An unfulfilled mandate
“DOES the bar have a mandate?” was the question posed to me when I mentioned the title of this article to a colleague. It would have been entirely understandable if a non-lawyer — besieged as he is by reports of lawyers engaging in such random acts as beating up judges, going on strike and most recently, banning Shezan juices from Lahore High Court premises — had asked this question.
Coming, as it did however, from a practising lawyer, this question seemed to me to be an indication not only of disillusionment within the profession but also of the stark disconnect between the practice and principles of law in Pakistan.
In terms of the ‘Canons of Professional Conduct and Etiquette’ framed by the Pakistan Bar Council (which comprises the elected representatives of the bar) the mandate, indeed the raison d’être of the bar is to ensure “the existence in society of a community of advocates, men learned in law and respected as models of integrity imbued with the spirit of public service and dedicated to the task of upholding the rule of law and defending at all times, without fear or favour, the rights of the citizen”.
The canons further state that “advocates are expected to contribute significantly towards the creation and maintenance of conditions … [that] assure the realisation of political, economic and social justice by all citizens” and in order to do so, “must conform to certain norms of corrected conduct in their relations with members of the profession, their clients, with the courts and the members of the public generally”.
The responsibility for enforcing the ‘Canons of Conduct’ and thereby ensuring that the bar fulfils its mandate, vests in the bar councils (both national and provincial) that are fully empowered under the Legal Practitioners and Bar Councils Act, 1973 to take disciplinary action against lawyers who have been guilty of “professional or other misconduct”. The bar councils, however, have been notoriously lax in exercising this authority for a variety of reasons. The most prominent may simply be a lack of will.
This in turn may be explained by the threefold need of the representatives of the bar to accommodate different pressure groups and thereby please the political parties with whom these may be affiliated, to maintain their ranks for subsequent benefit in elections or even to satisfy the cultural obligation of loyalty to social and tribal bonds which in Pakistan take precedence over professional standards.
Whatever may be the reasons for it, the neglect of the bar councils has been most damaging to the credibility of the bar itself.
Such is the centrality of the integrity of the bar to the proper functioning of a system of justice that England which boasts a historic tradition of an independent bar did not hesitate to introduce stringent measures to protect it.
It all perhaps started in 1982 with the Glanville Davies Affair, when a certain Leslie Parsons filed a complaint against Glanville Davies, a respected solicitor, for charging an exorbitantly high legal fee of £197,000. Upon inquiry, Davies happily reduced the fee to £67,000 and The Law Society (then the solicitors’ regulator) rather than taking any disciplinary action against Davies, merely allowed him to resign on grounds of ill health and thereby allowed his reputation to remain intact.
The matter was, however, not allowed to rest and a subsequent investigation organised by The Law Society itself found the regulator liable for “administrative failures, wrong decisions, mistakes, errors of judgment, failures of communication and insensitivity”.
The concern generated by this finding led in July 2003 to the secretary of state for constitutional affairs to appoint Sir David Clementi (a former deputy governor of the Bank of England) to undertake a wide-ranging independent review of the regulation of legal services in England and Wales. His report (the Clementi Report) published in 2004, paved the way for the separation of the representative and regulatory functions of the regulators of the legal profession.
Presently, the regulation of barristers and solicitors in England and Wales is vested in the Bar Standards Board (established in 2006) and the Solicitors Regulatory Authority (established in 2007) respectively, whilst the representative functions of the professions remain with the General Council of the Bar of England and Wales (for barristers) and the Law Society (for solicitors).
Perhaps the most remarkable feature of these regulatory bodies is that they include laypersons in the process of evaluating complaints received against lawyers. In order to ensure that lawyers serving on these bodies may not be tempted to condone one of their own, no complaint received against any lawyer may be dismissed without the express consent of the lay members.
Further, in the interest of transparency, these bodies regularly publish on their websites, a list of names of lawyers against whom complaints have been received or are pending as well as decisions taken against them.
It is unlikely that the bar councils in Pakistan, preoccupied as they are with matters other than the betterment of the profession, would follow the example set by the English and take an impartial, rigorous and forward-looking view of their affairs. In fact the bar is likely to vehemently oppose any such move, if proposed by the government, and immediately brand it as interference with its independence.
The bar is likely to go further and assert that the real problem in the justice system in Pakistan lies not with lawyers but with the judiciary. This inability to engage in the necessary introspection and the urge to deflect responsibility from itself on to others could however be the bar’s undoing.
The bar needs to appreciate that its inability to live up to its avowed professional ideals is not just detrimental for the society it operates in but ultimately for itself, for if this downward slide in the standards and ethics of the legal profession is allowed to continue unchecked, there will soon be nothing to distinguish lawyers from confidence tricksters preying mercilessly upon the vulnerabilities of clients.
The writer is a barrister.