IN recent years, reports of lawyers taking the law into their own hands, harassing judges and going on strike for frivolous excuses have become commonplace. Pakistan’s superior judiciary has, however, maintained a somewhat stony silence on the subject as if these incidents did not merit its attention.

This changed in recent days when the Supreme Court took notice of misconduct of a lawyer in Sheikhupura, and indicated its intention of reviewing the Canons of Professional Conduct and Etiquette prescribed for lawyers under the bar councils and Legal Practitioners Act 1973 in order to better regulate discipline amongst advocates. Why has the SC had a change of heart? And, what are the possible implications of its actions for the country’s legal system?

To understand the timing of the SC’s notice of lawyers’ conduct, it is necessary to recall the backdrop against which this (mis)conduct first manifested itself. Until March 2007, except for a handful of famous legal personalities, lawyers were a somewhat nondescript group known only to those who came into direct contact with them and even then, were rarely regarded very highly.

The lawyers’ movement, however, catapulted lawyers into the limelight. Not only were they recognised throughout the country, more damagingly they had developed an inflated sense of their own importance which rather than being based on their ability to win justice for their clients in court stemmed from their brute street power.

The combined attentions of civil society, the media and judiciary would have turned almost any head, and lawyers were no exception.

Even after the lawyers’ movement had ended, a certain cadre of lawyers continued to focus exclusively on winning the day through their nuisance value rather than charting their path in the unglamorous, unpredictable and tedious world of courts.

Even then, a few sane voices warned against the dangers of this transformation in the profile of lawyers.

The bar councils, however, despite being mandated by the 1973 Act to take disciplinary action against lawyers guilty of ‘professional or other misconduct’ preferred to look the other way and continued to maintain these lawyers on their rolls perhaps so as not to lose a potential vote bank for subsequent bar elections.

More worryingly, the superior judiciary tacitly endorsed the attitude of the bar councils. It continued to focus on the role of lawyers in the lawyers’ movement instead of reminding them of their duty under the law and towards their clients. Further, it did so at the expense of the lower judiciary that felt increasingly sidelined and alienated.

Over time judicial analysts came to believe that the only possible explanation for the attitude of the superior judiciary vested in the person of the then chief justice Iftikhar Chaudhry, who not only viewed the restoration of the judiciary as a personal victory but also felt gratitude for the lawyers for making it possible.

In order perhaps not to jeopardise his equation with his ‘constituency’ he failed to comment on lawyers’ misconduct even in the face of protests of the lower judiciary.

The fact that the SC has taken notice of the lawyers’ conduct only after the retirement of the former chief justice not only lends credence to this theory but also suggests that the superior judiciary no longer considers itself hostage to lawyers.

Whilst this is a welcome development, the implications of the review of the 1973 Act, and particularly of the Canons of Professional Conduct and Etiquette, are not quite as straightforward.

In particular, there is an underlying concern that if, as a result of this review, the SC recommends that the courts, rather than the bar councils, take disciplinary action against lawyers and cancel their licences if necessary, it may render the bar subordinate to the bench rather than continuing as an autonomous pillar of the profession.

One may ask why this matters. The fact is that independence of the bar is at least as important for the proper functioning of a legal system as is the independence of judiciary. A lawyer should be able to appear before a court fearlessly and with confidence.

This is only possible if he is immune from the court’s disciplinary action except, of course, in matters related to contempt.

It is to ensure this independence that bar councils have been set up as autonomous professional regulatory bodies ostensibly free from the influence of both the judiciary and the executive.

The tragedy of Pakistan’s legal system lies in the bar councils’ inability to fulfil their statutory mandate and their failure to realise that maintaining professional standards rather than calling strikes is their true contribution to maintaining the rule of law in the country.

This, however, does not mean that there is nothing that the SC can do to salvage the prestige of the legal profession. It simply means that the SC may not engage in a surgical strike focused only on discipline.

It must appreciate that the misconduct of lawyers is symptomatic of a larger disease, which includes falling standards of legal education, both academic and vocational, and lax standards of enrolment targeted at collecting election fodder rather than high quality lawyers.

The SC may, therefore, consider a three-pronged approach that simultaneously targets standards of education, enrolment and discipline. Its particular challenge lies in doing so in a way that it not only retains but also enhances the bar’s esteem and independence rather than sacrificing it for expediency. n

The writer is a barrister.

amber.darr@gmail.com