Legal tribalism

Someone has to be the bearer of bad news. So here it is: don’t hold your breath for meaningful legal reform. We won’t let it happen. We understand that in its present state the legal system isn’t working of anyone (other than lawyers, maybe). But we won’t change our ethos.

We won’t allow a change in procedural or substantive law that threatens our political economy. We won’t allow any change that reduces our nuisance value. We, the legal fraternity, like all other entitled tribes in Pakistan, will talk a good game but won’t walk the talk.

Before allocating the entire burden of Pakistan’s failings on lawyers, let’s clarify a few things. Within the hierarchy of power elites, lawyers rank nowhere. As part of a professional elite that isn’t high up in the power echelons, we facilitate other elites. But lawyers as a group have come to understand that in the jungle the best chance of survival is as part of the pack. And that is where bar councils and associations figure. They exist as protectors of lawyers’ interests and multipliers of their leverage in interacting with other power elites, especially judges.

This description of our approach to the law of the jungle doesn’t square with our role within rule of law. In a rule of law system we are purveyors of justice. As officers of the court, our foremost duty is to the law, then to our conscience and then to our clients. But as we are self-regulated we have to enforce our duties ourselves. While bar associations are meant to be guilds, bar councils aren’t unions created to undertake collective bargaining. They exist under the Legal Practitioners and Bar Council Act, 1973 to regulate and discipline lawyers.

But our self-regulatory system isn’t working. Elected by lawyers and staffed by lawyers, bar councils are in a state of regulatory capture. We consider both bar associations and councils as sources of patronage. Bar councils don’t exist to discipline lawyers or enforce legal ethics but to offer us support and protection. We as constituents are unable to distinguish between our regulator and our representative. And that is why there is no enforcement of legal ethics and canons of professional conduct, and lawyers hardly ever lose licenses for misconduct.

It’s time we reconsidered our regulatory system. At the moment, our elections are a continuing cycle: Bar associations serve for a year and councils serve for five. Before one election is over, the next one is underway. Lawyer groups that have a say in determining who gets to run bar associations also determine who sits on bar councils. Elections are won not on the basis of manifestos but on patronage and personal contacts. You won’t hear about access to justice or the state of our jurisprudence or bar-bench relations or anything of substance in these contests.

The system creates a zero-sum environment. No one seems to be in control. You question the president of a bar association declaring and enforcing a strike and he will tell you he is personally against it but can’t withstand the pressure. You ask a candidate if he supports the cause of lawyers who wish to allot themselves a public park and he’ll say no. But in a hushed tone so none other constituent finds out. And he will still show up in support of lawyers seeking largess – offices or plots or other goodies – as a representative committed to their welfare.

We, for example, are riled up by the National Judicial Policy Making Committee’s decision to require exhaustion of alternative remedies (representation before SPs) before employing Sections 22A and B of the Criminal Procedure Code to have FIRs etc registered when the police refuse. Ancillary arguments aside, our underlying concern is economic: 22A/B are a complete practice area and any scheme that prevents such cases (over 61000 filed in district courts and over 41000 in high courts from 2017-19) will hurt those of us who engage in it.

There are similar concerns about proposals to redo the succession law. At the moment any household that loses a member has to file a suit to access movable property of the departed soul and separate suits for immovable property. This clogs up the court system, costs citizens time and money and is unnecessary. In uncontested cases, NADRA’s family tree should be a sufficient basis to access and distribute assets. But we’ve decided to fight tooth and nail, in the name of our livelihood, any change in any law that pushes people into the court system.

We are also miffed at model courts deciding cases in continuing sessions without granting adjournments. This will require us to change our work ethic. It will also adversely affect those of us who charge by the hearing. In this backdrop it would be one thing if bar councils had stepped up to retrain lawyers (in other areas of law) to mitigate the adverse affects of these changes, or had proposed staggered implementation to help lawyers adjust. Instead, bar councils demanded reversal of pro-reform decisions, pending which lawyers were instructed to strike.

The legal question that arises is this: what law vests in bar councils the power to order strikes and threaten to initiate disciplinary proceedings against lawyers who don’t partake? Neither the Legal Practitioners Act nor the Rules grant bar councils such authority. To the contrary, the rules and cannons of professional conduct that bar councils are meant to enforce seem to prohibit lawyers from engaging in strikes as a means of protest. After all, clients engage lawyers upon payment of fee for service obliging them to protect clients’ interests.

Rule 148 of the Legal Practitioners and Bar Council Rules states that, “an advocate shall not represent conflicting interests.” Thus in their conduct vis-à-vis clients lawyers can’t seek to promote their fraternity’s interest in observing strikes as part of collective bargaining while compromising a client’s interest which is contingent upon lawyers appearing and pleading the brief. Rule 166 (lawyers’ duty to the court) states that, “it is the duty of advocates to appear in court when a matter is called and if it is not so possible to make satisfactory alternative arrangements.”

In 2002, the Indian Supreme Court adjudicated the legality of lawyers going on strikes and bar councils calling for them and enforcing them in Ex-Captain Harish Uppal vs Union of India. It ruled that, “lawyers have no right to go on strike or give a call for boycott…lawyers holding vakalatnamas on behalf of their clients cannot not attend courts in pursuance to a call for strike or boycott…no lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out.”

The problem with bars becoming purveyors of self-interest and instruments of self-preservation is not just that they are an obstacle to legal reform but also that they become tools available for hire in intra-elite feuds. Consider the odious resolution passed by the Punjab Bar Council’s executive committee that sought to attack Justice Qazi Faez Isa. The legal fraternity’s saving grace was the unequivocal resolution passed by the Sindh Bar Associations and later the Pakistan Bar Council, disowning the Punjab Bar Council resolution. But is that enough?

While most of us understand that to survive in the jungle we need to be part of a pack, not everyone does. The best among us don’t submit to the law of the jungle. Patronage or largess or friends and family or flattery doesn’t influence them. These are folks that scare the system. Why? For they are unpredictable. They cannot be controlled. The system needs to threaten and intimidate them and attack their credibility to control their actions. This is the near-extinct category that Justice Isa falls in.

Part of the bar became the system’s pawn in this game. Will there be disciplinary action against those who did? Can we defy our tribal instincts once in a while? This is a moment of introspection for leaders of the bar and of the two lawyers’ groups that take turns controlling it. Where was the bar when Justice Saqib Nisar continued to abuse his power as CJP, making a mockery of rule of law? Why is the bar unable to fight for due process and implementation of Article 10A? Why is the judicial appointment and accountability process still opaque and arbitrary?

It is time to stop complying with the law of the jungle and start campaigning for rule of law.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu