Are Delhi lawyers jeopardising justice?

The Lawyers Association's refusal to defend the men accused of the Delhi gang rape might be one step too far.

The recent shocking case of the rape and murder of a young medical student in India has sparked widespread debate about the country’s treatment of women. But it also raises questions over the ethics of their legal code: Recent reports have revealed that the 2500 members of the Lawyers Association in the district of Saket have actively refused to represent the six men accused of the crime in light of the public outcry it has caused worldwide.

Perhaps this is unsurprising, given that passions are inflamed to the degree that protestors have called for the death penalty. But what are the repercussions this legal protest might have for justice in India?

In the UK, barristers are regulated by the Bar Standards Board, which sets out that:

 A barrister who supplies advocacy services must not withhold those services on the ground that the nature of the case is objectionable to him or to any section of the public.

The regulations go on to state that a barrister must comply with the "Cab-rank rule," which means that they must accept any instructions from a field in which they profess to practice. India’s regulations are, interestingly, not too dissimilar. The Bar Council of India’s (BCI) states that an advocate "is bound to accept any brief".

This rule is qualified by an addition that says that “special circumstances may justify his refusal to accept a particular brief”. But what constitutes special enough circumstances to jeopardise justice? The right to a fair trial falls under Article 10 of the Universal Declaration of Human Rights; if it’s deemed important enough to feature there then its merit can’t be just be dismissed.

AFP reported  that one member of the Saket District Bar Council, Sanjay Kumar, spoke on behalf of the lawyers:

"We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case".

He goes on to say that the advocates have taken the decision to "stay away" from the case in order to guarantee "speedy justice". This seems outrageous: justice should be just. It should be allowed to take its course naturally, without intervening factors that might artificially achieve it.

One lawyer who has come forward to represent two of the accused, Manohar Lal Sharma, has been insistent that his clients should have access to a fair trial. Sadly this lawyer is acting with a different set of warped motivations. He declared that "I have not seen a single incident or example of rape with a respected lady", placing the blame for her death “wholly” on the victim. Sharma not only personifies the serious issues India has with its perception of women, but also displays a clear misunderstanding amongst its lawyers.

Advocates involved in this case have openly passed judgement on the accused: the Saket District Lawyers’ Association made an assumption of guilt, while Manohar Lal Sharma deemed the men innocent, and is therefore willing to defend them. What is unfortunately forgotten amongst all this is that it isn’t a lawyer’s job to make judgement - that is up to the judge and jury.

If recent reports that the accused are being tortured in order to force a guilty plea are true, then a fair trial is even more imperative for the sake of justice. This in no way suggests that the accused should be emancipated without trial, or that they have not likely done wrong, but it is important to remember that the stance should be ‘innocent until proven guilty’. How can justice be served and guilty men adequately punished if a fair trial has not ensued?

Protesters demonstrating against rape in Delhi. Photograph: Getty Images
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Why did the Tunisian National Dialogue Quartet win this year's Nobel Peace Prize?

Thanks to Tunisia, it is no longer possible to argue that the Middle East and North Africa are inherently undemocratic or prone to violence.

It is a fitting that in a tumultuous year for global peacemaking, the Nobel Peace Prize has been awarded to the little-known Tunisian National Dialogue Quartet, a coalition made up of the union federation UGTT, the employers’ institute, the Tunisian human rights league and the order of lawyers . Over the past few years, the Quartet has been quietly shepherded in democracy to the country that lit the fuse of the Arab Spring. In part thanks to the efforts of this broad cross-section of civil society, Tunisia has stayed the course in transitioning from an authoritarian past to a democratic future, even in the face of terrorist violence and as other revolutions in the region have faltered.

The award comes at a time of escalating sectarian conflicts in Syria, Libya and Yemen. Islamic State’s campaign of terror has uprooted Iraqis and Syrians alike, driving desperate refugees into small boats to battle the waves of the Mediterranean. They join others fleeing to Europe from political and economic crises in Africa and Asia, forming a stream of humanity symbolising failures in leadership in three continents.

Among all this, it is not hard to identify why the Norwegian Nobel Committee awarded the world’s most coveted peace prize to the Tunisian Quartet.

First,Tunisia deserves to be celebrated for its momentous achievements in consolidating democracy. Unlike other countries in the region, it has trodden a path that is slow but solid, adopting a comprehensive and consensus-building approach to decision-making.

In this it provides a rare and extremely important example, not only for the region but also for the world. Thanks to Tunisia, it is no longer possible to argue that the Middle East and North Africa are inherently undemocratic or prone to violence.

Civil society steps up

Second, the role of civil society is fundamental for bringing about sustainable peace. Political leadership is important, but the scale of the challenge in transitional societies means that we cannot simply leave things to political leaders to sort out.

At local level especially, peace feels a lot more real when it comes with tangible improvements to quality of life. Citizens want to see the economy motoring again and to have confidence in the state’s institutions. They want to know that they can sleep soundly and safely, without fear of violence, persecution or poverty. Governments often lack the capacity and credibility to deliver these dividends alone. Civil society must step up to the plate – particularly the associations of trade, justice and human rights of which the Quartet is formed.

And third, the Quartet’s work relies heavily on forming constructive relationships across the political spectrum – from secularists to fundamentalists. It has walked a fine line, keeping disparate groups with diverging interests invested in an inclusive national process of dialogue. It has, in the words of the Norwegian Nobel Committee, laid the “groundwork for a national fraternity”.

Politicians are often the most cynical of creatures, yet the Quartet has managed to build a sense of collective endeavour among them. It has encouraged them to put the country’s best interest ahead of personal or sectarian interests, making this the guiding principle for decision-making.

Other bright spots

The transition in Tunisia is a work in progress and there will be more setbacks and successes. The country was left reeling from two terrorist attacks earlier this year, when 22 people were killed at the Bardo Museum in Tunis, and another 39 people died during an attack on a tourist resort in Sousse. But the message today is clear – Tunisia has made remarkable progress since 2010, despite the odds. This is in large part due to a credible and engaged civil society, a remarkable achievement in a new democracy. The country has forged a path of inclusive national dialogue from which many lessons can be learned.

Elsewhere this year, Myanmar goes to the polls in November – the country’s first free national ballot since 1990. Colombia is closer to lasting peace than ever, ending half a century of war that has taken 220,00 lives and uprooted six million people.

The US restored diplomatic relationships with Cuba, and also struck a landmark agreement with Iran over its nuclear programmes. And the UN has adopted the sustainable development goals, explicitly recognising peaceful and inclusive societies as a development priority for the first time. Behind every step forward there is an individual or institution worthy of the Nobel Peace Prize, but only one can win and the Tunisian National Dialogue Quartet is a worthy laureate.

Laura Payne is a Research Fellow and Director of RISING Global Peace Forum, Coventry University

This article was originally published on The Conversation. Read the original article.


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