RECENTLY, an anti-terrorism court convicted Imran Manj and sentenced him to 18 years in prison for throwing a chair at a civil judge. The physical assault left the judge requiring urgent medical treatment. If the aggressor had been anyone else, the local bar association and the bar councils would have immediately moved to condemn the incident and demand strict punishment but because Imran Manj was a lawyer, the Faisalabad Bar Association jumped to his defence and staged a protest against the “fraudulent, unjustified, cruel and partial decision” of the anti-terrorism court.
Of course, one can question if the accused should have been tried for an offence under section 7 of the ATA and if the gravity of the offence justifies the severity of the punishment. Reasonable people can disagree on such issues but to ask that the decision be “declared null and void via suo motu within 24 hours” and then lock the courtroom when those demands are not met is simply grotesque. The Punjab Bar Council followed this up by issuing a call for strike across the entire province.
Keeping recent history in mind, the bar’s response is not too surprising. It has been tolerating professional misconduct taking place right under its nose for over a decade and its repeated failure to hold any meaningful accountability has allowed members of the bar to walk away from their execrable behaviour with sheer impunity.
Sitting judges have been locked up inside their own courtrooms. Judicial officers have been ridiculed and threatened in open courts. Female judges have been subjected to demeaning slurs and sexual innuendos. Traffic wardens and police officers have been roughened up and scuffles have broken out inside courtrooms. Then, there are the more discreet forms of professional misconduct; bribing your way through the system, misrepresenting in court or making a living out of helping clients escape arrest from the courtroom.
The Punjab Bar Council has been tolerating professional misconduct.
This particular incident — like many others before it — presented another opportunity for the Punjab Bar Council to determine if it wanted to align itself with the rule of law or the rule by lawyers. By opting to choose the latter, it did not surprise those who have become perpetually disillusioned with it.
For many in the legal profession, the ignominy of being associated with a body that takes such morally oppressive and indefensible positions is crushing. But this angst and frustration with the bar councils will not translate into meaningful change unless we create an appetite for accountability by reforming their composition and structure.
Under the Legal Practitioners and Bar Councils Act, 1973 each provincial bar council has a legal obligation to establish a disciplinary committee with the powers to take “disciplinary action” against advocates for professional misconduct. The law, therefore, not only creates a forum but also vests it with the powers needed to carry out internal accountability. But the ‘power to act’ is not the same thing as a ‘duty to act’. So while disciplinary committees may have been sufficiently empowered through federal law, that power is useless unless it is actually exercised.
In practice, that rarely happens because the disciplinary committee is captured by the very people it is meant to hold accountable — a point that has highlighted by many others.
Consider section 10(aa) of the act which provides that the disciplinary committee shall consist of “not more than five members to be elected by the council from amongst its members”. There are two fundamental problems associated with this structure. First, one cannot serve on the disciplinary committee without first being a member of the bar itself; the regulator and the regulated are the same. Second, all members of the disciplinary committee must be elected. This means that while membership of the bar and one’s identity as a lawyer is an important qualification under the first requirement, being popular with the voter base is a necessary proxy for securing a seat on the committee under the second requirement.
Why would any lawyer serving on the disciplinary committee, whose seat in office depends on the support of an electorate that comprises exclusively of advocates, risk the ire of his professional community by taking action against his fellow professionals? Unlike England and Wales, where the Bar Standards Board goes about its job by having a majority of lay people (non-barristers) on the board, our disciplinary committee has been captured by the very group that it intends to regulate. Because it is both elected — and dominated — by advocates, the disciplinary body lacks independence and autonomy which is essential for any regulatory body to function fairly and properly.
This is why — absent any significant reform — the prospect of effective and meaningful accountability within the bar remains a remote possibility.
The writer is a lawyer.
Published in Dawn, June 2nd, 2019