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Lawyers’ ethics

January 25, 2012

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WHEN a few lawyers chose to attack and deride Aitzaz Ahsan for defending Yousuf Raza Gilani in the Supreme Court where the prime minister had been summoned they betrayed another streak of intolerance that some of them have been displaying since their movement of 2007-2009.

The lawyers’ resort to violence — against court functionaries and fellow lawyers — did not raise their credit as defenders of the rule of law. Most people of goodwill for lawyers tried to overlook such incidents as signs of youthful exuberance in a fraternity that includes many sticklers for legal formalities and social responsibilities.

The decision by lawyers, however small their number, to mock one of the heroes of their recent movement cannot be passed over because it raises three issues: i) the status of the apex court; ii) every person’s right to defence; and iii) lawyers’ ethics.

According to media reports, the hecklers were not content with shouting anti-Aitzaz slogans on the court premises, they also raised a familiar chant in solidarity with the honourable chief justice of Pakistan. The implication was clear — that Aitzaz Ahsan had turned against the chief justice. In other words, they transformed the head of the judicial hierarchy into a party to an issue before the court. Such unwise friends of the judiciary cause it much greater embarrassment and harm than the effects of principled dissent.

We may have moved beyond the tradition of good old days when those who praised judges and their judgments were held as much guilty of contempt as those who criticised them — and a good judge (retired) of the Lahore High court was convicted of that — but there is a limit to which the judiciary can be allowed to be politicised, even made controversial, by partisans of one cause or another who pen irrelevant panegyrics.

The second issue, namely, the right of every person to be defended by a lawyer of his choice, also is quite important. Every respondent/ defendant/ accused has this fundamental right, however serious the charge against him. It is in a hazy recognition of this right that the law obliges the state to provide a defence counsel to anyone accused of murder, if he cannot afford to engage one himself.

Hazy recognition of a solemn principle because for one thing the counsel so arranged is often not one of the defendant’s choice and, for another, the state does not recognise a poor citizen’s right to a counsel at its expense unless he takes a fellow being’s life. Even the war criminals arraigned before the Nuremberg tribunal were not denied defence, in theory at least.

A doctor will not refuse to attend to a man wounded by police fire on the ground that he is a dacoit, nor is an enemy soldier left to die on the battlefield. Likewise no lawyer worth his salt will refuse to defend a person in conflict with the law. No counsel is believed to be a party to, or approver of, his client’s offence. M. Sleem and Khwaja Sultan were brilliant lawyers widely acclaimed for their defence skills in murder cases, and they will be remembered for long for their uprightness and sense of propriety in dealing with both courts and their clients.

There can be a few legitimate reasons for a lawyer to decline a particular brief — lack of time, lack of expertise in the relevant branch of the law, the lawyer’s inability to travel to the place of trial, or the client’s inability to pay the lawyer’s fees. But the nature of allegations against a person is not one of fair excuses. The consequences of a lawyer’s declining anyone help in view of the nature of charges against him can be extremely grave. It can mean denial of presumption of the accused’s innocence and may amount to condemning a person without trial.

Already we have seen that poor persons, especially those belonging to under-privileged communities, cannot find lawyers to defend them in cases based on belief. If intolerance of this variety grows the cause of justice in Pakistan will suffer grievous harm. In retrospect, it seems forcing a lawyer of the stature of Rashid Rizvi to give up a client was not a good idea at all.

Why shouldn’t a lawyer of Aitzaz Ahsan’s rank agree to defend a person charged with contempt, especially when he happens to have been elected to parliament by thousands of people and to the prime minister’s office by a majority of the members of the National Assembly? Whatever Gilani’s political sins may be, nothing can extinguish his right to the best legal advice he can find.

Before Aitzaz Ahsan became the target of the black coats’ attack quite a few people, including some lawyers, had deemed it prudent to criticise Asma Jahangir for taking up Husain Haqqani’s defence. This is quite an extraordinary departure from professional ethics.

We had an attorney-general who defended a murder accused before a sessions judge in Lahore and another attorney-general-cum-law minister who appeared for a party in a rent case and before a judge whose status could be altered by him.

Nobody has raised his eyebrows at seeing a former high court chief justice and another former judge who retired many years ago donning lawyers’ gowns to defend the killer of Salmaan Taseer. Nobody has questioned Akram Sheikh’s right to represent a person whose culpability for maligning the government and the armed forces of Pakistan both is patently on record and which needs no corroboration.

If Aitzaz Ahsan’s erstwhile followers had any notions about his change of heart they should have welcomed the fact that after wandering around alien arenas he had returned to their fold, where he all the time belonged.

Quite obviously, those who take exception to a lawyer’s acceptance of any brief take a very narrow view of legal counsel’s role. Every lawyer is, or should consider himself to be, a friend of the court. Contrary to the view entertained by misguided puritans, a lawyer’s function is not to get a criminal off the hook, his job is either to help a court determine a person’s guilt beyond any shadow of doubt or to ensure that a person is not punished for anything more than what the court, on the basis of evidence led before it, can find him responsible for.

The role of lawyers in helping courts to dispense justice even-handedly becomes more than ordinarily important if a defendant is declared guilty before trial — by policemen who kill their prey instead of hauling him before a judicial forum, by politicians who condemn suspects to be hanged by lamp posts without trial, and by media persons who degrade their calling by turning themselves into judges and prosecutors for selfish interest. In such cases, lawyers simply cannot disregard their professional ethics. So let all lawyers follow their own counsel.

Tailpiece: The Supreme Court order that the government should give in writing its pledge not to take action against the military top brass should cause immense relief in the democratic camp. Any one of its members can now pray for a written undertaking from the traditional coup-makers that they will never again sack a democratically elected government and that too without a show-cause notice.