Lawyers’ ethics

By I.A Rehman  

WHEN a few lawyers chose to attack and deride Aitzaz Ahsan for defending Yousuf Raza Gilani in the Supreme Court where the prime minister had been summoned they betrayed another streak of intolerance that some of them have been displaying since their movement of 2007-2009.
The lawyers’ resort to violence — against court functionaries and fellow lawyers — did not raise their credit as defenders of the rule of law. Most people of goodwill for lawyers tried to overlook such incidents as signs of youthful exuberance in a fraternity that includes many sticklers for legal formalities and social responsibilities.
The decision by lawyers, however small their number, to mock one of the heroes of their recent movement cannot be passed over because it raises three issues: i) the status of the apex court; ii) every person’s right to defence; and iii) lawyers’ ethics.
According to media reports, the hecklers were not content with shouting anti-Aitzaz slogans on the court premises, they also raised a familiar chant in solidarity with the honourable chief justice of Pakistan. The implication was clear — that Aitzaz Ahsan had turned against the chief justice. In other words, they transformed the head of the judicial hierarchy into a party to an issue before the court. Such unwise friends of the judiciary cause it much greater embarrassment and harm than the effects of principled dissent.
We may have moved beyond the tradition of good old days when those who praised judges and their judgments were held as much guilty of contempt as those who criticised them — and a good judge (retired) of the Lahore High court was convicted of that — but there is a limit to which the judiciary can be allowed to be politicised, even made controversial, by partisans of one cause or another who pen irrelevant panegyrics.
The second issue, namely, the right of every person to be defended by a lawyer of his choice, also is quite important. Every respondent/ defendant/ accused has this fundamental right, however serious the charge against him. It is in a hazy recognition of this right that the law obliges the state to provide a defence counsel to anyone accused of murder, if he cannot afford to engage one himself.
Hazy recognition of a solemn principle because for one thing the counsel so arranged is often not one of the defendant’s choice and, for another, the state does not recognise a poor citizen’s right to a counsel at its expense unless he takes a fellow being’s
life. Even the war criminals arraigned before the Nuremberg tribunal were not denied defence, in theory at least.
A doctor will not refuse to attend to a man wounded by police fire on the ground that he is a dacoit, nor is an enemy soldier left to die on the battlefield. Likewise no lawyer worth his salt will refuse to defend a person in conflict with the law. No counsel is believed to be a party to, or approver of, his client’s offence. M. Sleem and Khwaja Sultan were brilliant lawyers widely acclaimed for their defence skills in murder cases, and they will be remembered for long for their uprightness and sense of propriety in dealing with both courts and their clients.
There can be a few legitimate reasons for a lawyer to decline a particular brief — lack of time, lack of expertise in the relevant branch of the law, the lawyer’s inability to travel to the place of trial, or the client’s inability to pay the lawyer’s fees. But the nature of allegations against a person is not one of fair excuses. The consequences of a lawyer’s declining anyone help in view of the nature of charges against him can be extremely grave. It can mean denial of presumption of the accused’s innocence and may amount to condemning a person without trial.
Already we have seen that poor persons, especially those belonging to under-privileged communities, cannot find lawyers to defend them in cases based on belief. If intolerance of this variety grows the cause of justice in Pakistan will suffer grievous harm. In retrospect, it seems forcing a lawyer of the stature of Rashid Rizvi to give up a client was not a good idea at all.
Why shouldn’t a lawyer of Aitzaz Ahsan’s rank agree to defend a person charged with contempt, especially when he happens to have been elected to parliament by thousands of people and to the prime minister’s office by a majority of the members of the National Assembly? Whatever Gilani’s political sins may be, nothing can extinguish his right to the best legal advice he can find.
Before Aitzaz Ahsan became the target of the black coats’ attack quite a few people, including some lawyers, had deemed it prudent to criticise Asma Jahangir for taking up Husain Haqqani’s defence. This is quite an extraordinary departure from professional ethics.
We had an attorney-general who defended a murder accused before a sessions judge in Lahore and another attorney-general-cum-law minister who appeared for a party in a rent case and before a judge whose status could be altered by him.
Nobody has raised his eyebrows at seeing a former high court chief justice and another former judge who retired many years ago donning lawyers’ gowns to defend the killer of Salmaan Taseer. Nobody has questioned Akram Sheikh’s right to represent a person whose culpability for maligning the government and the armed forces of Pakistan both is patently on record and which needs no corroboration.
If Aitzaz Ahsan’s erstwhile followers had any notions about his change of heart they should have welcomed the fact that after wandering around alien arenas he had returned to their fold, where he all the time belonged.
Quite obviously, those who take exception to a lawyer’s acceptance of any brief take a very narrow view of legal counsel’s role. Every lawyer is, or should consider himself to be, a friend of the court. Contrary to the view entertained by misguided puritans, a lawyer’s function is not to get a criminal off the hook, his job is either to help a court determine a person’s guilt beyond any shadow of doubt or to ensure that a person is not punished for anything more than what the court, on the basis of evidence led before it, can find him responsible for.
The role of lawyers in helping courts to dispense justice even-handedly becomes more than ordinarily important if a defendant is declared guilty before trial — by policemen who kill their prey instead of hauling him before a judicial forum, by politicians who condemn suspects to be hanged by lamp posts without trial, and by media persons who degrade their calling by turning themselves into judges and prosecutors for selfish interest. In such cases, lawyers simply cannot disregard their professional ethics. So let all lawyers follow their own counsel.
Tailpiece: The Supreme Court order that the government should give in writing its pledge not to take action against the military top brass should cause immense relief in the democratic camp. Any one of its members can now pray for a written undertaking from the traditional coup-makers that they will never again sack a democratically elected government and that too without a show-cause notice.

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Suffering of ‘the other’

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By Andrew Ng

MY grandfather Lau Yu-Chung learned of the Japanese attack on Pearl Harbour and the subsequent invasion of Hong Kong on Dec 9, 1941 from the local school principal Mr Wong, who arrived at his door in a panic exclaiming “we’re going to be next!”
Living in Sandakan, a small port in British North Borneo (now Malaysia), Lau would spend the next three and a half years hiding from the Imperial Japanese Army in the interior rainforest, living off yams and what he could barter for them.
As a Canadian diplomat in Pakistan, I recently joined the international commemoration of the 10th anniversary of 9/11 in solidarity with victims of terrorism around the world, including the tens of thousands here in Pakistan.
In Pakistan, I have come to fully appreciate that sorrow is often better exchanged than exported. In that spirit, as last month marked the 70th anniversary of Dec 7, 1941, that ‘day of infamy’ that ended in the death of 2,404 Americans at Pearl Harbour, it is worth recounting that Pearl Harbour also marked the onset of the Imperial Japanese occupation of Hong Kong and vast parts of Southeast Asia. Thus I share my grandfather’s story.
In December 1941, my grandfather had been working for a year as a consular officer for the Chinese Kuomintang government in Sandakan, Borneo, where the approximately 70,000 ethnic Chinese made up the majority. As news of the Japanese sweep into Hong Kong and across Southeast Asia spread, many Sandakan residents chose to bury their valuables and flee their homes, some for the thick jungle of the interior, rather than face life under Japanese occupation. On Jan 19, 1942, 43 days after Pearl Harbour, Japanese imperial forces arrived in Sandakan, meeting no resistance, proving right the local principal Mr. Wong. Before the invasion, Sandakan’s defence forces numbered 99 volunteers, few of whom had seen any combat. The control of British North Borneo was important for Japan due to its strategic location along the South China Sea, guarding the Malacca Straits to the west and, as in the case of Sandakan, facing the Philippines to the east. The area was also rich in natural resources needed to fuel the Japanese war machine.
Upon arrival, Japanese forces interned the staff of the Chinese consulate, including the Chinese consul general, who would later be summarily executed, and my grandfather. Upon release, Lau initially moved his wife and infant son and daughter into a small hut on a rubber plantation on the outskirts of town, but it became readily apparent that it would take more to evade surveillance.
Following his friends, Lau hired a boat and took his family 50km upstream to a small settlement called Labuk, where a handful of Chinese families had started eking out an existence in hiding.
Soon enough, disguised as an aboriginal, Lau set about clearing land for cultivation. Experimenting with a variety of crops, Lau achieved the most success with yams, eventually accumulating enough to barter with aboriginals for a wooden canoe.
During this time, Lau’s wife gave birth to a third son in the rainforest, with Lau himself cutting the umbilical cord.
Labuk would not be remote, nor safe enough. Three years after his escape, hearing allied warplanes overhead, my grandfather and three friends began to reconnoitre the situation by canoe. As they returned to Labuk, Lau recognised a Japanese soldier and local policeman waiting for him. A furious pursuit in canoes ensued, and after an hour of paddling through heavy rainfall, the four eluded capture and slept the night in the mud.
The next day, Lau returned to Labuk to find that his pregnant wife and two of his children had been executed by the Japanese officer. Only one of his children, Kan, survived — thanks to the heroism of another neighbour.
The fate of my grandfather’s family was not unlike that of so many families victimised by the Japanese occupation. In fact, my grandfather’s story was so typical, it was rarely shared with anyone, including myself. I only met him once as a child, and my mother — who, as a girl, escaped communist China with him — was reluctant to share much about his life.
Like many Chinese, my mother avoided recounting sad family histories, particularly given the relentless suffering during the five decades spanning the civil war, Japanese occupation, Korean War, Great Leap Forward and Cultural Revolution. It was only after my grandfather’s death that I pieced together his story from a short article he wrote for an alumni publication and some months digging through archives.
The importance of commemorating together the events of Pearl Harbour and the successive Japanese occupation of much of Southeast Asia is perhaps instructive for the current moment in Pakistan. Especially as Pakistan lurches from crisis to crisis, the capacity and patience — of Pakistanis and outsiders alike — to appreciate the suffering of ‘the other’ is critical to moving forward.
The writer is a Canadian diplomat based in Islamabad. His views do not necessarily represent those of his government.

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