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Legal Needs [This Network is not currently active and cannot accept new posts] | | Topics
Duty -versus- ConscienceViews: 144
Dec 19, 2008 12:45 am re: Duty -versus- Conscience

John Dierckx
There are two things here that struck my attention: the courageous action of one lawyer in deciding that his conscience did not allow him to defend a terrorist and second the unanimous resolution by the local Bar Council in Mumbay not to defend a terrorist.

Now let’s start with the individual decision not to defend this terrorist. There are arguments pro and contra such an approach bit it cannot be denied that if you are emotionally involved in such a way, you may very well not be able to do a great job anyway. But that is the personal and emotional side of things. There is however a professional side to this dilemma and that is that regardless of whether you are a terrorist or a ‘normal’ criminal, you have a human right to an impartial trial and that entails having a defence counsel. While I may feel sympathy for the individual lawyer choosing to risk his practicing license and stick to his conscience; at the same time the article is unclear about the reasoning. Or let me say it like this, I do not understand it.

One could ask oneself: what makes this terrorist different than another murderer, or even serial killer. Or what to think of big shot corporate who, instead of bombing people, pollute the environment with toxic waste to save a few dollars and leave a legacy of cancer patients for the coming generations. What to think of paedophiles that raped or exploited children: do they deserve a defence counsel? Is it really possible to make a choice here other than on personal perspectives, and is it not exactly that what you leave at home if you choose to be a criminal; defence lawyer? The individual lawyer as I understood the email, was aware that his client actually did it and made a moral and spiritual choice on that basis. Professionally I may not agree but who am I to judge this lawyer’s personal choices: and in all fairness he was willing to pay the price for that (actually similar to the accused terrorist).

The Resolution of the Bar Council
What surprised me more is the decision by the Bar Council, cleverly trying to distract the big issues by making a distinction between “an act of terror” and a “criminal act”. Without a doubt one could fill books with justifying such a distinction and decision making based thereon. But in all fairness, is this not a matter of fooling yourself and hiding behind a big wall of legalese to justify equally personal choices. I think it is fair to say that in general, lawyers view the law with contempt. Let me explain. I suggest that it is accurate to claim that lawyers generally see the law for what it really is: contingent, negotiable and more than once flawed. Given such an assumed perspective and trained at large to take advantage of rules for their clients, is it not virtually inevitable that lawyers will approach the rules that govern their own conduct in a similar fashion? In addition, when assessing their own conduct against the rules that bind them they inevitably lack the distance and objectivity to professionally assess the legal, let alone ethical or moral merits of their behaviour. I can just see how this happened in this case: where a terrorist act was redefined as an “act of terror” not covered by the rules that bind these lawyers to defend a “criminal”.

Rule of Law and Natural Justice
T R S Allan in Law, Liberty and Justice (Clarendon Press, Oxford, 1993, p 21) suggests that,
“the rule of law is an amalgam of standards, expectations and aspirations: it encompasses traditional ideas about liberty and natural justice, and, more generally, ideas about the requirements of justice and fairness in the relations between government and governed”
Rules, which are implied here, are not just generalisations about human nature, but are often specific commands that a sovereign power issues to its subjects; the breach of a rule could invite the use of legal sanctions. To guard against arbitrary use of this power we invented the “rule of law”. The idea behind a ‘government of laws’ is that dealing with particular problems by applying general rules constitutes an important check upon arbitrary behaviour. No stronger is this embodied than in the Latin maxim “nulla poena sine lege” (no punishment without law) that views law, and the rule of law, as a safeguard against the arbitrary power of a sovereign.
The idea of general rules leads us to the concept of formal equality. This formal requirement is an important safeguard against arbitrary behaviour. It lies at the root of the conception that all individuals are entitled to the equal protection of the laws. A challenge to the idea of formal equality arises whenever there is unequal treatment between groups.
The second important aspect of the rule of law is natural justice and/or due process of law. The procedural guarantees embodied in natural justice are important barriers to arbitrary and unpredictable behaviour by judges who are charged with the implementation of the rules set out by a sovereign, be it a single individual or a modern government. The first of the rules of natural justice is audi alteram partem or ‘hear the other party’. In a criminal case the burden of proof is on the prosecution. The prosecution has to give notice of the charges the accused faces and present the evidence that shows that the accused has been in violation of the law: is “guilty” according to the law.
Accused persons have the right to defend themselves. So, two voices are heard, not just one. Beyond that, there is a set of issues about exactly what kind of hearing is required for which kind of case.
The second requirement of natural justice is nemo judex in sua causa (no one should be a judge in his own cause). Therefore judges must be unbiased. This requirement is so fundamental that John Locke gave it as one of the reasons for leaving the state of nature in his Second Treatise on Government. It is not too hard to imagine why we are (to be) worried about bias: it corrupts outcomes!
While more requirements may be discussed in relation to the rule of law, I guess in the context of this article we can leave it to what was discussed above. The rule of law is part of an honourable tradition, and does not function well when its substantive commitments are not respected. It should be embraced by anyone who understands that stability of expectations is one of the prime conditions for a successful society and is undermined by arbitrary government behaviour. Therefore we need standards; in legislation, administration and adjudication. They are fundamental to the operation of our legal institutions.
This brings us back to the conscience of the lawyer and the resolution of the Council.
What I am trying to say here is that it is very hard to make a choice here other than based on emotional and highly personal perspectives. At the same time basing such a choice on conscience, is something hard for me to understand as someone with a legal background. How can one justify a choice that implies that for some people the rule of law and natural justice do no longer apply?

The same applies for the resolution of the council. However they devised a distraction: redefining a criminal act to what was defined an “act of terror”, to which their rules regarding professional duties no longer apply. I guess that is a perfect example of treating the law and perhaps even the rule of law and natural justice as something contingent and negotiable. The ultimate result of the decision is in my view the expression of the view that for terrorists the rule of law no longer applies, packaged in opportunistic, purpose driven reasoning and interpretation of the law.

In effect this resolution is denying a specific group from their rights and entitlements under the law, the rule of law and natural justice: the fundaments of modern society. Does that not make those lawyers equally arbitrary as a corrupted absolute sovereign that does as it pleases? Creative reasoning and interpretation of the law is not going to change that.

The individual lawyer may say NO, and pay the price for his professional failing of not being able to uphold the rule of law and natural justice (losing his license) because he cannot reconcile his personal conscience with his professional duty.

The Council on the other hand is hiding behind a wall of legalese to justify what cannot be justified in a legal sense and can only lead to bias and with that corrupted outcomes of the legal system. Let’s be honest for one second, can we really distinguish between a horrible “crime” and an “act of terror”? And even if we could: what justifies any claim that a terrorist is no longer entitled to what any human in modern society is entitled to? Is this denial of basic human rights not implicitly saying: “we are no longer considering you a human with all the rights that come with it?” Whether we like it or not, rule of law and natural justice imply that we make no exceptions.

In all honesty, I cannot begin to imagine the horror and disgust that must come with such terrorist actions. Any act of violence against another human in my view is a flaw in our humanity, regardless of whether we are talking about harassment, violence, murder, or even acts that are not considered crimes necessarily but are just as devastating (pollution, abuse of resources) and terrorist acts alike.

At the same time, denying the perpetrators – in all their different shapes and sizes – their basic and fundamental human rights is in my view a breach of the law, rule of law and natural justice that almost equals any terrorist act, because it is aimed at undermining the root of a modern society in which the rule of law and natural justice are supposed to be defending us against arbitrary use of power. Whether we are talking about a murder, a serial murder, environmental pollution and abuse of resources with deaths as a result or a terrorist attack, in essence they are all grave infringements on human rights to life, health, safety and security for which we have designed sanctions and appropriate procedures to establish that someone is actually guilty in the legal sense, whether there are circumstances to consider in that that may have an effect of the level of guilt or appropriate sanction. As a defence lawyer is it not your duty that justice is done by safeguarding your client’s rightful interests within the boundaries of the law? Is that not what the rule of law and natural justice demand from a lawyer? Is that not what you are actually serving?

And on a practical level, I could just see it: protected by legal privilege I confess to my lawyer. “Sorry ahum, this is not crime bit an act of terror you are confessing to me. I can no longer defend you.” Four lawyers later and finally in court, what will the first question be? ... “ Mr X, you were fired by three lawyers before the one that is now representing you. Is there any act of terror(ism) you’d like to confess?

I can imagine being a lawyer and having my conscience come before duty and pay the price for that. The terrorist broke the same rule of law by doing what he did. But hiding behind creative interpretation of the law, to deny someone his basic human rights, to deny him his humanity; where does that leave a legal profession?

Private Reply to John Dierckx (new win)

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