A Matter of Ethics: Lawyers' 'Right' to Boycott
Talha
There is no dispute that no person should be condemned unheard, and it is
the responsibility of lawyers to ensure that a fair hearing is given to any
persons accused of any crime, be it ordinary theft or crimes against
humanity. These are rules that are codified also in the Bar Council Rules
provided hereunder:
Section II Duty to the Client
11. An advocate is bound to accept any brief in the Courts or Tribunals or
before any other authorities in or before which he proposes to practise at a
fee consistent with his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief.
...
15. It shall be the duty of an advocate fearlessly to uphold the interests
of his client by all fair and honourable means without regard to any
unpleasant consequences to himself or any other. He shall defend a person
accused of a crime regardless of his personal opinion as to the guilt of the
accused, bearing in mind that his loyalty is to the law which requires that
no man should be convicted without adequate evidence.
What is of concern is that lawyers in Faizabad and Varanasi have passed
resolutions and have decided not to defend any person accused of terrorist
offences. There are a couple of lawyers who have stood against such stupid
resolutions, but they themselves had to face the 'consequences'. (See
newspaper reports below)
QUESTIONS FOR DISCUSSION
Whether such resolutions are justified in law ?
What is it that we as lawyers can/should do about this?
STORY 1
Print Story
UP lawyer takes up cases of terror accused, becomes colleagues' target
Manish Sahu
Posted online: Saturday, May 03, 2008 at 0028 hrs IST
LUCKNOW, MAY 2
On Wednesday, 56-year-old Mohammad Shoaib, a Lucknow-based lawyer,
faced a mob of lawyers at a Faizabad court. The police had to escort him out
and use the van that brought the accused from the jail to ferry him to
safety.
Shoaib has a tough job— he is fighting cases of terror suspects in a
state where the bar association has banned lawyers from appearing for them.
Worse, he is also appearing for suspects in the serial blasts which targeted
the lawyers allegedly for refusing to take up terror cases. In Faizabad on
Wednesday, Shoaib was appearing on behalf of the two accused in the
November-23 serial blasts.
Shoaib has now decided to approach the Lucknow Bench of the Allahabad
High Court with a petition to transfer the case to another district.
Faizabad Bar Association secretary Mansoor Elahi said: "The lawyers were
irked as a resolution was passed by the bar that no lawyer would take up the
case of these persons".
A few days ago, some Barabanki lawyers had issued threats to Shoaib,
asking him to withdraw from the case. Shoaib had withdrawn his name,
returned to Lucknow and filed a complaint with a senior judge of the Lucknow
Bench against the lawyers' boycott resolutions.
Later, following requests from the families of the accused, he decided
to take up their case again. "I know it is impossible for them to find
another lawyer," he said.
It was after the November 23 serial blasts that the bar association
imposed the ban. But Shoaib did not accept this decision as "it violated the
basic right of every person to defend himself in court".
His popularity among the terror accused increased after he demolished
the police theory that Kolkata-based Aftab Alam Ansari was a
Harkat-ul-Jehad-al-Islami terrorist. The Special Task Force of UP Police had
made Ansari an accused in the serial blasts case. Mohammad Shoaib fought his
case. Later, the police declared that it was a case of mistaken identity and
Ansari was released after spending 22 days in jail.
Then the families of Ansari's co-accused, Mohammad Khalid Mujhahid and
Hakeem Mohammad Tariq, approached him. Khalid Mujahid is a resident of
Jaunpur district and Tariq runs a dispensary in Sarai Meer area in Azamgarh.
Both are accused in the November 23 serial blasts.
Shaoib said while the police said they had arrested the men from
Barabanki Railway Station in December, "their families said they were picked
up from their native places." The families claimed that both men are
innocent, and the state government later ordered an inquiry by a retired
judge to look into their complaint.
Shoaib is also fighting cases of two other accused of the November 23
serial blasts, Mohammad Akhtar and Sajjad-Ur-Rehamn, both from Jammu, whose
families also "approached me when they heard about the case of Aftab Alam
Ansari". The families of Naushad and Yaqoob, who were arrested in Lucknow
last June, also approached him.
For Shoaib, fighting cases of terror suspects is a matter of
principle, because, he says, every person is innocent until proved guilty.
Since most of the accused are poor, he just charges the expenses from them.
"It is the duty of lawyers to help helpless people on humanitarian ground.
Let the court decide if the accused is innocent or guilty. Associations
aren't
always right and we should know our duties," he added.
STORY 2
Muslim terror suspects' lawyer attacked by Faizabad advocates
Submitted by Tarique on Tue, 06/17/2008 - 17:59.
a.. Indian Muslim
By TwoCircles.net staff reporter,
Lucknow: Lawyers associated with the Faizabad Bar Association suddenly went
berserk and started hooliganism when advocate Jamal Ahmad, who has filed an
application in Faizabad District Court to plead in the case of bombings at
some district courts in U.P., turned up in the court.
In the first week of June, advocate Jamal Ahmad had filed an application in
the district court to plead in the case of bombings inside the court
premises in Faizabad, Lucknow and Varanasi on 23rd November, 2007, by
alleged Muslim 'terrorists' Hakim Tariq Qasimi, Maulana Khalid Mujahid,
Sajjadur Rahman, Mohammad Akhtar and others. This case will be heard in the
court of Faizabad's additional district and session judge on 26th June 2008.
Following the condemnation from the Bar Council of the boycott of the case
by Bar Associations in its recent meeting in Allahabad, about one dozen
Hindu and Muslim lawyers from Allahabad, Lucknow, Faizabad and Barabanki had
sought permission from the court to take up the case.
But defying all these developments, about one hundred lawyers of Faizabad
District Court led by the general secretary of Faizabad Bar Association and
the Member of Legislative Assembly (MLA) Mansoor Ilahi, attacked advocate
Jamal Ahmad and ransacked his office. A group of miscreants also warned him
that he should dissociate himself with this case or be prepared to face
direct action by the lawyers.
The vandalism has been reported to Faizabad police superintendent,
implicating advocates Mansoor Ilahi and Pandey, though Jamal Ahmad could
neither identify the culprits nor give their addresses. Police have been
deployed in the court premises after the incident. Meanwhile, advocate Jamal
Ahmad has demanded immediate action against the culprits.