Sunday, 5 July, 2020

Should lawyers defend alleged criminals?


Sampada A. Khatiwada

Even though legal practice is perceived as one of the noblest professions globally, lawyers have to ironically argue for the wrongdoers in witness boxes. Criminal defense attorneys have particularly been criticised for defending such individuals in the court. This naturally brings the conflict between the moral aspect and professional obligation of legal professionals to the fore.
The friction between the two lines of thoughts has become intense when a dozen of noted lawyers argued lawyers argued in support of Nepali Congress suspended lawmaker Mahommed Aftab Alam who is now in judicial custody on the charges of murdering around two dozen of persons and causing explosion that occurred in Rautahat 12 years ago. Former Attorney General Raman Shrestha, ex-president of Nepal Bar Association (NBA) Sher Bahadur KC and senior lawyers Gopal Krishna Ghimire, among others, pleaded on behalf of Alam and demanded his acquittal. They have run the gauntlet for showing disregard to moral values and not being accountable towards the society.
The question of morality is inevitable when it comes to legal profession. The moral responsibilities of lawyers have always been a subject of debate. While some argue that lawyers are the engineers of the society and should be responsible for maintaining ethical values and principles, others say that it is their professional duty to represent their clients in the court. They must carry out their professional responsibilities without engulfing in moral dilemma.
Senior advocate Gopal Krishna Ghimire, who had pleaded on behalf of Alam at Rautahat District Court said, "Morality unquestionably exists in legal profession in all ways. However, lawyers should also view their professional duty with utmost importance.”
As per Article 20 of the Constitution of Nepal, rights relating to justice of accused have been guaranteed. The accused holds the constitutional rights of consulting legal practitioners and right to be presumed as innocent until proven guilty. "It is our professional duty to guarantee the rights of the accused. Not representing our client is unethical instead,” said Ghimire.
Regardless of intensity and extent of crime the accused has been charged with, it is the duty of lawyers to represent him/her before the court so as to guarantee his/her constitutional rights.
"While representing Alam, we were just fulfilling our professional responsibilities," he said, adding that it was up to the judge to decide whether or not it was moral.
Ghimire said that if an accused became unable to hire a lawyer because of his/her immoral conduct, then the government itself provided court-remunerated lawyer to him/her. Mahommed Ajmal Amir Kasab, who had been convicted for being involved in 2008 Mumbai terror attack, was also represented by court-remunerated lawyer. Even though Kasab was sentenced to death, his constitutional rights of being represented before the court weren't violated. "By representing Alam, we are just following our professional religion, which keeps us neutral in terms of morality," said Ghimire.
Former Attorney General Dr. Yubaraj Sangroula said that the society had not understood the values and ethics of legal profession.
“Ethics is the base of legal profession and the legal practitioners are ethically bound to protect the rights and freedom of people. The issue of morality in legal profession continues to be debated until the society becomes fully educated," said Sangroula, who argued in support of the people victimised by Alam.
He said that there's no denying the lawyers were ethically bound to plead on behalf of the accused," said Sangroula. "Representation of clients however must be done on the basis of professional capacity and it should, in no way, demean the society."
Lawyers are supposed to carry out their professional duty on the basis of law. They cannot go beyond the law to fulfill their professional responsibilities. To abide by the law is also one of the certain duties of legal practitioners.
"Legal practitioners should always avoid conflict between the interest of their clients and that of the society."
Former attorney general and former president of NBA, who represented Alam have definitely gone against the professional morality of the profession, said Sangroula.
"Attorney general, be it former or present, holds the duty of representing the state. Also, president of NBA has access to all the information that the government holds," said Sangroula.
When advocates, who have already worked for public service, represent those who have been accused for committing offence against the nation, conflict arises between fulfilling yesterday's duty and today's professional responsibility, said Sangroula.
Therefore, it is the professional ethics of lawyers to represent those who have been accused of committing heinous crime, the question of moral dilemma doesn’t imply to it, said Sangroula.
However, it is against the professional morality for those advocates who have in past served for the government and public to plea in criminal cases, he added.
Gauri Pradhan, founder of Child Workers in Nepal Concerned Centre (CWIN), said that the legal practitioners had been facing dilemma of professionalism versus morality for years.
“Even though lawyers are professionally bound to address their clients, they need to be accountable towards the society, too,” said Pradhan.
The renowned lawyers, whom the society puts its faith, must dwell on how the society would react if they take up cases that are close to the violation of human rights, he added. Pradhan said, “It sounds an act of sheer hypocrisy on the part of lawyers, who previously led the civil societies and participated in various human rights and democratic movements, are now defending those who have allegedly committed serious crimes.”
Thus, it is not otherwise when the society questions the integrity of such lawyers, he added.


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