Yesterday’s attack on the Lahore High Court is deplorable to say the least. Such thuggery should have no place in the legal profession. Important members of the bar, including people like Hamid Khan and Asma Jehangir who have significant influence in bar politics, must come out openly and condemn this behaviour without any reservation and/or qualification.
“Sitting judges have been locked up inside their own courtrooms. Judicial officers have been ridiculed and threatened in open court. Female judges have been subjected to demeaning slurs and sexual innuendos. Traffic wardens and police officers have been roughened up and scuffles have broken out inside courtrooms. Then there are other forms of professional misconduct – bribing your way through the system, misrepresenting in court or making a living out of helping clients escape arrest from the courtroom. Lawyers have gotten away with it all while the bar has stood there all along as a silent bystander doing nothing about it.“
In such circumstances, condemnation is not enough. #AdvocatesforRuleofLaw must do more and that, to begin with, involves starting a discourse on bar reform and building enough momentum to push that reform through.
The starting point of any such enterprise is to ask why there is no meaningful accountability within the legal profession? The theory of regulatory capture based on the work of University of Chicago economist and Nobel Laureate, George Stigler, provides one explanation for why there is no appetite for accountability within the bar. The following passage extracted from a piece I wrote (that was never published) attempts to summarise the issue.
“Under the Legal Practitioners and Bar Councils Act, 1973 each provincial bar council has a legal obligation to establish a disciplinary committee with the powers to take “disciplinary action” against advocates for professional misconduct. The law, therefore, not only creates a forum but also vests it with the powers needed to carry out internal accountability. But the ‘power to act’ is not the same thing as a ‘duty to act’. So while disciplinary committees may have been sufficiently empowered in theory, such empowerment is of no use unless that power is exercised. In practice, that power is rarely exercised because the disciplinary committee is captured by the very people it is meant to hold accountable.
Consider section 10(aa) of the Act which provides that the disciplinary committee to be established by the bar council of each province shall consist of “not more than five members to be elected by the Council from amongst its members”. There are two fundamental problems with this composition. Firstly, all members of the disciplinary committee are elected and that too by the very advocates over whose conduct the committee is expected to adjudicate. Secondly, one cannot serve on the disciplinary committee without first being a member of the bar itself. In this context, since the committee is both elected and dominated by the advocates, the disciplinary committee lacks independence and is besieged by interest group politics i.e. bar politics.
In other words, why would any rational actor serving on the disciplinary committee, whose seat in office depends on the support of an electorate that comprises exclusively of advocates, risk the ire of his professional community by taking disciplinary action against a fellow professional? Unlike England and Wales, where the Bar Standards Board goes about its job by having a majority of lay people (non-barristers) on the board, our disciplinary committee has been captured by the very group that it intends to regulate.“
This is precisely why – absent any significant reform – the prospect of effective and meaningful accountability within the bar remains a remote possibility.[1]
Any long-term solution to wuqala-gardi requires a change in institutional incentives (the incentives for the bar and its disciplinary committee) by changing its composition. This will take care of regulatory capture.
While we can argue over what shape the ultimate reform package must take, we should at least be clear that without addressing the underlying institutional problem, professional discipline/accountability within the bar will not improve.#AdvocatesforRuleofLaw should, thus, get together and push for legal reform.
References:
[1] Sameer Khosa makes a similar point. See, https://www.dawn.com/news/1290572/indiscipline-ignored.
The article was first published at https://kalaycoat.wordpress.com
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.
