The challenge to us as lawyers is not to degrade the principles and the values we hold civilised by failing in applying them when we think we find the result of their application least acceptable .
— Justice Edwin Cameron, Supreme Court of Appeal, South Africa
ON Oct 29, the Supreme Court Bar Association (SCBA) will, after extensive politicking, elect a new president.
At any time before the lawyers` movement, this election may have been of limited interest. However, the ability of the SCBA to galvanise the legal community, as demonstrated throughout the movement, has created the perception of a correlation between the democratic values of the SCBA president and the state of democracy in the country and has rendered the SCBA election an event of almost national significance. maintain higher professional standards of probity and integrity amongst its members check and eradicate unprofessional practices
Whilst the focus on SCBA as a defender of the rule of law is important, especially to the extent that it checks possible abuse of authority by the executive, it has the negative impact of detracting from a more important aspect of SCBA`s mandate, which, according to the Supreme Court Bar Association Rules 1989 (under which the SCBA was formed) is to “” and “”.
Ethical standards for lawyers have been of concern in the subcontinent at least since the British, by the Royal Charter of 1774, established the Supreme Court of Judicature. Before this, the subcontinent had experienced sophisticated secular legal systems under the Mauryas (321-185 BC) and the Mughals (16th-19th centuries); however, it had neither had, nor felt the need for, an organised legal profession as most supplicants either pleaded their cases in person or through trusted relatives, friends or patrons.
The establishment of the Supreme Court and other independent courts brought recognition, wealth and prestige to the legal profession and with it the need to ensure that only appropriately qualified persons, of character and integrity, appeared before the court.
The idea was to protect both the courts (from abuse of legal process) and the client as he now only had a professional relationship with the lawyer and was no longer linked to him by bonds of kinship as he may have been during Mauryan or Mughal times.
Consequently, the British introduced the Legal Practitioners Act, 1879, in terms of which the power to regulate and discipline lawyers was vested in the courts.
Subsequently, under the Indian Bar Councils Act, 1926, this responsibility was transferred to the bar councils that were authorised to decide all matters pertaining to legal education, qualification for enrolment and discipline and control of the profession.
This development, whilst it gave advocates greater ownership of the profession, also placed upon their shoulders an onerous responsibility.
At Partition, Pakistan adopted the Legal Practitioners Act, 1879 and the courts rather than the bar councils had the power to discipline lawyers.
In 1965, this power was transferred to the bar councils and except for a brief interruption in 2007 when Gen Musharraf amended the Legal Practitioners and Bar Councils Act, 1973 to allow the courts to take disciplinary action against lawyers guilty of professional misconduct, disciplinary power has remained with the bar councils, and by extension, with the bar associations. Canons of Professional Conduct and Etiquette for Lawyers
Whilst the bar councils have discharged this responsibility to the extent of framing which state in terms of lofty ideals, the duties of a lawyer to other lawyers, clients, the court and the public — and to which every lawyer is bound, in theory, to adhere to, throughout his career — they have failed to rigorously enforce these canons.
This disregard for enforcement has rendered the canons purely academic and a large number of lawyers, in fact, remain entirely unaware even of their existence.
The superior courts of Pakistan have time and again taken notice of transgressions by lawyers and recommended action against them; however, there is no readily available public record of any such action taken by the bar councils. Canons
Whilst the bar`s soft approach towards the was always evident, it has become more pronounced in the aftermath of the movement, perhaps because lawyers have, in certain situations, abused their position more visibly.
The consequences of this approach are tragic. It undermines the cumulative integrity of the profession which cannot then be trusted to sustain any movement for upholding democratic values in the country. It unleashes on the unsuspecting client, a lawyer who may fail to address his legitimate grievances and, most damagingly, it weakens the entire justice system, casts a shadow on the trustworthiness of the profession and permanently destroys a lawyer`s reputation, which may in the long run prove to be his primary asset. Canons
Nowhere is adherence to more important than at the Supreme Court because it is only when senior counsel set an example that juniors may be motivated to follow. Canons