Duty v Conscience: lawyers in the age of terrorism
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Friday, 19 December 08 - 12:37 PM (GMT +12:00) By John Dierckx in Thoughts |
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An interesting post appeared in my mailbox today. The question here was one of conscience v your duty as a lawyer. Let’s start here with the post?
IBNLive 15/12/2008
"Mumbai: Lawyers in Mumbai are refusing to take on the case of the lone surviving terrorist from last month's attacks in India's financial hub, citing moral and ethical concerns, legal officials said on Friday.
The decision creates a problem for the Maharashtra government as police continue their investigation into the attacks, in which 179 people were killed. Dinesh Mota, a member of the state's legal aid cell that provides free counsel, was asked to defend the accused, Mohammad Ajmal Kasab, after Mumbai's Bar Association decided that its members would not take on the case.
Mota also refused on Thursday, saying his conscience would not allow him to take on the case. "It was the first time in my 24 years as an advocate that I faced this dilemma because I knew what the risk was to me—I was shivering," Mota said.
Mota, who risks losing his licence to practise law over the decision, said he prayed to Lord Ganesha to give him the courage to turn down the request to defend Kasab. He then called his wife and his mother to tell them of his decision, and they too agreed.
"I did not want to even go to work the next day, but my wife said I should, so I went and told the cell I won't take the case because it is not morally right," he said. The cell accepted his decision, he said, and he went immediately to the Ganesha temple to give thanks.
Last week, the city's Bar Council passed a resolution saying its more than 1,000 members would not represent Kasab or other defendants related to the November 26-29 attacks. "It was a unanimous decision because everyone felt it is our duty as citizens of this country to not defend terrorists," said council president Rohini Wagh.
It was the first time the council had passed such a resolution, she said, after making a distinction between a criminal act and an act of terror. Mumbai police, who on Thursday were granted fresh custody of the accused for another two weeks, said they had approached the court to provide legal counsel to Kasab, and the process of appointing a legal representative will start in a day or two.
While the state will ensure Kasab is legally represented, the police will "leave no stone unturned to make sure this case is fool-proof and strong", said Rakesh Maria, Joint Commissioner of Police (Crime), who is the lead investigator in the case."
What are the issues
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.
Finally
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?
Be ready to follow your dreams just in case they do come true!
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Saturday, 29 November 08 - 03:15 PM (GMT +12:00) By John Dierckx in My Journal |
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Michael Pokocky my good friend sent me a link to this remarkable video on www.ted.com, by Benjamin Zander, a fantastic presentation that everyone should hear if his or her aspirations have anything to do with leadership or sales. But I ended up seeing this one by Bill Strickman that really blew me of my socks
Bill Strickland
Benjamin Zander
Science v Christianity or Christianity as a religion without an inner core?
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Monday, 25 August 08 - 11:50 PM (GMT +12:00) By John Dierckx in Spirituality & Religion |
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Thoughts after reading the illustrated Angels and Demons and the Da Vinci Code.
I have been away for some time, enjoying some reading instead of writing. I am a sucker for beautiful editions and as a present my wife bought me the illustrated Angels and Demons and Da Vinci Code of Dan Brown, to replace the ‘normal editions' of these wonderful novels. Both have been important parts of a spiritual journey that I started several years ago. I started reading these great thrillers again. It brought back memories of the large number of publications that followed all aimed at discrediting the factuality of claims made by Dan Brown.
To me, whether he was right or wrong, mixed up facts with conspiracies and ill founded theories did not really matter. They were a great read in more than one sense: on the one hand as a thriller with one page turner after the other and on the other hand as an invitation to do additional research into the wide range of subjects covered in these two books that touched upon the many things that interested me as part of my own spiritual journey.
Although the books may have been shaky in their factuality: Angels and Demons opens us up to rethink the science v religion discussion, which is as we speak very actual in New Zealand. The idea of making CERN, the ultimate scientific outfit, the stage against which a scientist makes a major breakthrough that is to him ultimate proof of the possibility of the potential existence of a creator: something (anti-matter) created out of nothing. The same proof turns out to be the very threat that may destroy the ultimate symbol of western religion: the Vatican. The speech of the camerlengo (the PA of the as it turns out murdered Pope) in which he declares the victory of science over the physical church but at the same time makes the public and with it the reader aware of what in his view the price has been for this victory.
“Science ... has left us in a world without wonder... Each of us is now electronically connectedto the globe, yet we are utterly alone. We are bombarded with violence, division, fracture and betrayal. Skepticism has become a virtue. Cynicism and demand for proof have become enlightened thought.... The ancient war between science and religion is over. You (science) have won but you have not won fairly. You have not won by providing answers. You have won by so radically reorientation our society ... and as religion is left behind, people find themselves in a spiritual void. We cry out for meaning, And believe me we do cry out.”
As thriller both Angels and Demons and the Da Vinci Code had all the necessary ingredients: a hero, trying to solve a complex case to identify the culprit, a cover up and perhaps what makes these books and especially the Da Vinci code special is that it leads the hero and with it the reader to some quasi-mystical experience:
“For a moment, he (Robert Langdon) thought he a woman’s voice ... the wisdom of the ages ... whispering up from the chasms of the earth”.
I guess what both books illustrate most of all is a widespread sense that something is missing or lost in institutionalised Christianity. It brings to the attention is the continuously further polarising and at times even hostile relationship between science and religion which can be found back in such discussions and polemics as creationism, and stem cell research, the inability of institutionalised Christianity to provide answers or guidance as well as the ever more pressing need and cry out for meaning and spirituality.
It is in my view exactly that spiritual, esoteric element that is what has gone missing over the centuries. What is it that makes people look for that spiritual element in their lives outside their churches? What could maybe explain the loss of support for (traditional) Christianity? Whilst there may be some truth in the claim that science has left us in a spiritual nothingness (although many scientists would be able to convincingly argue that), at the same time institutionalised Christianity was apparently not there to fill up this gap. And I dare to describe it as a gap because for some reason most humans at one point or another in their life are looking for this spiritual/esoteric/inner experience which, looking at the popularity of alternatives, apparently was and is not offered through traditional Christianity.
It appears to me that any religion system has two core elements: the inner or esoteric centre element and the outer or exoteric core element. We see this in Judaism and the Kaballah, one could argue that Taoism is the inner element of Confucianism, Islam has Sufism. Modern institutionalized Christianity appears to be missing such an esoteric centre. Some argue that initial inner rites and rituals such as baptism or the Eucharist have been exteriorized.
Over the centuries it seems that Christianity has started to deny this esoteric element by giving rationalism primacy over spiritual insight. It is arguable that Christianity has come to deny more and more of its inner core and transformed it into hollow, exoteric, virtually meaningless rites and dogmas. This exteriorization, first led by Christianity itself and later by sciences appears to have left the church as exactly that institution that could no longer provide that meaning and spiritual insight and inner experience that had been at the basis of its initial success.Timeless esoteric elements thus become outdated, irrelevant exoteric doctrines, dogmas and rituals.
Disgruntled and disappointed by dogmatism without providing answers, people started and are still looking around for alternatives. Buddhism, New Age and a wide range of new alternatives all are readily available to provide that inner, esoteric element, so many are looking for in their quest for meaning and esoteric experience. And in all fairness, frequently these religions and teachers have been able to provide better advice. Esotericism appears to be a pariah in traditional institutionalized Christianity. Fundamentalists may even consider it to be the Devil at work whilst the liberals consider it as something antique and ancient. For people that go to their priests with actual esoteric experiences or a desire thereto this means they will most likely be met by unsatisfactory answers leading to leaving religion all together as worthless since even the so-called experts don’t appear to know and understand.
It is in this light that it is easy to understand how relatively recent discoveries such as the Gospel of Thomas and other non-canonical texts have such an appeal and impact. They do invite the reader to that spiritual experience and a search for meaning that institutionalised could or did no longer offer. More than ever there is a need for ‘teacher’ and counsellors with enough experience in the spiritual realms and to assist people in distinguishing between the genuine esoteric experience and what is offered through many of the quick fixes and miracle workers.
Could it maybe be that the Church is not losing the battle against science but the battle against itself by denying its fundamental inner/esoteric core?
There is of course much more to say here. I will leave it up to the reader to engage in a stimulating conversation.
A Rationalist With a Twist?
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Monday, 23 June 08 - 01:49 PM (GMT +12:00) By John Dierckx in Spirituality & Religion |
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Not so long ago I received an email from an old acquaintance who had stumbled upon my blog and read some of the stories. He asked me what had happened to me and if I was slowly turning into a "reborn" or "revived" Christian. "You used to be such a rationalist what has happened to you?
I thought this was actually quite an interesting question and will some of my thoughts with you.The Collins Shorter Dictionary and Thesaurus describes “rationalism” as “philosophy which regards reason as only guide or authority.”
In the Wikipedia we find the following short description:
In epistemology and in its broadest sense rationalism is “any view appealing to reason as a source of knowledge or justification” (Lacey 286). In more technical terms it is a method or a theory “in which the criterion of truth is not sensory but deductive” (Bourke 263). Different degrees of emphasis on this method or theory lead to a range of rationalist standpoints, from the moderate position “that reason has precedence over other ways of acquiring knowledge” to the radical position that reason is “the unique path to knowledge”.
If there is anything that appears to have dominated my thinking and my state of mind it is most probably that I have this sense of always wanting to leave the door open. So instead of thinking in absolute truths I prefer to think in temporary truths that may be replaced with new insights and as a result of that a new (temporary) position. Instead of thinking in absolute, fundamentalist, terms I prefer to leave the door open. So, whilst writing this book it may well be that my position has changed by the time it is published.
For many rationalism is considered as one of those ways of actually saying that it is impossible to be a religious person and that there cannot be room for a God or a religious dogma in one’s life. I tend to see this not necessarily as rationalism but more as scepticism, or better yet fundamentalism. Fundamentalism is understood here as a state of being or mind whereby alternative ideas, that do not match with ones own view on reality or belief of reality, are blocked out just because of that. I believe that curiosity can not kill any cat and that it is exactly curiosity that opens up for new ideas and growth, personal and ultimately as humanity.
I do not for instance see an impossibility to be a rationalist and at the same time accept a certain religious dogma. In my view the most important question for a rationalist is not necessarily what your opinion is but more how you arrived at that opinion. Rationalism in my view stands for a supremacy of reason and if that reason leads you to dogmatic conclusions than that’s how it is: it does not make you more or less a rationalist. At the same time however this would lead to a relativist approach to this dogma; it may be my truth for now but that does not mean it is forever.
Rationalism, in my view, includes the option of seeing ones current position or personal truth as fallible (a theory), one that may be subject to change where the same reason requires so.
It is this (maybe personal) rationalist approach that has led me to consider myself an atheist for most of my life. I looked at the existing evidence and whilst compelling at times, I did not find conclusive evidence that there actually existed a God. At the same time however I must now admit, I wasn’t looking for any such evidence.
I wanted to believe that there was no God.
On the other hand, I found the body of atheist publications, culminating in the recent work of Richard Dawkins “The God Delusion”, similarly inconclusive. I have come to a point by now where I consider atheism to be a belief system just any religion.
For me it means that I can now rest assured and consider religious notions without having to wonder whether or not I am still maintaining a rational approach at the same time I can read atheist literature and consider it as religious in its own right.
Book Review: Seven Wisdoms: the Legend of the Lotus by Thoko M Banda
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Wednesday, 14 May 08 - 02:40 AM (GMT +12:00) By John Dierckx in Reading & Writing |
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I would probably not have picked up on the book if I had not had such an interesting and stimulating conversation online with the author of the book Thoko M Banda. (www.thokobanda.com). After the conversation through facebook chat and surprised by the humbleness in his words. Even more surprised I was finding out how all that time he apparently has been following my actions online. I mean yes I do that with all my heart but hardly ever find anyone expressing their appreciation with the exception of perhaps a few friends such as Michael Pokocky and Dennis Gallagher; both very inspirational or at the least stimulating persons in their own right.
But as usual I am wandering off, so back to the book, Seven Wisdoms. After my chat with Thoko Banda I downloaded and read the book within the next 24 hours. I can recommend the book to anyone. Personally I like the apparently simple way in which the whole book is written, but when reading it again and again it seems to reveal new layers.
So what are these Seven Wisdoms?
- Love to live each moment with love in your heart.
- The highest form of control is when you surrender all control.
- Never let life get in the way of living.
- Nature acts never in haste - nature acts always with advance hindsight.
- As you thought, so you became. As you think, so shall you become.
- All that is worthwhile can only be accomplished with persistent enthusiasm.