Leila Mohaghegh
The right to defend oneself arose when a place called the court came into being and rights and duties were codified in the communities. The accused gradually used the services of lawyers to defend themselves before the courts; Because in any legal system, there are complexities that ordinary people are unfamiliar with. Justice required that ordinary people be given the right to use a lawyer so that they could properly defend their rights in courts.
The concept of the right of defense in general means that people have the right to have a lawyer in all courts, and if they cannot have a lawyer, the government is obliged to provide them with legal services.
Article 35 of the Iran Constitution states:
“In all courts of law, the opposing parties to a dispute have the right to choose an attorney for themselves. If they cannot afford to hire an attorney, they should be provided with the means to do so.”[1]
Many international instruments, including the International Covenant on Civil and Political Rights, emphasize the role of the lawyer and the effect of his or her presence in a fair trial. The principle of justice is that the accused can have a lawyer in his defense because defending the right requires knowledge of laws and legal issues.
Article 14.2. of International Covenant on Civil and Political Rights states:
“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 defense 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; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it … .”[2]
Lawyers have a significant role in society. Without lawyers, justice may not be realized. The presence of lawyers in the courts is essential because justice may be lost without the presence of lawyers. The lawyer and the judge are moving in the same direction and that is to achieve justice.
A fair trial is a very important matter. The judge is also a human being and may make a mistake. Without the presence of a lawyer, the judge’s mistake may be greater. This is especially important for accused persons in criminal cases because the accused may not be familiar with the rules and regulations and the absence of a lawyer may make an innocent person guilty. Lawyers help the innocent person to be released from the charge by scrutinizing the case in court.
The accused is alone in front of the judiciary and police forces. He also has his own rights. We do not know if he is guilty or innocent. The role of the lawyer is to defend him and if he is innocent, the lawyer will direct the trial to his release, and if he is guilty, he will be sure that the person is tried fairly under the rules and regulations. The offender is also a human being and has the right to behave under justice.
Lawyers have a great responsibility for promoting justice in society. Lawyers must move on the path of justice and defend people’s rights without fear. If a lawyer is afraid of telling the truth, justice will never be realized. For this reason, the independence of the lawyer ensures the survival of justice.
A lawyer can stand against mistakes, irregularities, anomalies, lawbreaking, and incompetency, and anything that hinders a fair trial, with legal warnings, and prevent them from occurring.
The independence of lawyers has not been easily achieved in many countries. Over the years, many lawyers have been trying to gain independence.
Justice in court has two wings, the “judge” and the “lawyer”, both of which are necessary for flight to achieve justice. Just as a judge must be independent in his or her trial, a lawyer must be independent in defending his or her client too. Therefore, supporting the independence of lawyers is supporting justice because in the absence of an independent lawyer, there will be no justice or there will be less. Lawyers play a significant role in reforming the laws and problems of the community as well as judicial security.
Lawyers do not represent a commercial business; therefore, they must comply with professional ethics. The duties of a lawyer are different than a normal job. In addition to professional obligations, a lawyer must adhere to ethical obligations. Therefore, a lawyer not only accepts legal duties but also has a human and conscientious duty.
The presence of a lawyer in the courts is in the interest of the judiciary system and the people. The greater the presence of a lawyer in all litigation, the easier justice will be served and, consequently, the more peaceful the society will be.
[1] Constitution of the Islamic Republic of Iran at 12.
[2] “International Covenant on Civil and Political Rights”, online: United Nations Human Rights Office of the High Commissioner <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.