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.
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.
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”, which 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.
One of the consequences of the lack of an operational legal framework for the legal profession is that there is currently no standardized procedure for admission to the bar presently in South Sudan. While for example the requirement for an individual to complete of a period of pupillage with a senior lawyer, set out under Sudanese law, appears to sometimes have been maintained as a practice in South Sudan, there is no evidence that this – or any other – condition for access to the profession is uniformly applied. The title of lawyer is used without that entailing the application of verifiable and predictable criteria as to the person’s competence. The ICJ heard accounts of lawyers holding law degrees from foreign countries working in South Sudan without ever having had to prove their familiarity with or expertise in South Sudanese law.
The training received by members of the legal profession practicing in South Sudan furthermore appears to vary greatly: some lawyers have a civil law and Sharia background, and were trained mainly in Arabic in Sudan; others have a common law, English-language background, either because they are foreign (mostly eastern African) nationals or because they are South Sudanese who were trained in the diaspora and returned to the country after independence.
The ICJ received information that approximately four hundred lawyers were working at the Ministry of Justice, and more than one hundred in private practice. The ICJ was also informed that vast majority of lawyers work in Juba, and that in some States and many counties there are no lawyers practicing at all.
The ICJ is concerned that the lack of clear, coherent and uniform norms and procedures for accessing the legal profession risks undermining the quality of the services provided by individuals are who are called (or are calling themselves) lawyers. Furthermore the lack of qualified lawyers throughout the country, including free of charge, means that many lack access to legal assistance for a large part of the population of ca. 11.5 million people, about 98% of whom live outside of Juba.
- 1. 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]↵
- 2. 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]↵
- 3. 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]↵
- 4. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 42.↵
- 5. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 43.↵
- 6. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 43.↵
- 7. CIA World Factbook. Estimates from 2014 (country’s population) and 2009 (Juba population).↵