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این یک عنوان است.

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Mohammad Mohabbie

Around 100 years before Christ, there was a famous lawyer named Marcus Cisero in Rome, who has left and recorded more than 50 legal documents. These lawyers were usually well-spoken and had a special skill in rhetoric. The speeches they delivered in court and the legal documents they presented were in the form of tablets and booklets. Therefore, the history of lawyering in lawsuits is very long and has been a necessity in society since the day humans became more civilized.

In some countries, having a lawyer is mandatory and lawsuits are not accepted without a court-appointed lawyer. In our country, in the year 56, an amendment to the judicial laws was passed, which required the Ministry of Justice to gradually make the involvement of a lawyer in lawsuits mandatory. The Ministry of Justice was responsible for providing the necessary conditions and drafting its regulations. At that time, the necessary preparations were not made for this.

A fair trial without the presence of a lawyer is not possible and it is emphasized in international documents and regulations. If a lawyer is not allowed to intervene in the trial or if the courts do not accept the appointed lawyer by both parties, this is not a fair trial and it is also considered a violation of the law in our country.

In Iran, after the Constitutional Revolution, scattered laws, including the Law of Legal Procedures, made reference to representation in lawsuits. However, there were no specific regulations, but the first law on representation was passed on February 14, 1937, with 58 articles. In June 1937, a detailed regulation for this law was written, which has nearly 90 articles.

But independence and lawyers have been discussed for a long time in the world, and in England, they have had independence for 600 years. The first spark of lawyer independence was lit in the 15th or 16th century. In France, Napoleon did not go under the burden of signing the lawyer independence bill. In this country, conditions were set for lawyers, but the implementation of lawyer rulings was done by the judiciary. Napoleon believed that if lawyers were independent, they would speak against the government in court and no one would be their rival. At that time, the lawyer bill had a semi-independent status, for example, half of the members of the Bar Association’s board of directors were appointed by the provincial court and the other half were chosen by lawyers.

In Iran, after the Constitutional Revolution, the issue of independence and lawyers was also raised, but there was no mention of it in the Law of Agency. The first draft of the Independence of Lawyers was prepared by Dr. Mosaddegh. Dr. Mosaddegh was given the authority by the parliament to prepare and approve some laws regarding judicial, cultural, and military issues and to implement them for 6 months, in order to address any existing problems and then submit them to the parliament for approval. This draft was approved by Dr. Mosaddegh, but before it could be fully implemented, the coup of August 28, 1953 occurred and the national government fell. After the coup, this draft was approved by the parliament on December 7, 1954. In the 22nd term of the Bar Association of Judiciary, the 7th of December was named Lawyer’s Day and is celebrated every year as Independence of Lawyers Day, but unfortunately, only the

Article 187 and the threat to the independence of the legal profession in Iran.

Article 187 of the Third Five-Year Development Plan, approved on 4/7/2000 with subsequent amendments, states: “In order to provide necessary legal support and facilitate people’s access to judicial services and safeguard public rights, the Judiciary is authorized to approve the qualifications of law graduates for issuing licenses to establish legal consulting institutions for them. These consultants will be allowed to appear in courts and government and non-governmental organizations to provide legal representation for authorized applicants. The qualifications of official judicial experts can also be approved through this process. The executive regulations for this article and the determination of fees for the services of these individuals will be approved by the head of the Judiciary.”

When the Third Development Plan was drafted and approved in the Fifth Parliament, it was stated in Article 187 that the Judiciary is authorized to issue licenses to holders of law and judicial science degrees and operate under the supervision of the Judiciary.

However, despite the fact that this article was approved for the five-year development plan and had legal validity until the end of 1384, its implementation continues. The biggest damage to the independence of the legal profession in Iran is the Bar Association, which has only harmed the only real civil institution in Iran.

The implementation of this article at that time also sparked the protest of the Bar Association of the Central Judiciary, as the association believed that the legal system and the judicial system should be independent from each other. When lawyers are under the supervision of judges and courts, they will not have the independence to defend their clients. However, the law developers and judicial system managers did not accept this argument. They believed that the Bar Association of the Judiciary delays in issuing new licenses for new lawyers, to the extent that no new license has been issued for almost ten years. After the gradual and gradual expansion of protests, some licenses have been issued.

They have included Article 187 in the third development plan, which allows the judiciary to issue lawyer’s licenses. Later, when the sixth reformist parliament came into power and the fourth development plan was put on the agenda for approval, the same phrase, meaning the authority of the judiciary to issue lawyer’s licenses, was repeated in Article 219. However, the sixth parliament refrained from approving it. The argument of the sixth parliament was that Article 187 was only for a five-year period and there was no need for it to be approved again. However, the Guardian Council objected to the non-approval of this article in the sixth parliament and considered it contrary to the overall policies of the system.

According to the Guardian Council, job creation was one of the general policies of the system, and since Article 187 was also dedicated to job creation in the field of law, its removal contradicts the general policies of the system. The opinion of the Guardian Council on a subject that has not been approved by the parliament surprised the reformist lawyers, as they believed that the Guardian Council should express its opinion on the parliament’s decisions and say whether they are in line with Sharia and the Constitution or not. Therefore, the sixth parliament refrained from approving this clause, and the Guardian Council also insisted on its opinion, leading to six exchanges between the Guardian Council and the sixth parliament. Later, when the seventh parliament, with a majority of fundamentalists, came to power, a bill was presented regarding the opinion of the Guardian Council, according to which Article 187 became permanent. However, the fate of this article is still unclear, and according to the aforementioned dual bill, which is presented as a single

2- Reasons for lawyers’ opposition to Article 187

In recent years, there have been new discussions about the integration of organizations related to Article 187 with the Bar Association, which complicates the issue. This supplementary article, in contrast to the principles of the Constitution, the internal regulations of the parliament, and the necessary laws related to the legal profession, is in violation of the rules of the judiciary.

a) According to Article 74 of the Constitution, the initiative for legislation is through the submission of a bill by the Council of Ministers or a legislative proposal signed by 15 representatives. However, Article 187, which has been added to the government’s bill by the Conciliation Commission, has not followed the legal procedures for the approval of the bill by the Council of Ministers and has not been submitted as a legislative proposal by the representatives. Therefore, it cannot be included in the agenda and consideration of the Parliament in its current state.

B) The subject of the five-year development plan, based on the Law on Planning and Budget, approved in 1351, is exclusively the approval of development projects and the provision of related expenses during a five-year period. The approval of topics and titles that require permanent legislation must be presented in the form of a bill or legislative proposal and in accordance with the procedures specified in the Constitution and the internal regulations of the Parliament. Therefore, topics that fall outside the framework of the five-year development plan cannot be presented to the Parliament in any way, and the Islamic Consultative Assembly cannot pass temporary laws and regulations on these topics and titles.

In article 187 of the supplementary commission to the Fifth Development Plan, there is talk of a series of “legal institutions” that do not have a legal existence and are merely conceptual. Therefore, giving any rights or assigning any obligations to such institutions that do not have a real and legal existence has no place in the legislative process and it is not possible to establish such institutions even with the approval of regulations.

Article 32 of the Judicial Procedure Act of 2000 has granted a special exception to employees of the Ministry and government organizations who hold a law degree, allowing them to pursue legal matters related to their respective ministry in court through filing a lawsuit or defense. This article is subject to criticism as it deprives ministries and government organizations of the services and legal expertise of independent and experienced lawyers, but expanding the scope of this article and allowing a group of law graduates who have only completed a one-year internship without passing an entrance exam and without receiving theoretical and practical training in bar associations, causes irreparable financial and moral damage to the government’s rights in related lawsuits and essentially leaves ministries and government organizations defenseless in lawsuits brought against them in court.

In paragraph 2 of Article 187 of the Supplementary Bill of the Fifth Plan, permission has been granted to the Bar Association and the Judiciary to issue licenses for such “legal institutions”, while Bar Associations can only grant permission to lawyers to establish a legal institution if the legal procedures are approved in the Comprehensive Law of New Advocacy. However, Bar Associations cannot grant any permission to individuals who do not have a license to practice law. On the other hand, the duties and powers of the Judiciary are clearly and exclusively defined in Article 156 of the Constitution of the Islamic Republic of Iran, and the Judiciary does not have the legal authority to issue licenses for such institutions within the framework of this article and other relevant principles.

Article 187, which was included in the Third Five-Year Development Plan in 1999, has been a bitter and completely negative experience in this type of legislation during the Five-Year Plans. In a situation where the negative results of this experience have become apparent and the judiciary and the government are in the process of integrating legal advisors in the Bar Associations and restoring the general competence of the Bar Associations in issuing licenses within the framework of relevant laws related to the legal profession, the repetition of Article 187 in the Fifth Plan is another repetition of a damaging and corrupt experience in the country’s legislative system.

This article has many ambiguities and will have many corrupt consequences. In a society where everything is becoming more specialized, unfortunately, we sometimes take steps against this trend and repeated Article 187 is one example of this.

Repeated Article 187 also has flaws in terms of composition and editing. Legal institutions are not defined in this article and on the other hand, this article conflicts with other laws, including the Law on Obtaining a License for Representation and the Law on Representation.

Some have compared the graduates of medical and law fields with each other, while this comparison is not fair. On the other hand, it should be noted that graduates of medical fields do not immediately start practicing medicine like an experienced doctor, but instead go through various internships and retraining courses and work under certain regulations in their profession.

It is not right for the government or the judiciary to appoint a lawyer and entrust their fate to the government or the judiciary. These types of lawyers cannot have independence. During the trial of Darvish Gonabadi, two lawyers from the judiciary (Article 187) were in charge of their representation, and several lawyers from the Bar Association; the license of the lawyers who were in charge of the defendants’ representation by the judiciary was revoked, while there was no reason for the Bar Association to take such action. If a lawyer is not independent, justice cannot be achieved. A lawyer who is afraid that if he speaks the truth and defends his client, his profession will be in danger and his license may be revoked, cannot have any role in upholding justice and enforcing it.

The Bar Association, without a doubt, is a civil institution. Weakening the position of lawyers by the government means weakening the right to defense and human rights, which is both illegal and irrational. In the past, the civil nature of this institution was a given, and it is regrettable that after the revolution, despite all the human rights documents regarding the independence of lawyers, we still have to discuss and examine whether this institution is civil or not.

The Bar Association, as one of the longstanding civil institutions in Iran, has played a fundamental role in political development. However, after the February 1979 Revolution, its independence has been threatened for various reasons and in some cases, courts did not accept the presence of lawyers in trials. But gradually, having a lawyer in court became serious for the people. The right to have a lawyer is not explicitly mentioned in the Universal Declaration of Human Rights, but it is related to the right to defense of citizens and is clearly and specifically stated in the International Covenant on Civil and Political Rights. Having an independent lawyer is assumed to be a fundamental right of individuals, but the basis of the Iranian judicial system is not human rights, but rather religious jurisprudence. On the other hand, the issue of guardianship and the independence of this institution has not been a concern in the literature of jurisprudence, and recently, it has been addressed with the development of human rights discussions. Whether we consider guardianship

Self-empowerment and ambition for development is strong and overcomes obstacles with various mechanisms; the institution of guardianship has friction with the institution of power and has created an ideological shell to deal with it. We must examine the intellectual basis of the approach of independence of guardianship from the perspective of the powerful.

Some say that legal representation is a part of governmental affairs! Although the right to have a lawyer is mentioned in the Iranian constitution, until the foundations of this right are well explained, it will cause problems in the future and limit the rights of citizens.

The new law of criminal procedure has also added another restriction on the institution of attorney in Iran in Article 48. According to the fourth note of the new law of criminal procedure, which has recently been put into effect, it is stated that defendants of security crimes are only allowed to choose attorneys who have been designated by the head of the judiciary.

Security and political crimes in Iran do not have a clear definition, and usually critics and opponents of the regime are charged as security suspects in revolutionary courts without a fair trial and often behind closed doors.

Some jurists consider the new law to be against Article 35 of the Constitution of the Islamic Republic of Iran, which states that both parties in a dispute have the right to choose a lawyer. According to some lawyers, the new law makes the accused helpless.