We seek inspiration from the fact that this country was founded by a lawyer who viewed constitutionalism and the law as a source of protection for ordinary people and those practising the law as facilitators of the rights of others and not apologists for mobocracy.
I must start this week with an unconditional apology to victims of the Punjab Institute of Cardiology, to patients and their families who must have felt terror in their hearts as a mob of lawyers pillaged a place people visit in desperate times to seek life; to students aspiring to become lawyers in the belief that we are purveyors of rule of law; and to fellow citizens who might have thought that the considered response of our fraternity after the shameful event would be one of remorse and introspection and not defence of the indefensible.
I owe this apology as a lawyer on behalf of many in the legal fraternity who are as pained and shocked by the attack on PIC as the rest of this country and have been disappointed by the response of our elected councils and associations that have failed to issue one. We seek inspiration from the fact that this country was founded by a lawyer who viewed constitutionalism and the law as a source of protection for ordinary people and those practising the law as facilitators of the rights of others and not apologists for mobocracy. But we have let ourselves down.
We take pride in the fact that all ideological movements in Pakistan have gained from the support of members of our community, which has been at the forefront of opposing dictatorships, fighting against autocratic tendencies of rulers and urging expansion of the fundamental rights of citizens. When we fought to restore judges, we were fighting for the independence of the judiciary, and not for a fiefdom for lawyers. And what a fall from grace and descent into tribalism it’s been since.
Hobbes had called reason the soul of law. It pains one to see that those trained in the practice of law (which is meant to be rooted in morality), and having honed the skills to distinguish right from wrong, are being perceived by our society as a mafia. Our job is to wade through legal texts to see what the law says and how it ought to be read to protect the rightful interests of our clients. Yet, when it comes to personal interests, we act in a manner devoid of what the law says or notions of right and wrong. This contradiction between the law and our actions is mind-boggling.
But is it? We are part of a society where might is right is the Grundnorm. Should we, the lawyers, be expected to rise above the fray and fight for a move from rule of might to rule of law? Yes, in an ideal world. But even in the real world, the tragic fact in the PIC incident is that where everyone in society is able to tell right from wrong, our self-interest as a fraternity is blinding us from doing so. What is unintelligent is that in being obtuse enough to not acknowledge the gravity of the anger this incident has generated, our tribalism is now hurting our self-interest.
Since the lawyers’ movement, our decline has been steady. That was a legitimate movement to protest the actions of the state. The right to protest is a legitimate right, but its exercise must be balanced such that it doesn’t encroach upon the fundamental rights of others. Calls for protest are calls to the morality and sense of fairness of fellow beings. The distinction between peaceful protest against misuse of state authority on the one hand and threat of coercion and violence to protect one’s turf on the other is thus clear.
The PIC attack was part of a gang war between young doctors and lawyers. (Doctors aren’t blameless here, but no matter what the provocation, the lawyers’ response was unjustifiable.) The mistreatment of a lawyer by doctors or their minions hurt the lawyers’ egos and the video with a young doctor seen pouring scorn on lawyers in characteristic Lahori style added fuel to fire. Some of our fellows in Lahore successfully provoked others into a state of frenzy on the basis that the honour of the lawyers’ tribe had been besmirched and revenge was called for.
The attack on the PIC was premeditated. The lawyers degenerated into a mob. But in picking the target they forgot that even gang wars have unwritten rules, such as not making a hospital the venue of the fight. What the lawyers’ did was a long time coming, after previous attacks on almost everyone (clients, police, media, judges etc) produced no adverse consequences. The Sher Zaman case where a bar president undermined the authority of high judicial offices, with the then CJP Saqib Nisar coming to our tribe’s rescue, was a precursor to something uglier.
So the PIC disaster has been in the making for a while. But what is horrifying is the take of our bar leadership in the aftermath. Most fraternities driven by a sense of loyalty and esprit de corps have a common sense rule: they will stand with each member till such time that they are caught with pants down, in which case the collective interest of the fraternity in its own goodwill and survival will trump the interest of individual members. By refusing to side either with principle or this common sense rule, our bar leadership has scored a self-goal.
Our bar councils could have issued an apology, offered to assist in ensuring that the law must take its course against all involved in the crime, and expressed resolve to use its authority under the Legal Practitioners and Bar Councils Act to also take disciplinary action against the ruffians amongst us. Whether driven by principle or self-interest, such response would have provided face-saving and left the bar with some leverage in how things unfold. But in its response the bar leadership seemed driven by the same tribal mindset that produced the PIC incident.
The Punjab Bar Council issued a strike call even as the horrors of the PIC attack were unfolding on TV screens. In trying to enforce strikes the next morning, office-holders of bar associations policed courts, forced fellow lawyers not to attend hearings and threatened them with dire consequences if they did. In doing so, they defied the other common sense rule fraternities abide by: when under attack from outside, come up with a common denominator to help close ranks as opposed to provoking infighting.
The Pakistan Bar Council and provincial bar councils are statutory bodies. They exercise authority vested in them under the law. It remains to be determined if they are vested with authority: (i) to call strikes against court proceedings that fetter citizens’ right of access to justice; (ii) to enforce strikes by physically forcing lawyers to not appeal before courts and pursue cases of clients that they hold briefs for; and (iii) to initiate legal proceedings against lawyers who refuse to abide by a strike call in breach of obligations under the legal practitioners’ code.
Rule of law and rule of force can’t go together. We can either be armed with legal arguments and principles or we can be backed by mob force and threats of use of force. It is time for the legal fraternity to make that choice. If we pick mob force as our instrument of choice, we must remember that, devoid of moral authority, whoever wields maximum brute force rules the roost. As lawyers, we have historically fought authoritarianism wherein monopoly over force has been used to usurp state authority and determine the manner of its exercise.
It is not too late for our bar councils and bar associations to engage in damage control. As officers of the law, our job is to engage in dispute resolution and not dispute creation. It is completely legitimate for the Pakistan Bar Council to demand that any lawyers accused in the PIC incident must be dealt with in accordance with the law, must be afforded due process and must not be mistreated or tortured in custody. But to state that we will shut down courts unless our colleagues are released and members of the rival gang are arrested smacks of tribalism.
We don’t stand for rule of law if we seek exceptionalism when it comes to us and our own. And if our current bar leadership is unwilling to comprehend the scope of this challenge and the need for introspection and self-accountability, there is a need for those in our fraternity who believe in rule of law but don’t engage with bar politics to step out of their cocoons. The PIC incident has been an ugly shock. It requires us to take a position on who we are and what we stand for as lawyers.
The writer is a lawyer based in Islamabad.