THIS article attempts to underscore the culture of `servility` in Pakistani courts, and why the employment of flattery and adulation is unbecoming of a lawyer and not in the interest of the justice system. Judges are human beings.

Human beings make mistakes. Human beings also disagree, and this is true for even perfectly reasonable ones. Thus, it naturally follows that when a judge sit s in judgement over a case, his ultimate ruling may be founded on mistake or error.

Prof H.L.A. H art in The Concept of Law explains: `[A court`s order] even if it is plainly one outside the jurisdiction of the court to make it [ought not to be treated as a nullity]. It is obviously in the interest of public order that a court`s decision should have legal authority until a superior court certifies its invalidity, even if it is one which the court should not legally have given. Hence until it is set aside on appeal as an order given in excess of jurisdiction, it stands as a legally effective order between the parties which will be enforced.

Most reasonable lawyers would acquiesce that the conclusion drawn by Prof Hart represents the accurate approach.

However, this article is not about incorrect or defective judicial orders, but about the culture of servility in courts which often precedes such orders.

During the course of oral submissions, a lawyer should be respectful, courteous and polite towards the judge, even when the judge is not being very reasonable.

Rule 159 of the Pakistan Legal Practitioners and Bar Council Rules, 1976 stipulates: `It is the duty of an advocate to maintain towards the court a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.

Respect for the court or the judicial officer is to be distinguished from `servility`. Unfortunately, in Pakistan, it is common practice for lawyers to indulge in flattery and elevate the judge with sugarcoated language to the position of a demigod. This has had profound repercussions over the decades, with many judges actually acting as demigods.

It was narrated to me by a senior lawyer that once, when a judge of Pakistan`s superior judiciary asked a lawyer what sort of an order the judge could pass in the case, the lawyer turned to flattery, saying, `My Lord can pass any kind of an order.

He can turn the day into night and the night into day`; and this, according to the lawyer, was a subtle way of echoing what Sir Ivor Jennings said about the suprem-acy of the Westminster parliament. The truth is that the statement was more in line with the egregious remark of chief justice Charles Hughes, who chaffed, `We are under a constitution, but the constitution is what the judges say it is`, a statement decried by Aharon Barak in The Judge in a Democracy as `incorrect` and `perniciously arrogant`.

I myself have seen lawyers flatter judges after the latter utterly misconstrued an elementary point of law with remarks such as `what wisdom emanates with your Lordship`s words, each word is worth its weight in gold`, and then bowing their heads in obsequious submission.

The employment of such servility and flattery is unbecoming of a lawyer, and detrimental to the judicial system.

Many lawyers, when confronted about such servility, casually quip that these traits are the non-detachable remnants of our colonialpast. Ibeg to differ.Indeed, the Britishhad a very elaborate`peerage system` and `orders of chivalry`, with`lords` and `knights` and `royalty` woven into a great imperial order.

But the idea of respect did not demand servility, and certainly not in courts.

TheTimesofIndiarecounts how Jinnah and Sir Chimanlal Setalvad were appearing for opposite parties before the Bombay High Court.

Around 5pm, the judge suggested that the counsels should continue their arguments as the judge was determined to sit till 7pm and conclude the case. Jinnah exclaimed that since the court`s working hours extended till 5pm, he would argue till then and promptly leave, as both he and Sir Chimanlal Setalvad had other professional engagements. And thereafter, if the judge desired to sit, he could sit alone.

Both counsels punctually left after the clock struck five. Joachim Alva in Men and Supermen of India recounts how, when the judge Sir Amberson Martin of the Bombay High Court chided Jinnah saying, `Mr Jinnah you are not addressing a third-class magistrate`, the retort was, `There isn`t a third-class counsel before your Lordship`.

The legal fraternity is complicit in creating a culture of servility in courts, and in theinterest ofjustice,thistrendneeds to be reversed. • The writer is a legal practitioner.

asadulmulk@legalparameter.com