In a letter addressed today to the President of Lebanon, the ICJ requested that the Government stop all disciplinary proceedings against two lawyers who represented a well-known human rights lawyer.
7 October 2003
His Excellency President Emile Lahoud
Office of the President
Baabda Palace
Baabda, Beirut
Lebanon
Fax: + 961 1 425 391 / +961 592 2400
Your Excellency,
The International Commission of Jurists (ICJ) consists of jurists who represent all the regions and legal systems in the world working to uphold the rule of law and the legal protection of human rights. The ICJ’s Centre for the Independence of Judges and Lawyers is dedicated to promoting the independence of judges and lawyers throughout the world.
We are writing to you regarding the case of lawyers Muhamed Mahmoud Fakih and Jihad Abu-Nader, two members of the Beirut Bar Association who currently face disciplinary proceedings for their legal defence of Mr. Muhamed Mugraby. As you know, the ICJ addressed a letter to your Government on 15 August calling for the release of Mr. Mugraby and the cessation of all harassment and intimidation against him. We are pleased to learn that Mr. Mugraby was released after spending three weeks in prison.
According to the information we have received, Mr. Fakih and Mr. Abu-Nader are now facing disciplinary measures for having represented Mr. Mugraby against the Beirut Bar Association without the Bar’s prior authorisation. Such representation is alleged to be contrary to Article 94 of the Code on the Organisation of the Legal Profession, which requires lawyers to first obtain the Bar’s permission prior to undertaking representation of a lawyer in a suit against another lawyer. We have been informed that the Bar has broadened the scope of Article 94 such that lawyers who are involved in lawsuits against the Bar must also obtain the Bar’s permission beforehand.
Pursuant to this procedure, which in our opinion is most unusual, Mr. Mr. Fakih and Mr. Abu-Nader sought the Bar’s authorisation to represent Mr. Mugraby. This authorisation was eventually granted, however, they continued to work on Mr. Mugraby’s defence while the Bar was considering their request. Mr. Fakih and Mr. Abu-Nader now face disciplinary proceedings for having worked on Mr. Mugraby’s behalf before the said authorisation was granted. If the Disciplinary Committee finds them guilty, Mr. Fakih and Mr. Abu-Nader will most probably be disbarred.
Instituting disciplinary proceedings against lawyers for defending their clients is incompatible with the right to a fair trial, in particular the right to choose one’s own counsel. The International Covenant on Civil and Political Rights, to which Lebanon is a party, establishes the unqualified right of a defendant to choose a lawyer in the following terms:
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;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing;
Furthermore, the said disciplinary proceedings against Mr. Fakih and Mr. Abu-Nader run counter to well-established international standards regarding the functioning of the legal profession. In particular, we would like to draw your attention to the United Nations Basic Principles on the Role of Lawyers, which were adopted by the U.N. General Assembly in 1990. The Principles also establish the specific right to freely choose an attorney. Principle 1 states:
1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.
Thus, requiring lawyers to obtain prior authorisation from the Bar or any other body before being able to represent a client constitutes an unacceptable infringement on the right to a fair trial, which would be rendered meaningless if lawyers were subject to such vetting procedure.
We believe that the proceedings against Mr. Fakih and Mr. Abu-Nader are, in reality, a form of punishment for their defence of Mr. Mugraby and would like to remind your Government that intimidating or harassing lawyers is contrary to the UN Principles, which require States to guarantee that lawyers be able to work without obstacles. Furthermore, the Principles unequivocally establish that lawyers are immune for their professional activities carried out in the discharge of their duties and that they cannot be identified with their clients’ cases:
Principle 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
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.
We therefore respectfully request your Government to ensure that disciplinary proceedings against Mr. Fakih and Mr. Abu-Nader are stopped and that these lawyers undergo no further prosecution for the discharge of their professional duties.
Please receive the assurances of my highest consideration.
Ernst Lueber
Acting Secretary-General
Cc: HE Mr. Walid A. Nasr
Permanent Mission of Lebanon to the UN Office in Geneva
Parc des Mayens 28
1218 Grand-Sacconex
Fax: 022 791 8585
Judge ‘Adnan ‘Addoum
Prosecutor General
Palace of Justice
Beirut
Lebanon
Fax: + 961 1 422 957
His Excellency Bahij Tabbara
Minister of Justice
Ministry of Justice
Rue Sami Solh
Beirut
Lebanon
Fax: +961 1 862 622
Remond Chedid
President of the Beirut Bar Association
Mathaf
Beirut, Lebanon
Fax: +961 1 427 982