Toxic entitlements written by Babar Sattar

The writer is a lawyer
 based in Islamabad

“Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” This was Abraham Lincoln’s discerning counsel to fellow lawyers.

It is the stories of Lincoln, Jinnah, Gandhi, Hamilton, Marshall, Mandela etc, and the perception of legal profession as a noble calling that inspires men and women to study law, and not the image of lawyers

as amoral defenders of all things crooked in the society and their profession.

Have we as lawyers earned the respect of our fellow citizens? Aren’t we seen as a necessary nuisance for the most part? Banks treat the practice of law as a negative profession and don’t consider lawyers good credit. Ordinary people don’t wish to rent properties to us because they believe we’ll dishonour our word and drag them into litigation. We redeemed our public perception in 2007, when, consistent with the bar’s history of standing against dictators molesting the constitution, we stood tall for rule of law and constitutionalism.

But post restoration, rather than build on the sacrifices of right-minded lawyers and channel their zeal to pursue improvements in administration of justice and quality of legal services for citizens, we, as a professional community, became brash and conceited. We let the power that came with the success of the lawyers’ movement nurture a sense of entitlement amongst us, as manifested in our strikes and our brawls with clients, judges, police and journalists etc. Our actions have led to the minting of new vocabulary: ‘vukla-gardi’.

A Lahore Bar Association officeholder reportedly misbehaved in the court of an additional district judge in Lahore after the judge passed an order against his client. The judge lodged a complaint with the Lahore High Court. A supervisory committee of the LHC headed by its CJ issued the lawyer a show-cause notice. The lawyer didn’t show up for the hearing. The LHC suspended his licence under Section 54(2) of the Legal Practitioners and Bar Councils Act, 1973, and forwarded the complaint to the Punjab Bar Council for a final decision under Section 41 of the act.

In an extraordinary move, the executive committee of the Punjab Bar Council almost immediately set aside the suspension order of the LHC without deciding the complaint against the lawyer on its merit. The bar’s formal argument is that the LHC is vested with no authority to constitute a supervisory committee to look into disciplinary matters of lawyers. Notwithstanding its merit, what is obvious is that the provincial bar has no judicial power to determine how the LHC must exercise its statutory authority under Section 54 of the act.

But let’s not get into legalese yet. The argument that became the lever of action might have been more basic, parochial and self-serving. The bar probably thought that judges stood up to defend one of their own. And so lawyers had an obligation to come together to defend their fellow lawyer. Unfortunately, these turf wars hardly ever depend on what was said or done and whether it was right or wrong. Exceptions aside, the bar and the bench largely act as elite clubs committed to preserving their patronage structures and are programmed to close rank to fend against the risk of external accountability.

We can debate the desirability of our laws. Is Section 54 of the act (which authorises courts to suspend licenses of lawyers pending determination of whether they committed misconduct) good law or is it an undesirable fetter on the constitutional rights guaranteed by Article 10A (due process) Article 18 (right to profession) and Article 9 (right to life and livelihood) etc.? Does history show that this power has been used to prevent professional misconduct from interfering with court process or as a whip in the power play between judges and lawyers?

Does our contempt law strike the right balance between the freedom of speech essential for public scrutiny of judicial conduct on the one hand and the needs of a credible court system able to dispense justice without interference on the other? Does use of the contempt law suggest that it is employed to protect public interest linked to preventing and punishing obstruction of justice or preserving independence of the judicial organ, or has it been used to protect the shame of individual judges and to enable them to discipline lawyers they find unseemly?
Also Read: Hope Versus despair by Ahsan Iqbal

And what about the efficacy of our self-regulatory regimes, with judges holding judges to account and lawyers holding lawyers to account? To put it mildly, the results have been severely wanting. The purpose of vesting bar councils with regulatory power to discipline lawyers and suspend or revoke their licences is to uphold the public interest linked to the honesty, integrity and professional competence of lawyers. Likewise, judicial accountability is meant to ensure that the godly powers vested in judges to uphold rule of law are not abused.

There is near consensus in our country that our justice system is failing citizens. The courts are seen as offering too little too late. The lawyers are viewed with suspicion and deemed more a part of the problem than the solution by those seeking justice. Surveys suggest that the justice system as a whole is considered corrupt and ineffectual. How is it then that in decades our Supreme Judicial Council hasn’t stumbled on a legitimate reference alleging judicial misconduct? How is it that we never hear of bars disciplining lawyers for being dishonest, conflicted or incompetent?

There has been progress recently. In an unprecedented decision the Supreme Court has held that the administrative actions of judges, like those of other public office-holders, are subject to judicial review. The apex court was scathing in its review of appointments made by the Islamabad High Court and, while declaring them illegal, clarified that chief justices have no whimsical discretion to relax rules or do as they please. This SC has also reactivated the Supreme Judicial Council after a long interval (even if what we have witnessed so far is more speech and less action).

What we have not heard about or seen at all is a move to introduce reforms within the bars. The bar councils and associations are probably the most democratic institutions in the country. They regularly host contested elections and witness democratic and peaceful transitions from one administration to the next. Each year a large number of active lawyers go to vote for their preferred candidates. But somehow the focus on improving the administration of justice or quality of legal services or training of lawyers or ethics is never a campaign issue.

The bar (and dare one say the bench) is inflicted with the same curse that bleeds our polity: moral timidity. Our notion of esprit de corps has morphed into being proud pack animals that live and hunt together. We believe our survival depends on unconditional loyalty to the pack. If we break rank, we are on our own. And it’s a jungle out there. As a reformist your best chance is to rise within the ranks and play your hand when your time comes. But such pragmatism robs you of your convictions. So when your time comes, you’re just like those before you.

Can we slap ourselves out of this vicious cycle? Magic solutions there are none. But one suggestion makes sense: to become an agent of change every adult possessed of human agency must resolve to speak his mind and never let anyone else speak in his name when he disagrees with them. The unconditional commitment to the sides we have picked without regard to right and wrong must end. It is time to break rank.

What the Punjab Bar Council did to defend the lawyer charged with misconduct was wrong. Lets’ also critique Justice Mansoor Ali Shah wherever he falters. But the mutual regard between the bar and bench for their respective senses of entitlement must end.

Email: sattar@post.harvard.edu The writer is a lawyer based in Islamabad.