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Myanmar: The role of lawyers

An independent legal profession is one of the pillars upon which respect for human rights and the rule of law rests.[75] They have an essential function in protecting human rights and ensuring the fair and effective administration of justice. Among other things, lawyers can play a critical role in protecting the right to liberty and the prohibition against arbitrary detention when representing people deprived of their liberty, including by challenging the legal basis of arrests and filing habeas corpus petitions. They can also protect fair trial rights when working to defend individuals charged with criminal offences. They play a crucial part in combating impunity, when advising and representing victims of human rights violations and their relatives, including in the context of criminal cases brought against the alleged perpetrators and in proceedings aimed at obtaining other forms of reparation. 

The ICCPR and other international standards guarantee the right of all persons charged with a criminal offence to access to counsel, and the right to defend themselves against the charges with the assistance of counsel. Those who do not have counsel of choice to represent them are entitled to have legal assistance assigned to assist in their defence in any case where the interests of justice so requires, free of charge if the accused cannot afford to pay.[76] The UN Principles and Guideline on Access to Legal Aid in Criminal Justice Systems and Human Rights Committee have clarified that the gravity of the offence, the complexity of the case, and the severity of the potential penalties are important factors in deciding on the “interests of justice”. Effective assistance by a lawyer, free of charge if necessary, is considered to be a fundamental requirement in death penalty cases.[77] At the regional level, the right to a fair trial has been interpreted as requiring the State to ensure the assistance of a lawyer, again free of charge if necessary, also in at least some non-criminal (e.g., civil) proceedings.[78]


 

 

 

 

 

Footnotes    (↵ returns to text)

  1. 75. Lawyers’ essential role in defending human rights and the rule of law has been underscored repeatedly by United Nations authorities, see inter alia General Assembly, Strengthening the rule of law: Report of the Secretary-General, UN Doc. A/57/275 (2002), ”para.
    Increasingly the importance of the rule of law in ensuring respect for human rights, and of the role of judges and lawyers in defending human rights, is being recognized. Significant attention is already being given to structural issues, such as the importance of national systems for the promotion and protection of human rights, and the role of national action plans and national human rights institutions in the Office’s human rights programmes. In the future, it will be important to place particular emphasis on the role of judges and lawyers and on the role of the international community in providing materials and case law for use by judges in this area. It will also be important to organize more and more exchanges of experiences among judges and lawyers at the national, regional, subregional and international levels so as to enhance progressively the role of judges and lawyers in the promotion and protection of human rights worldwide. In undertaking these activities, the Office will collaborate, as necessary, with the Special Rapporteur on the independence of judges and lawyers, to whom the Office provides the support necessary for the discharge of his mandate.
    Human Rights Council, Resolution on the Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, A/HRC/RES/23/6, (2013) Pre-amble.
  2. 76. ICCPR, ”Article

     

    3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: …

     

    (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

     

     UN Basic Principles on the Role of Lawyers, Principle 6.

     

    Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient mean

     

     See UN Principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings.
  3. 77. UN Principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings, UN Doc. A/RES/67/187 (2013), ”Principle

    Legal aid for persons suspected of or charged with a criminal offence.

    20. States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.

    21. Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency or complexity of the case or the severity of the potential penalty.

    22. Children should have access to legal aid under the same conditions as or more lenient conditions than adults.

    23. It is the responsibility of police, prosecutors and judges to ensure that those who appear before them who cannot afford a lawyer and/or who are vulnerable are provided access to legal aid.

    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.
    Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.
  4. 78. See the jurisprudence of the European Court of Human Rights on the interpretation of Article 6: Airey v. Ireland, Application No. 6289/73 (1979), para. 26 ; also see McVicar v. United Kingdom, Essaadi v. France, Application No. 49384/99 (2002), P., C., and S. v. the United Kingdom, Application No. 56547/00 (2002) and Steel and Morris v. United Kingdom, Application No. 68416/01 (2005). The Inter-American Court of Human Rights has addressed the need to remove obstacles in access to justice that might originate from a person’s economic status, including by ensuring free legal assistance, in Advisory Opinion OC-11/90; also see Advisory Opinion OC-18/03 on “juridical condition and rights of undocumented migrants” and Inter-American Commission on Human Rights, Report on Terrorism and Human Rights. The 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, Article H explicitly provides for a right to legal assistance in civil cases where the interests of justice so require, to be determined in light of the complexity of the case, the rights that are affected and the likely impact of the outcome of the case on the wider community.
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