Defending the reviled

Vishnu V. SHANKAR

By giving terrorists, dictators, and even manipulative defendants proper legal representation and a fair trial, we not only occupy the moral high ground to condemn them; we also create potent symbols of the superiority of our way of life in contrast with theirs.

What connects Captain Preston, Kehar Singh, Saddam Hussein, Manu Sharma, and Salim Hamdan? Besides being among reviled individuals (many of them at least), they were defended by some of the most conscientious lawyers of their time.

Unsurprisingly the legal profession’s time-honoured commitment to defend the most reviled of defendants has never been free from criticism, even in societies committed to the rule of law such as India and the United States.

In November 2006, Ram Jethmalani, one of India’s most respected criminal lawyers, was attacked on television and in the press for defending Manu Sharma, the prime accused in the Jessica Lall murder case.

In January 2007, Charles Stimson, a senior Bush administration official responsible for the Guantanamo detainees, called for a boycott of the law firms who were pro bono representing the detainees. A year has passed since these events and since the Supreme Court is to shortly decide Mr. Sharma’s appeal against his conviction, it is about time to re-evaluate the issue.

“Come on, why should lawyers defend someone who is so ‘obviously guilty’?” Although this may sound like self-serving lawyer-talk, the question of guilt, “obvious” or otherwise, is for the court and not for the lawyer - or for the press.

The honest lawyer (there are many of us, I assure you) does not manufacture facts (the ‘crime’ has already been committed) or twist the law (the law already exists) and certainly does not lie.

Among other things, lying destroys that intangible asset to success at the bar - reputation.

Yet “obvious guilt” has the unpleasant familiarity of mob justice and societal prejudice.

If public opinion can deny Sharma legal representation today, tomorrow it can deny other unpopular defendants proper representation - lower castes, religious minorities, the poor, women, sexual minorities, and others.

The Constitution entitles us to equality before the law - no accused, meek or mighty, can be disfavoured for legal representation. This embodies a deeper truth: a criminal trial is essentially a commitment to pursue the truth and nothing else.

The commitment to the truth requires fair access to legal representation. If the ‘problem’ was that Mr. Jethmalani’s unquestioned legal brilliance would tip the scales in favour of the defence, it would have been solved not by getting him to withdraw but by getting equally skilled lawyers for the prosecution.

Collective moral outrage can legitimately be expressed only from a position of collective moral superiority.

If I treat you the same way that you have (or would have) treated me, how can I be morally superior to you? I may even be your moral equal but I can never sit in judgment over you. This is not philosophical sophistry but is embodied throughout the criminal law.

Why, in a murder trial, is a damning confession extracted by torture inadmissible in evidence? This is so because in respect of the confession at least, the prosecution and the accused have been reduced to moral equals - each committed a violation of another’s right to bodily integrity.

Likewise, denying defendants the counsel of their choice makes it impossible to legitimately convict them. By doing so, we risk cutting ourselves on that sharpest of knives - moral hypocrisy.

Collective moral superiority is especially valuable when the community is fighting a war of principle and ideology - for example, the ideals of liberal democracy versus the intolerance of religious fundamentalism. Like all important values, the moral high ground does not come free.

The defence of the reviled involves costs - unfortunate acquittals, lenient sentences, and worse - and we will lose many battles before we win the war. A mature society committed to the rule of law will resist the popular impulse to react to temporary discomfort. This is what separates us from them.

By giving terrorists, dictators, and even manipulative defendants proper legal representation and a fair trial - the very ideals they would deny the rest of us - we not only occupy the moral high ground to condemn them, we also create potent symbols of the superiority of our way of life in contrast with theirs.

The defeat of crime, terrorism, intolerance - and the resolute condemnation of the reviled - require no less.

The Hindu