New Directive Allows Iranian Judiciary to Control Lawyers Through Disciplinary Body
Paves Way for Arbitrary Discipline; Likely to Be Used against Human Rights Lawyers
Further Blow to Iranian Legal Profession’s Independence
In a new assault on the already diminished independence of the legal profession in Iran, a new directive has been issued by the judiciary that allows it to investigate complaints against lawyers, sidestepping the Iranian Bar Association’s own tribunal for such investigations and effectively asserting judicial control over any attorney in Iran.
The directive will open the door to the arbitrary disciplining of lawyers by the judiciary, and is likely to be used against human rights lawyers, according to Iranian legal experts.
Previously, any complaints against attorneys were investigated by the Bar Association’s own disciplinary tribunal. Now, complaints can be handled by the judiciary’s own court for judges, stripping the association of independence from a judiciary that is controlled by Iran’s security agencies.
On November 14, 2020, Mohammad Mosaddegh, the Iranian judiciary’s deputy chief for legal and parliamentary affairs, issued the 11-point directive to the heads of justice departments in all provinces, in order to enforce Judiciary Chief Ebrahim Raisi’s earlier mandate to put new restrictions on the legal profession.
Raisi’s mandate, “Honoring and Promoting the Status (of lawyers), Transparency of Lawyers’ Monetary Contracts and the Creation of a System for Proposals from Lawyers” was issued on May 19, 2020. Several months later, on October 14, 2020, Mosaddegh announced the creation of a new judicial body “to exercise effective supervision over lawyers.”
At a seminar revealing the new body, the deputy stated: “The General Office for the Supervision of Lawyers, Experts, Family Counselors and Official Translators has been created under the Office of the Deputy Judiciary Chief for Legal and Parliamentary Affairs, whose representatives will be appointed to every justice department in the provinces to coordinate and supervise lawyers, experts, counselors and official translators throughout the country.”
The new regulations must be followed “to confront violations,” Mosaddegh added.
Article 4, Paragraph C of the directive states, “If the continued employment of lawyers is not in the interest (of the public) due to doubts about their jurisdiction, or disciplinary violations or criminal convictions…, the matter is reported to the Bar Association’s Disciplinary Tribunal and if the application is denied, the Supreme Disciplinary Court for Judges can be petitioned to investigate…”
Paragraph D of the directive states: “The observance of professional and Islamic norms and behavior by lawyers and legal trainees, such as the observance of the Islamic hijab by female lawyers in judicial buildings as well as on social media, should be monitored and any violations or doubts as to practical commitment to Islam, the state of the Islamic Republic, the Constitution and the Supreme Leader… should be reported to the Bar Association, the Lawyers Center or the judiciary’s advisers in order to follow up the matter to the point of resolution.”
Judiciary Determined to Sideline Independent Lawyers
“It must be said that the directive has no basis in the law and, in fact, like many past directives and decrees in recent years, indicates the existence of a determined will to violate the law by issuing directives,” attorney Saeid Dehghan said in an interview with the Center for Human Rights in Iran (CHRI).
Dehghan believes the directive is unconstitutional, violating Article 23 of Iran’s constitution, which states: “The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.”
Dehgan said, “The directive is not only an example of thought policing but also an invasion of female lawyers’ privacy which will make it even harder for them to carry out their practice.”
Dehghan, who specializes in defending national security cases, added that in his opinion, the judiciary’s directive also violates the constitution’s Article 35. It states: “Both parties to a lawsuit have the right in all courts of law to select an attorney, and if they are unable to do so, arrangements must be made to provide them with legal counsel.”
He noted that the judiciary’s unyielding attacks on the legal profession had given rise to a new term in Persian legal literature and that is “tardid” or “doubt,” which refers to doubt in the integrity and beliefs of lawyers, “which is very dangerous.”
He added that questioning the integrity of lawyers is directly opposed to the principle of “istishab” in Islamic theology, meaning “the validity of prior certainty,” a variation on the presumption of innocence.
“If the deputy judiciary chief was observant of this theological principle, there would be no room for doubting lawyers’ commitment,” Dehghan told CHRI.
Islamic Republic’s Attack on Bar Association’s Independence Ongoing for Decades
Pointing to the historic trend of undermining the independence of the Iranian Bar Association, Dehghan continued: “An important turning point in the ongoing weakening of the Bar Association and destruction of its independence was in 1997 [with the passage of the Law on Obtaining Legal License] which authorized the Supreme Disciplinary Court for Judges to act like the Guardian Council in vetting lawyers.”
Critics of the 1997 law believe that Note 1 to Article 4 about the court investigating the qualification of lawyers is a blatant violation of lawyers’ autonomy, which did not exist in earlier laws regarding the bar association in 1953 and 1955, prior to the creation of the Islamic Republic.
Another point of contention regarding the 1997 law was Article 2, which calls for “actual belief and commitment to Islamic laws and principles,” “belief and loyalty to the State of the Islamic Republic and the Office of the Supreme Leader,” “not having a record of membership and activism with outlawed groups opposed to the Islamic Republic” and “no connections to the Pahlavi regime.”
Then in 2000, the judiciary took “another serious step to filter lawyers,” Dehghan said, with the creation of the General Office for the Supervision of Lawyers, Experts, Family Counselors and Official Translators in accordance with Article 187 of the Law of the Third Economic, Social and Cultural Development Plan, a new body that shadowed the work of the Iranian Bar Association.
“Over the years there have been many directives and decrees issued by the judiciary against lawyers’ autonomy,” Dehghan added, “but the most important assault came with the inclusion of a note to Article 48 of the Criminal Procedures Regulations, limiting suspects accused of national security and political crimes access only to lawyers approved by the judiciary in the initial stages of investigation.”
“After a mass protest in 2017, I had succeeded in gaining the acquittal of close to 40 protesters. But by the time the November 2019 protests took place, the note had been added [to Article 48 of the Criminal Procedures Regulations] and there was a list of lawyers approved by the judiciary that did not include the names of some of my colleagues and myself and as a result I was only able to defend the rights of no more than four or five clients,” the human rights lawyer said.
Lawyer: Judiciary hopes to force lawyers to “stay home and stop protecting the people”
“They are going to such lengths just to tell independent lawyers loud and clear: We don’t want you,” Dehghan said. “The judiciary’s responsibility is the enforcement of justice. It should not play the role of vice police.”
Dehghan believes that through these actions, the judiciary hopes to force independent lawyers to leave the profession, “stay home and stop protecting the people.”
He recalled that eight years ago there were perhaps 50 lawyers working full time on human rights cases, but now, after the prosecutions and incarcerations of numerous attorneys, there were only 10 or less active in the field.
Babak Paknia, an attorney who also specializes in human rights cases, concurred.
“The directive issued by Mr. Mosaddegh is not only against the law but also violates the Constitution,” Paknia said in an interview with CHRI. “If this directive is enforced, there will be no independence left of the Bar Association.”
He noted that in the past, even if the judiciary chief witnessed violations by a lawyer, he could only file a complaint with the Bar Association to demand an investigation.
“However, this directive strips the Bar Association’s self-regulatory powers. Now on the basis of this directive, the judiciary chief, for example, can file a complaint against a lawyer in the Supreme Disciplinary Court for Judges, which effectively hollows the Bar Association’s self-regulatory authority,” he added.
“When attorneys see they could lose their license, they won’t touch these cases anymore”
In Paknia’s opinion, the judiciary’s directive will not have a decisive impact on cases involving financial or criminal matters, but will have significant impact on national security-related cases—and human rights lawyers (as well as other human rights defenders) are frequently prosecuted under national security charges.
“In political and national security cases, it will make a big difference because a lawyer can easily be accused of lacking commitment (to Islam or the Supreme Leader) and his/her license could be revoked,” the lawyer noted.
He added, “When attorneys see they could lose their license, they won’t touch these cases anymore.”
Paknia also criticized the directive’s threat against women lawyers who do not fully observe the hijab.
“According to the directive, even if female lawyers do not observe the Islamic hijab on social media, they can be disciplined, despite the obvious fact that lawyers’ violations’ should only be investigated in connection with their work, not actions in their private space,” he said.
Paknia singled-out Mohammad Mosaddegh for carrying out many of the actions against the bar association.
“The judiciary’s deputy chief, contrary to his namesake, Dr. Mosaddegh, the former Iranian prime minister who was the defender of the bar association’s autonomy, is determined to destroy the independence of the bar association – an independence gained when Dr. Mosaddegh signed the Law of the Independence of the Bar Association in 1953.”
Read this article in Persian
