A Special Chapter - Part 2: Homad's Battle with the Lawyers Over Judicial Procedure Reform

A Battle with the Lawyers

The profession of law, or what some call "the office of the advocate," is an honorable profession, for it exists to help the rightful claimant reach his due, by presenting his arguments and evidence before the judge, so that the judge may weigh them against the arguments and evidence of his opponent. The lawyer is the tongue of the wronged party and the sword he raises against the one who has wronged him.

It is an ancient judicial profession:

"Ever since people gave up the use of force to settle their disputes, lawyers have existed, because laws, whether long or short, are always somewhat vague and incomplete. It is impossible to resolve the endless variety of situations arising among people by setting down a few formulas, organized into fixed articles. Wherever a dispute breaks out between two people, they inevitably need a judge to settle that dispute between them, by interpreting the provisions of the law. As a rule, wherever there is a judge, there are also, alongside him, two lawyers, since each party to a dispute confuses his own interest with his right, just as he confuses his right with what is right in the fair, ordinary sense of the word. Societies have found it useful and prudent to surround the judiciary with every safeguard that might prevent it from falling into error, among them having the litigants themselves set out their claims clearly before it, so that it may understand them properly. There is nothing better, for this purpose, than having lawyers stand between the judge and the litigants, to defend their clients' rights as members of a profession, observing in their work the rules of integrity and good conduct."[1]

This is what Plato said long ago:

"Any knowledge that is not built on justice and the other virtues is nothing but a farce, and no virtue at all."

And when Socrates spoke to "Phaedrus," he told him:

"My friend, the art of rhetoric requires commitment to the truth, not the pleasing of people, for otherwise it becomes a laughable art, and no good comes of it."

The current Law on the Legal Profession (Law No. 39 of 1981) took care to follow this same path, defining the legal profession, in its first article, as:

"A free, intellectual, scholarly profession, whose task is to cooperate with the judiciary in achieving justice and to defend the rights of clients, in accordance with the provisions of this law."

It required every law graduate wishing to join this profession to swear the following oath before the Court of Appeal, in the presence of the head of the Bar Association (the president of the local lawyers' syndicate):

"I swear by Almighty God that I shall practice my profession with honesty and honor, that I shall preserve the confidentiality of the legal profession, and that I shall respect the laws."

I would like to press two points here:

First: that the legal profession has a limited mission, namely to cooperate with the judiciary in achieving justice (first) and to defend the rights of litigants (second), not by any means the lawyer might resort to, but "in accordance with the provisions of this law."

In order to fulfill "the mission of the legal profession," which is certainly a noble mission, the law leaves it to the lawyer's own discretion whether to accept or refuse a client's case (except in certain cases specified by law, in Article 56), while requiring him to agree in writing with his client on his fees, so that no dispute might arise between them later, leading him to set himself up as the opponent of a person he had, only the day before, been defending and championing.

The rule that has become firmly established in the profession's own practice is that a lawyer has no right to accept representation of anyone before the courts unless the case is a "just" one, as he feels it in the depths of his own conscience, and as his own professional conviction is at ease with.

This "just" case does not become clear to the reader except by referring to legal commentary, which never ceases, so long as there remain, among people, wrongdoers and wronged.

I myself have practiced law since 1945, and remained registered with the Bar for some twenty-three years, though I admit that most of this was a purely formal registration, given how occupied I was with political work, and for that reason I never claimed any of the rights the profession's own laws grant to practicing lawyers.

Even so, I came to know a great deal about the merits of this profession, and even more about the failings of some of its practitioners. This is not the place to assess them, but many good lawyers have themselves cried out in complaint against the conduct of some of their colleagues, conduct that does not rise above the level of mere suspicion, and which has done harm both to themselves and to their profession.

During my time as Minister of Justice, many citizens complained to me that their cases remained before the courts for long years without being resolved, and that many of them preferred to abandon their rights altogether rather than risk going to court.

I asked the judiciary the reason for this slowness, and they told me they suffered from lawyers' persistent requests for postponements, whether for a stated reason or none at all, and that they also suffered from the exhaustion caused by the sheer number of cases brought before them each morning, some legitimate, most without any real basis. Their own unspoken complaint might well be put in these words:

If people dealt fairly with one another, the judge would find rest,

and people would return to settling their disputes amicably.

I once asked one of my former law students about "the longest case in his career," and he told me he had represented a child born after his father's death, seeking to have him evicted from a house that had passed to him by inheritance and was occupied by a tenant. He won the case, but by the time his client finally entered the house, it was with his own bride walking at his side.

I myself experienced this problem in my own home. I had bought an apartment still under construction, and five of the six partner-sellers acknowledged the sale, while the sixth denied his own signature. Despite the testimony of the other five before the court, confirming that he had sold along with them and had received his share of the price, and that this was indeed his signature, our case against him did not reach its "happy" conclusion until fourteen years had passed, and a long series of further procedures still lay ahead of us before we could register the apartment in the provisional land registry.

If the proverb "reading brings joy, experience brings sorrow" ever applies anywhere, there could be no better place for it than Article 144 of the Code of Civil Procedure, whose first paragraph states:

"The litigants must set out all their claims and defenses at once." This provision must be understood to mean that the plaintiff submits his initial petition together with all his claims and evidence, which is then served on the defendant, who is granted time to respond. The court grants him a suitable period, at the end of which he must present his response in full, after which the judge refers the case for review for a reasonable period, and then issues his ruling.

It may happen that the matter requires witnesses or expert opinion, in which case these procedures must be carried out with the necessary speed, and no more.

But for a case to remain pending before the courts for years on end runs contrary to the very principle of justice, exhausts the litigants, and mocks both this legal provision and the very lawmaker who wrote it.

In our own earlier days, the Supreme Judicial Council used to punish any judge who postponed cases without justified reason, and inspectors used to examine negligent or overly accommodating judges, questioning them and issuing them a formal written reprimand.

It seemed to me worthwhile to introduce certain amendments to legal texts that experience had shown to be in need of reform, out of concern for the rights of justice and the interests of litigants.

I therefore formed a committee of judges, with whom we discussed these shortcomings, and we ended up drafting bills to address them, which I submitted to the President of the Republic. He signed them, and they became laws with immediate effect. These reforms addressed shortcomings in the Law on the Judicial Authority, the Code of Criminal Procedure issued by Legislative Decree No. 112 of 1950, and the Code of Civil Procedure No. 84 of 1953.

No sooner had news of these laws' approval reached the lawyers' ears than they gathered together and launched a broad campaign against me, on the grounds that I had not consulted them.

They even sent a telegram to the President of the Republic, through Mr. Mahmoud Riad, who was then Egypt's ambassador to Syria and remained there afterward as a local advisor to the President, but the President did not accept their arguments, since these, at their core, aimed only at prolonging a case's stay under the judiciary's "care," passed from hand to hand for no reason, or left to sleep on the shelves of the registry, until whoever had the power to set it moving again finally did so.

These reforms remained in force for as long as the Union itself lasted.

But when the ill-fated secession took place, the very first concern of the new Minister of Justice (himself a lawyer) and the Prime Minister (also a lawyer) was to tear down these amendments, and they issued a legislative decree repealing them.

Among the things that had been amended, for instance, was Article 221 of the Code of Civil Procedure, which we had rewritten to read as follows:

"The periods for appealing rulings of conciliation courts, courts of first instance, and courts of appeal shall begin from the day following the explanation of the ruling, if rendered in the presence of the parties, and from the day following its notification, if rendered as though in their presence." The old text was restored, setting the appeal periods for rulings of first instance and appeal as running "from the day following their notification."

We had also set the period for appeal to the Court of Cassation at fifteen days (Article 252), and this was restored to thirty days.

The aim behind this was not to give the lawyer time to prepare his defense, since he is presumed to already know the file well, but for other purposes, among them the wish to keep the case hanging in his own hands for as long as possible.

It is only fair to the good lawyers, who are, thank God, numerous, that I exclude them from this generalization, and it is equally their right that I condemn the conduct of those who show no respect for the profession and its honorable rules, namely helping the wronged party to present his case before the judge in a legal language the judge can respect, and offering a convincing legal response to the opposing party's claims, so that the dignity of the profession remains above suspicion.

Let us remember that the judge, too, remains only human, and may be affected by the same things that affect other people. It is related of the Messenger, peace be upon him, on the authority of Imam Ahmad, in his chain of transmission from Umm Salama, wife of the Prophet (peace be upon him), that he said:

"You bring your disputes to me, and I am only a human being. Some of you may be more eloquent in presenting their case than others, and I judge between you only according to what I hear. So if I rule in favor of anyone with something that rightfully belongs to his brother, let him not take it, for I would only be cutting off for him a piece of the Fire."[2]

Yet many people have strayed from this noble counsel, and their hearts have hardened, so that they have devoured ill-gotten wealth and turned away from the path of God.

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Endnotes:

[1] From the book by the Paris bar president, Mr. Bayen, entitled Les regles de la profession d'Avocat, Paris, 1936, p. 6.

[2] Quoted from Dr. Atiyyah Mashrafah, The Judiciary in Islam, p. 79.