Duty Of The Advocates To Rule Of Law

Law

Duty Of The Advocates To Rule Of Law

“… The rule of law depends upon public confidence and public acceptance of the judicial system; therefore, anything which tends to undermine that confidence in the judicial system must be strongly discountenanced.” [1]

Rule of law is the bedrock of any civilised society. It is the supremacy of regular as opposed to arbitrary power; the absence of any arbitrary power on the part of the government <citizens must respect the rule of law> also termed supremacy of law.” [2] A society without the supremacy of law is like a jungle where might is right and foul is fair. If there is any organ of the state which is vested with the duty to ensure that nobody is above the law, it is the judiciary. The advocates who appear in courts are under a duty to preserve the dignity of the judiciary.

“Learned Advocates and the legal fraternity in general, is in fact, the custodian and preserver of the dignity, independence and sanctity of this judicial institution. It must be remembered that their own respect and reverence is attached with the sanctity and reverence of this judicial institution. If a fraction of the legal fraternity is out to disfigure the face of this sacred institution or annihilate its image of impartiality, sacredness, sanctity and independence, none would be there to save them and this institution.” [3]

Historically speaking, the Lawyers’ Movement is one of the greatest struggles for rule of law in the history of Pakistan. Even in the ordinary course of professional activities, advocates consistently perform the noble duty of assisting the courts in the administration of justice. The honourable Supreme Court of Pakistan has observed that,

“The Bar exists for the purpose of ensuring access to and delivery of justice. The Bar is also meant to stand up for upholding the rule of law. But the Bar can discharge these functions only if its members abide by their code of conduct and are subjected, like everyone else, to the rule of law.” [4]

There is a chapter in the Pakistan Legal Practitioners and Bar Councils Rules 1976, which sets out the canons of professional conduct and etiquettes of advocates.[5] The non-observance or violation of any canon set out in the said chapter by an advocate makes him or her liable for disciplinary action for professional misconduct.[6] This chapter includes “the duty of the advocate to maintain towards the court a respectful attitude … At the same time, whenever there is proper ground for complaint against a judicial officer, it is the right and duty of an advocate to ventilate such grievances and seek redress thereof legally.”[7] This duty is two-fold: on one hand, it requires the advocate to remain respectful towards the court; on the other hand, it empowers the advocate to bring proceedings against a judicial officer through legal means. In our Constitution, any person can file a reference/complaint against a judge of the High Court or Supreme Court who can be removed by the Supreme Judicial Council if found guilty of misconduct.[8] However, even judicial officers are innocent until proven guilty of misconduct through the due process of law. It will be a mockery of the independence of the judiciary if mere filing of such complaint is said to absolve the complainant of his or her statutory duty towards the court.

Recently, there have been some unfortunate incidents where advocates have adopted contemptuous behaviour towards the honourable courts. For instance, on 2 August 2017, a group of so-called lawyers barged into the courtroom of the honourable Chief Justice of Lahore High Court and chanted slogans inside the courtroom, which forced the court to suspend proceedings. Since the duty to safeguard the dignity of the legal profession is on the shoulders of every advocate, over 200 lawyers (including myself) signed and issued a joint statement of condemnation in the newspapers against such a disgraceful incident and demanded strict action against the persons involved in the incident from the relevant associations and bar councils.

I am a legal practitioner with no background of bar politics. I came forward because I did not want the general public to draw any inference from my silence that the legal community approves of such violence. I broke my silence to register protest because my conscience did not allow me to sit idle against those who act like the ‘Sicilian mafia’ to bring our legal profession into disrepute in the eyes of the general public. I am not on any side, except that of the rule of law. Whenever the sanctity and respect of the court are at stake, we must come forward. Whenever advocates blatantly flout the orders of the court by not paying any heed to contempt notices and obstruct justice as rebels, we must come forward. Whenever our bar regulatory authorities fail to take effective and adequate steps against incidents of professional misconduct, we must come forward, because:

“The strength of the bar is not in its number but in its ability to stand up for justice and fairplay on the strength of reason, law and equity. The mark of a good lawyer is his [or her] unwavering boldness and unfaltering courage to stand and fight for what is right. Law is a noble profession and requires noble men [and women] – full of knowledge and respect for the law and judicial institution. It cannot be permitted that an advocate first hurls insults at the court, tarnishing the prestige and honour of the court in public and then tenders an apology at the end of the day. Defiling the dignity, honour and prestige of the court cannot be tolerated at any cost.”[9]

In the above case, an appeal was filed against the Single Bench order for suspension of licence and issuance of contempt notices for uttering derogatory remarks about the court contrary to the decorum of the court. The Division Bench found the advocate guilty of professional misconduct for not being respectful to the court despite issuance of an unconditional apology at a later stage. The period of suspension of licence was reduced from three months to one month on the acceptance of a “unanimous request of the bar leaders and elders” and assurance that “such an unfortunate event will not be repeated at the Lahore High Court by any member of the bar”.

The Constitution of Pakistan does not allow the exercise of unbridled powers by any person, hence reasonable restrictions have been imposed by law to secure the interests of justice. The law of contempt of court is one such example which restricts freedom of speech and assembly. In the famous words of Lord Acton, “Power tends to corrupt, and absolute power corrupts absolutely.” It is only in the law of jungle where, the powerful think of themselves as untouchables, immune from any accountability. The willingness to comply with the law is conditional and subjected to one’s convenience. It is very easy to speak in favour of compliance with the law when it is convenient and against it when inconvenient. In essence, compliance with the law can never be subject to one’s convenience.

The final Prophet of Allah, Muhammad (peace be upon him), gave a landmark ruling on the principle of equality before the law. When the people of Quraish worried about a lady from Bani Makhzum who had committed theft, they asked, “Who will intercede for her with Allah’s Apostle?” Someone said, “No one dares to do so except Usama bin Zaid the beloved one to our Holy Prophet (pbuh).” When Usama bin Zaid spoke to the Holy Prophet (pbuh), our Holy Prophet (pbuh) replied,

“Do you try to intercede for somebody in a case connected with Allah’s prescribed punishments? Those who came before you were destroyed because if a rich man among them stole, they would let him off, but if a lowly person stole, they would carry out the punishment on him. By Allah, if Fatima, the daughter of Muhammad stole, I would cut off her hand.” [10]

I leave you with the thought of why our founding fathers struggled for an independent nation. Was it to thwart the rule of law or hold oneself subservient to it? If we are to hold ourselves subservient to the rule of law as law abiding citizens, then we do not get to pick and choose between convenient and inconvenient laws.

———-

References:

[1] Muhammad Mansha v. The State, PLD 1966 SC 229, per Fazal Karim J
[2] Black’s Law Dictionary, 10th Edn., p. 1531
[3] FoP v. Mian Nawaz Sharif, PLD 2009 SC 284, para 33
[4] Salamat Ali v. State, 2014 SCMR 747, para 3
[5] Chapter XII
[6] Rule 175-A
[7] Rule 159
[8] Article 209 of the Constitution of Pakistan
[9] Ch. Imran Raza Chadhar v. The State, PLD 2016 Lahore 497, per Mansoor Ali Shah CJ (the then J) in para 4
[10] Al-Bukhari, Vol 4, Hadith No. 681

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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