The lawyers in our country, especially since the rise and fall of the celebrated Lawyer’s Movement, enjoy a platform of privilege in our society. As experts of law and the Constitution, they are a permanent feature of daily news and talk-shows, playing an instrumental role in shaping the prism through which we view democracy and its governance. Inside our cathedrals of justice, lawyers are the custodians of our Constitution. As officers of the court, they are sworn to uphold our constitutional mandate, and defend the sacred freedoms of the poor, tired, and hungry masses of this land.
Sadly, this privileged place in society has also provided lawyers with a sort of immunity from the reach and empire of law itself. Over the past few years, we have seen black coat hooligans burn tires to block city roads, thrash police officials, and harass media personnel. And inside our courtrooms, members of the legal fraternity have intimidated judges and vandalized our revered courts of law – all with impunity from prosecution.
This nauseating decadence of the legal fraternity is frequently condoned on the pretext that misconduct, among lawyers, is restricted to only a small fraction of the young and restless. We are told that senior lawyers and advocates, the citadels of our legal fraternity, are above all shades of professional and personal misconduct. That their word, and arguments on points and law and the Constitution, knits the very spirit of freedoms into the fabric of our democracy.
The fortitude of these assertions, however, came crashing down this week, during the course of the Musharraf Trial.
As it turns out: the team of defence counsels of General (R) Musharraf, filed an application before the Special Court, arguing that, since the actions of Musharraf were done during his tenure as an Army office, he should be tried through a court martial, in accordance with Pakistan Army (Amendment) Act of 1977 –which brought the entire civilian population within the ambit of the Army Act, allowing civilians to be tried through army courts. In making this application, the learned senior counsels ‘forgot’ to disclose to the Special Court that the said Act of 1977 was declared to be unconstitutional in the celebrated case of Darwesh Arbey v. Federation of Pakistan (PLD 1980 Lahore 206), in which a full bench of the Lahore High Court ruled that the 1977 Act equated to perpetrating “fraud” on the Constitution and the law. To add insult to injury, the defence counsels also forgot to mention that the 1977 Act had (redundantly) been repealed through the Federal Law (Revision and Declaration) Ordinance, 1981, and was thus no longer in force.
All this would perhaps have been condonable, had it occurred due to a simple (bona fide) mistake as to the current status of the law. This, however, is not the case. To the contrary, one of the members of Musharraf’s legal team was the Petitioner’s counsel in the Darwesh Arbey case, and another member of the defence team was the Attorney General of Pakistan at the time that the 1977 Act was repealed.
This conduct, by senior members of Musharraf’s legal team is bafflingly indefensible. There can be no doubt that Musharraf’s legal counsels were well aware that their representation and arguments before the Special Court were irrefutably disingenuous. In fact, their attempt to argue the application equated to defrauding the Court, and misleading the enterprise of law.
Within the governing code of conduct of the esteemed legal profession, under the Legal Practitioners and Bar Council’s Act, 1973, this attempt by the defence counsels amounts to misconduct. Specifically, Rule 161 of the Pakistan Legal Practitioners & Bar Councils Rules, 1976, stipulates that an Advocate who “intentionally misquote[s]” to a court, “or with knowledge of its invalidity and without disclosing such knowledge cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional” shall be subject to disciplinary proceedings, including the possibility of revocation of the license to appear before a court.
But even away from the morals of advocacy, there is a larger oath that binds all lawyers in our legal dispensation. Let us be clear that, even in the discharge of their professional responsibilities, all lawyers are governed by Article 5 of the Constitution, which mandates that “obedience to the Constitution and the law is the inviolable obligation” of every individual in Pakistan. As such, legal arguments that attempt to justify and validate unconstitutional measures – regardless of what supra-constitutional grund norm is available – amount to a brazen contravention of the “inviolable” obligation that we have all sworn fidelity to. Defending and ‘simply presenting’ the case of a client, is no justification for violating this oath.
It is time that the legal fraternity learns that their first and foremost responsibility is not to any person, or ideology, but to the empire of law itself. That in the scheme of things, the trajectory of our jurisprudence, written by the pen of the judges, but in the words of the lawyers, can only be best served if the desire to protect our client’s interest remains confined to the morality and mandate of the law. That being an integral voice in the dispensation of justice is a solemn responsibility. One that reflects and imbibes some fraction of the divine attribute of doing ‘Adl’, in accordance with law, among fellow human beings.
This responsibility – nay, this sacred oath – cannot be molested at the hands of individual gains and personal biases. That even if the Bar Councils remain powerless in taking action on the thousands of applications pending before them, or the Supreme Judicial Council remains impotent in enforcing accountability for judicial conduct – that one day we will find ourselves before His seat of power. In the shade of His justice. A justice that is neither blind nor biased.
And whatever insincere excuse we might be able to concoct for ourselves today, will melt away in the light of truth. And at the edge of that cliff where excuses run out, we will have to face ourselves, and the devil within.
n The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.