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November 7, 2004

The agitations at the Bar and its ethics: what next?

Naser Alam

For about two years the cloisters of the Supreme Court has mostly been known for the battle of the political quarters. Judges have been threatened first by a leading political party activists who were waging sticks against the chairs of their lordships with provocative comments, some writers blamed a former chief justice of 'betrayal', one other former chief justice was questioned about his integrity on election issues. During that time most of the active agitations were outside the vicinity of the courts gradually the agitating forces moved towards and into the highest judiciary. The members of the bar joined the political elements, promoted unprofessional conduct of agitation into the court cloisters, and now it finally entered into the courtrooms. It raises some grave concerns about what is coming next? What would be the agenda of the new-generation political lawyers? What kind of movement the bar would allow its members to demonstrate? What would be the bar's ethical limits?

Bar's ethical limits have not been an issue to those activists, surprisingly! What the Bar should indulge in doing and not doing has not been much talked about. These issues, which would have significant positive impact on the role of the members of the profession seems to have been put to the gallows. It appears that the underlying role of the bar has been pushed aside and the institution has been pushed towards adopting different agendas than it should practice, and recently been at the frontline of provocative and may be unconstitutional bustles.

The bar's role is to promote and improve the services and functions of the Bar; and to represent the interests of the Bar on all matters relating to the profession, public interest or in any way affecting the administration of justice. It should be the ambassador to attain a modern and forward looking profession which seeks to maintain and improve the quality and standard of service to all clients and towards ensuring dispensation of justice to the society. It should also maintain and enhance professional standards by regulating education and training for the profession. A modern and efficient bar should conduct research and promote the Bar views on matters affecting the administration of justice, including substantive law reform.

A member of the bar must not conduct himself or herself in a way, which is prejudicial to the administration of justice; or is likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

These are the underlying canons of the legal profession as well as the body who manages the profession. We have seen in recent years that the bar has been involved in mostly agitations against the government for judicial appointments. There have been demonstrations in the court and outside the court, in front of the Chief Justice's office, including insulting kicking on his office doors, passing resolutions for not attending the court, threatening any member of the profession with disbarment from the profession if they do not join the agitation and so on. Concerns have been raised that the newly appointed justices do not have proper legal experience and they would not be able to comprehend the legal issues properly and cannot deliver judgments in a professional way. There has been underlying allegation of political favours regarding some of the appointments.

If it is well founded that quality has been seriously compromised, then who is to blame for the poor benchmark? The bar is an autonomous institution; the bar and not the government should first ensure the quality benchmarking. One of the constitutional requirements for the appointment of a High court judge is ten years of practice. It is time to think why after ten years of legal practice a lawyer should not be competent enough to deal with legal issues at a higher court in the capacity of a judge?

As indicated above, one of the core role of the Bar is to enhance the quality of its members in dispensing legal services, thus the bar is responsible in ensuring that it is happening. Otherwise, the bar is in violation of its ethical duties to the professional clients and to the society. Any failure and its consequences should result in self-criticism. We are not thinking more about producing a brigade of competent legal professionals. The bar seems to be very focused on the blaming-game after something goes wrong, instead of resorting to active exercise of ethical control from the outset.

The bar also regulates the entry and it is well-known that entry to the bar is one of the easiest among other professions. It is surprisingly easier to get a law degree from a law college and in most instances by adopting unfair-means during exams and memorizing only a few very straightforward 'answers'. The bar exam itself is riddle with unethical practice. When I took my bar exam, I witnessed many would-be lawyers copying answers from books and other carefully carved notes, and I was stunned at the lack of supervision. Favouratism during the oral examination is an open secret, producing false case diaries is a 'normal' activity and this unethical list can go large.

Now, if those members snick into the profession not by way of intelligent demonstration, but by dint of unethical conducts, how can they not 'bring the legal profession to disrepute'? They would always look for more favouratism, commit unprofessional conduct and then finally kick at the door of justice.

Also caution should be exercised by the senior bar members not to dilute the ethical practice with agitation in the name of constitutional rights and professional duties. As a lawyer, we have a duty to the clients and to the court, and not to any political godfathers. We should shy away from the agitation style of the political godfathers and adopt a more resolute way of voicing our unity, rather than engaging in threatening behaviour. If the current style of agitation continues, then public confidence on the bar and the bar office bearers would degrade. It would then become an issue to the society as to whom they can trust.

I have not heard of any attempt by the bar to produce significant research on subtle legal issues these days. Members are increasing becoming political and the line of political influence on dispensing justice by them has merged and became indistinguishable. Why not think this way: if the senior members are known political activists, then those who follow them are also political activists. Now, when it comes to the appointment of judges, why should the junior members of the bar be blamed more for having political affiliations? If this problem were to be addressed properly, should the senior members not declassify them from politics altogether? Should they not set the ethical limits first and descend it upon the other members? Should they not become more resolute than confrontational? If we really mean to see a positive change, then the bar should practice fairness, ethics and constitutionality first. Otherwise, time is not probably far away when it would be hard to attract able legal professionals to the bench; may be the time has reached already!

The writer is a Barrister at Law.