I. The legal profession under the Rule of Law (Congress of Delhi,
Committee IV, cl. vii-x.)
1. It is
essential to the maintenance of the Rule of Law that there should be an
organized legal profession free to manage its own affairs. But it is
recognized that there may be general supervision by the courts and that
there may be regulations governing the admission to and pursuit of the
legal profession.
2. Subject to his
professional obligation to accept assignments in appropriate
circumstances, the lawyer should be free to accept any case which is
offered to him.
3. While there is
some difference of emphasis between various countries as to the extent
to which a lawyer may be under a duty to accept a case it is conceived
that:
(1) wherever a man's life, liberty, property
or reputation are at stake he should be free to obtain legal advice and
representation; if this principle is to become effective, it follows
that lawyers must be prepared frequently to defend persons associated
with unpopular causes and minority views with which they themselves may
be entirely out of sympathy;
(2) once a lawyer has accepted a brief he
should not relinquish it to the detriment of his client without good and
sufficient cause;
(3) it is the duty of a lawyer which he
should be able to discharge without fear of consequences to press upon
the court any argument of law or of fact which he may think proper for
the due presentation of the case by him.
4. Equal access
to law for the rich and poor alike is essential to the maintenance of
the Rule of Law. It is, therefore, essential to provide adequate legal
advice and representation to all those threatened as to their life,
liberty, property or reputation who are not able to pay for it. This may
be carried out in different ways and is on the whole at present more
comprehensively observed in regard to criminal as opposed to civil
cases. It is necessary, however, to assert the full implications of the
principle, in particular in so far as "adequate" means legal advice or
representation by lawyers of the requisite standing and experience. This
is a question which cannot be altogether dissociated from the question
of adequate remuneration for the services rendered. The primary
obligation rests on the legal profession to sponsor and use its best
effort to ensure that adequate legal advice and representation are
provided. An obligation also rests upon the State and the community to
assist the legal profession in carrying out this responsibility.
II. The
responsibility of the bar for the protection of the rights of the
individual in society (Conference of Lagos, 1962, Committee III, cl 6-7)
1. To maintain
the respect for the Rule of Law it is necessary that the legal
profession should be free from any interference.
2. (a) In
countries where an organized bar exists, the lawyers themselves have the
right to control the admission to the profession and the discipline of
the members according to rules established by law.
(b) In countries where an organized bar does
not exist, the power to discipline lawyers should be exercised by the
judiciary in consultation with senior practicing lawyers and never by
the executive.
3. All steps
should be taken to ensure equal access to law for both rich and poor,
especially by a provision for and an organization of a system of legal
aid in both criminal and civil matters.
III. The role of lawyers in a changing
world (Congress of Rio, 1962, Committee III)
1. In a changing
and interdependent world, lawyers should give guidance and leadership in
the creation of new legal concepts, institutions and techniques to
enable man to meet the challenge and the dangers of the times and to
realize the aspirations of all people.
The lawyer today should not content himself
with the conduct of his practice and the administration of justice. He
cannot remain a stranger to important developments in economic and
social affairs if he is to fulfill his vocation as a lawyer: he should
take an active part in the process of change. He will do this by
inspiring and promoting economic development and social justice. The
skill and knowledge of lawyers are not to be employed solely for the
benefit of clients, but should be regarded as held in trust for society.
2. It is the duty
of lawyers in every country, both in the conduct of their practice and
in public life, to help ensure the existence of a responsible
legislature elected by democratic process and an independent, adequately
remunerated judiciary, and to be always vigilant in the protection of
civil liberties and human rights.
3. Lawyers should
refuse to collaborate with any authority in any action which violates
the Rule of Law.
4. Lawyers should
be anxiously concerned with the prevalence of poverty, ignorance and
inequality in human society and should take a leading part in promoting
measures which will help eradicate those evils, for while they continue
to exist, civil and political rights cannot of themselves ensure the
full dignity of man.
5. Lawyers have a
duty to be active in law reform. Especially where public understanding
is slight and the knowledge of lawyers is of importance, they should
review proposed legislation and present to the appropriate authorities
programmes of reform.
6. Lawyers should
endeavor to promote knowledge of and to inspire respect for the Rule of
Law, and an appreciation by all people of their rights under the law.
7 If lawyers are
to discharge their obligations under the Rule of Law they will need to
exercise individual initiative and to act through every available
organization, including in particular self-governing lawyers'
associations. Such associations must be entirely free of interference
and control by the executive.
8. The Rule of
Law requires lawyers of competence and integrity who are available to,
and do in fact represent the whole community regardless of racial,
religious, political, geographical or other differences. Lawyers should
be numerous and diverse enough to serve the needs of the community and
to ensure that every person can obtain adequate representation by a
lawyer of his own choice.
Individual lawyers and their associations
have the duty to work with judges, other officials and community
organizations to provide indigent persons with adequate legal service.
9. The Rule of
Law requires an authority which has the power to, and does in fact,
exact proper standards for admission to the legal profession and
enforces discipline in cases of failure to abide by a high standard of
ethics. Those functions are best performed by self-governing
democratically organized lawyers' associations, but in the absence of
such associations the judiciary should act instead. Discipline for
violations of ethics must be administered in substantially the same
manner as courts administer justice. Associations exercising those
functions must be open to all qualified lawyers without discrimination
based on race, religion or political persuasion. Lawyers associations
should encourage reciprocal agreements or other procedures to eliminate
the requirement of citizenship as a prerequisite to the right to
practice law.
10. (i) In order
to ensure adequate representation, it may be essential in some cases to
allow lawyers from foreign countries to appear.
(ii) Lawyers' associations must take all
necessary steps to ensure the representation of clients whose causes may
be unpopular
11. It is
essential to the Rule of Law that the client be free to discuss all
matters with his lawyer without fear of disclosure by the lawyer, either
voluntarily or by compulsion.
12. In an
interdependent world, the lawyer's responsibilities extend beyond
national boundaries. They require his deep concern for peace, and
support for the principles of the United Nations and the strengthening
and development of international law and organizations. The lawyer
should also promote an increased application of arbitration,
adjudication and other legal procedures in the settlement of disputes
among nations. Finally, the lawyer should support the negotiation and
conclusion of international conventions and agreements on human rights
and fundamental freedoms, thus leading to the day when the universality
of the Rule of Law may be achieved.
13. At all times
the lawyer should strive to be a visible example of the ideals of his
profession-integrity, competence, courage and dedication to the service
of his fellow men.
IV. The role of the lawyer in a
developing country (Conference of Bangkok, 1965, Committee III)
Preamble
Law and lawyers are instruments of social
order. Without law, the evolution of mankind to its present stage of
development would not have been possible. Through the law, society is
preserved and man is enabled to live and love and labor in peace from
generation to generation.
The law is not negative and unchanging. It
should be not a yoke, but a light harness holding society loosely but
firmly together, so that it may move freely forward. Order is important,
but it must be an evolving order; the law must be firm yet flexible, and
capable of adapting itself to a changing world. This is especially so in
a developing country.
Poverty, lack of opportunity and gross
inequality in the Region (The South East Asian and Pacific Region, with
which the Bangkok Conference was primarily concerned) require leaders
who understand the need for evolutionary change, so that every citizen
may look to a future in which each may realize his full potential as an
individual in a free society. The great need of the peoples of the
Region requires action, lest freedom be utterly forfeited. Beset by
threats from the right or left, the statesman must find means to advance
the economic and social development of his country and countrymen,
whilst preserving or establishing the institutions and the freedoms
which are the cornerstones of a free society under the Rule of Law.
These problems require the lawyer to playa
vital role in their solution. They cannot be solved by lawyers alone.
But the life of man in society and his relationships with others are the
subjects of the lawyer's special knowledge and study; in many parts of
the Region lawyers are particularly well equipped to see these problems
in perspective, and to devise solutions.
The lawyer must look beyond the narrower
confines of the law, and gain understanding of the society in which he
lives, so that he may play his part in its advancement. The inspiration
of the lawyers of the world, with the ideals set forth in this Chapter
under the heading "The Role of Lawyers in a Changing World", could play
a large part in molding free societies of the future, able to promote
the full dignity of man, and to withstand the perils and dangers of the
changing times.
With particular reference to developing
societies it can be stated that:
1. The lawyer has
a deep moral obligation to uphold and advance the Rule of Law in
whatever sphere he may be engaged or in which he has influence, and he
should fulfill that obligation even if it brings him into disfavor with
authority or is contrary to current political pressures. He can give
effect to many of the principles underlying the Rule of Law in his daily
work; for the rest, it is his responsibility as a citizen in a
developing community to apply them for the benefit of society and his
fellow-men.
2. An
indispensable aspect of the maintenance of the Rule of Law is the
availability of lawyers to defend the civil, personal and public rights
of all individuals and the readiness to act for those purposes
resolutely and courageously. Such a readiness involves the obligation to
take an active part in implementing and making effective schemes of
legal aid for the poor and destitute.
3. The lawyer
should endeavor:--
(i) to secure the repeal or amendment of
laws which have become inappropriate or unjust or out of harmony with
the needs and aspirations of the people;
(ii) to review proposed legislation and
delegated legislative enactments, and to ensure that they are in accord
with the Rule of Law;
(iii) to ensure that the law is clear and
readily accessible;
(iv) to promote legislation establishing the
legal framework which will enable a developing society to advance, and
its members to attain their full dignity as human beings.
4. The lawyer
should assist in the work of administration; he should insist,
nonetheless, that it be executed with respect for the rights of the
individual and otherwise according to law, and strive to assure judicial
review of all administrative acts which affect human rights.
5. Lawyers must
bring to bear in the field of international relations the underlying
principles of respect for law, coupled with a concern for all mankind,
particularly the poor, the weak, the illiterate, and the oppressed.
6. Lawyers should
be actively concerned with legal education and the provision of adequate
incentives for teachers of law, and do their utmost to implement the
principles enunciated hereafter in Chapter VII, as being particularly
relevant in the context of the Rule of Law in developing societies. The
Rule of Law, as a dynamic concept, requires that legal education should
bear a realistic relation to the social and economic conditions
obtaining in developing societies, so that future lawyers may be better
equipped to perform their role in a constructive manner.
7. Lawyers should
endeavor to enlist the aid of their professional associations to secure
the acceptance by their members of the ideals set forth above.