights Norms in a State of Emergency (1984), [expand title=”Article 5.2(b).”]Any law providing for preventive or administrative detention shall secure the following minimum rights of the detainee: … (b) The right to communicate with, and consult, a lawyer of his own choice, at any time after detention.[/expand][[108]]
[[109]]109. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 8.”]All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.[/expand]. Outside criminal justice matters, Principle 22 establishes that “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential”.[/expand][[109]]
[[110]]110. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 21;”]It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.[/expand] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 33[expand title=”para. 33;”]“Adequate facilities” must include access to documents and other evidence; this access must include all materials69 that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel. [/expand] International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), [expand title=”Principle 8.”]In times of crisis, lawyers must be guaranteed prompt, regular and confidential access to their clients, including to those deprived of their liberty, and to relevant documentation and evidence, at all stages of proceedings. All branches of government must take necessary measures to ensure the confidentiality of the lawyer-client relationship, and must ensure that the lawyer is able to engage in all essential elements of legal defence, including substantial and timely access to all relevant case files.[/expand][[110]]
[[111]]111. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 18.”]Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.[/expand][[111]]
[[112]]112. International Commission of Jurists, Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), [expand title=”Principle 7;”]Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 84.”]Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law and it is the duty of the lawyer to do so to the best of his ability and with integrity and independence. Consequently, the lawyer is not to be identified by the authorities or the public with his client or his client’s cause, however popular or unpopular it may be.[/expand][[112]]
[[113]]113. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 20;”]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.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declation), [expand title=”Article 85.”]No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or assisted any client or for having represented any client’s cause.[/expand][[113]]
[[114]]114. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 17.”]Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.[/expand][[114]]
[[115]]115. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 35.[[115]]
[[116]]116. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), pp. 36-37.[[116]]
[[117]]117. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), pp. 37-38.[[117]]
[[118]]118. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 39.[[118]]
[[119]]119. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), pp. 17-26.[[119]]
[[120]]120. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), pp. 23-25.[[120]]
[[121]]121. DLA Piper New Perimeter, Perseus Strategies and Jacob Blaustein Institute for the Advancement of Human Rights, Myanmar Rule of Law Assessment (March 2013), p. 35.[[121]]
[[122]]122. IBAHRI, The Rule of Law in Myanmar: Challenges and Prospects (December 2012), p. 63.[[122]]
[[123]]123. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar(December 2013), p. 25.[[123]]
[[124]]124. See, e.g., Irrawaddy, Activist Lawyers Have Licenses Returned (21 November 2012).[[124]]
[[125]]125. Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, The Rule of Law in Myanmar: Challenges and Prospects , UN Doc. A/HRC/22/58 (17 April 2013), [expand title=”para. 67.”]The Special Rapporteur was encouraged by Supreme Court decisions in 2012 which reinstated 11 of the 32 lawyers he had cited in his previous report as being disbarred for political reasons, and continues to follow progress on the remaining cases. However, he remains concerned about information he has received of the ongoing intimidation of lawyers by State officials, including lawyers in Rakhine State seeking to provide legal counsel to Muslim defendants, as well as the arbitrary revocation of licenses (with some sources stating that 200 lawyers remain disbarred for political reasons). He reiterates his recommendation regarding the establishment of a strong and independent bar council, which will help to increase the protection of lawyers and improve the training and education of lawyers in the application of international human rights law at the domestic level. He will follow with interest progress in amending the Bar Council Act and Legal Practitioners Act.[/expand][[125]]
[[126]]126. Asian Human Rights Commission, Lawyers can get revoked licenses back, govt says (25 May 2012).[[126]]
[[127]]127. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 25[[127]]
