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September 12, 2004

Law is no trade and briefs of the litigants not merchandise

Hassan M. S. Azim

It has been a frequent spectacle in the recent past for the nation to witness calls for boycotting the apex court of the land by the Supreme Court Bar Association. The last call was for boycotting the Court of the Hon'ble Chief Justice through a resolution taken on 29.08.2004.

In the resolution, grave concerns was expressed for the need to maintain and uphold the dignity and respect for the Supreme Court, the highest judicial authority of the country, among the members of public and to ensure that the appointments of Judges of the Supreme Court are made only with utmost care and there is not allowed any political consideration or nepotism.

It was also resolved that the members of the Supreme Court Bar Association in protest against the latest appointment of 19 Additional Judges which the Supreme Court Bar Association felt could have been avoided if the Chief Justice had refused to sign necessary consent/approval for such appointments should indefinitely boycott the Court of the Hon'ble Chief Justice starting from 30.8.2004. In the event any member of the Supreme Court Bar Association including Attorney General, Additional Attorneys General, Deputy Attorneys General and Assistant Attorneys General attend the court in violation of the resolution, such member should be expelled immediately without further notice from the Supreme Court Bar Association.

It is true that there is serious resentment among the lawyers over the appointment of 19 Additional Judges in the High Court Division of the Supreme Court. It was argued that at least 9 of them should have been found incompetent to be judges of the highest judiciary. Politicisation of the process of appointment of judges in the High Court Division of the Supreme Court is high-handed and unjustified. Any conscientious citizen would vehemently oppose and condemn such repulsive attitude of the government. Serious protest from amongst the lawyers against such appointments is inevitable.

It is submitted that boycotting court is illegal. An advocate is an officer of the court and enjoys as special status in the society. The legal profession is different from other professions in that, what the lawyers do affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. It is, thus, unbecoming of the status of an advocate to strike work and boycott the courts at the slightest provocation overlooking the harm caused to the judicial system in general and the litigant public in particular and to themselves in the estimate of the general public.

In Ramon Services Pvt. Ltd. Vs Subash Kapoor and others, reported in (2001) 1 SCC 118, the Indian Supreme Court held as follows:

"Generally strikes are antithesis of progress, prosperity and development. Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions and guidelines incorporated in the Advocates Act the rules made thereunder and rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from the courts by the advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice sometimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service-oriented profession. The relationship between the lawyer and his client is one of trust and confidence.

With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise…"

In Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., reported in (1999) the Indian Supreme Court also observed as follows:

"Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty-bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court is affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open court.

If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.

It was categorically held by the Indian Supreme Court in Ramon Services Pvt. Ltd. Vs Subash Kapoor and others (Supra) that it would be against professional etiquette of a lawyer to deprive his client of his service in the court on account of strike. No advocate can take it for granted that he will appear in the court according to his whim or convenience. It would be against professional ethics for a lawyer to abstain from the court when the cause of his client is called for hearing or further proceedings.

The full bench of the Calcutta High Court held that pleaders deliberately abstaining from attending the court and taking part in a concerted movement to boycott the court, was a course of conduct held not justified. The pleaders had duties and obligations to their clients in respect of matters entrusted to them, which were pending in the courts. They had duty and obligation to co-operate with the court in the orderly administration of justice. boycotting the court was held to be high-handed and unjustified.

In Tahil Ram Issardas Sadarangani Vs Ramchand Issardas Sadarangani, reported in (1993) Supp (3) SCC 256, the Indian Supreme Court, while deprecating the decreasing trend of service element and increasing trend of commercialisation of legal profession, pointed out that it was for the members of the Bar to act and take positive steps to remove such an impression before it is too late. By striking work, the lawyers fail in their contractual and professional duty to conduct the cases for which they are engaged and paid.

The legal position in Bangladesh is also similar with that of India. But legal authorities on this point of law are lacking in Bangladesh. The principles of Indian authorities, however, can shed light on the interpretation of the duties and responsibilities imposed upon lawyers by the Bangladesh Legal Practitioners and Bar Council Order, 1972 (in short 'Order of 1972') and Rules made thereunder.

Bangladesh Bar Council is established under Article 3 of the Order of 1972. Under Article 10 (C) of the Order of 1972, one of the functions of Bangladesh Bar Council is to lay down standard of professional conduct and etiquette for advocates.

Bangladesh Bar Council, accordingly, adopted the "Cannons Of Professional Conduct And Etiquette" framed in exercise of the power conferred on the Bangladesh Bar Council by Section 48 (q) of the Legal Practitioners & Bar Council Act, 1965 (now repealed) vide Article 44 (g) of the Order of 1972. As such, this has the force of law in Bangladesh and are, therefore, laws within the meaning of Article 152 of the Constitution. Hence, any act violating this would be illegal and unlawful.

Chapter III of the "Cannons of Professional Conduct and Etiquette" adumbrates the duties and responsibilities of advocates to the court. Clauses 7 and 8 of Chapter III of this are as follows:

" It is the duty of advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the bench and thus should strive to have elevated thereto only those willing to forgo other employment whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision. The aspiration of advocates for judicial position should be governed by an impartial estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves. It is the duty of advocates to appear in court when a matter is called and if it is not so possible, to make satisfactory alternative arrangements."

Thus, it is clear that although it is incumbent upon the advocates to strive to have elevated to the bench only those who are suitable for the bench and willing to forgo other employment whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision, yet boycotting court is illegal be it for whatever reasons. An advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or boycott the courts or even boycott any particular court. He is under a duty cast on him by law to appear in court when a matter is called for hearing and if it is not so possible, to make satisfactory alternative arrangements. Hence, any decision to strike work or boycott court by the advocates is illegal.

The writer is an advocate of the Supreme Court of Bangladesh.