Everyone has the right to representation

Apparently this concept is too hard for the Indian press to understand. As background, there’s quite a famous case in progress. The court of public opinion has convicted the accused. That’s fine — happens all the time.

But apparently they are having a hard time understanding why a leading lawyer, Ram Jethmalani, is defending the accused. Mr. Jethmalani, who is, if anything, brilliant, takes the reporter, Sagarika Ghosh, to the cleaners on her lack of understanding between public opinion and legal fact. The basic issue is not whether Manu Sharma is guilty or not guilty. The basic issue is that being convicted in the court of public opinion does not mean that he is guilty according to the law.

Sagarika Ghosh can’t grasp that distinction. It is ludicrous how she keeps asking him “why are you defending him?” – because everyone has the right to a fair trial and everyone had the right to representation. Even the guilty ones. Only by ensuring that the guilty have fair representation can you ensure that the innocent will get fair representation.

I love this quote —

That is my courage. I have moral courage, and who are the citizens of India? You are not the repositories of the citizens of India. I decide according to my conscience who to defend and please understand and tell those people who are asking this question that there is a statutory rule of the Bar Council of India that a lawyer who refuses to defend a person on the ground that people believe him to be guilty is himself guilty of professional misconduct.

Watch the video here. [Hat tip on video and quote: Confused]

While I personally might feel that Manu Sharma is guilty as sin, is using his political connections and must be convicted, I will also defend his right to the best counsel available. Why is that hard to understand?

The on thing I completely disagree with him on is that the press has overstepped their ground – India has too many instances where politicans get away with, well…, murder. So I think the press has done a great job of exposing this story and all it’s gory details. But, he’s entitled to his opinion. I hope Jethmalani doesn’t give himself a coronary with all the screaming.

  • Anita Iyer

    I agree. Manu deserves to be defended, but at what cost? That of the modesty of a dead woman? Someone who cannot defend herself? Jethmalani is also obliquely accusing Jessica of being something that she might not have been…of being in a situation which might not have been. Is he not? Is that not contempt?

    She was killed because she ‘challenged manu’s manhood’? Is that how he views women? Would he advise his socialite daughter not to ‘challenge a man’s manhood’ in order to escape murder? Is that what he is saying?

    What was his point really? Why is this even permissable as a defensive argument in court? It should be scratched from the records and he must be made to apologise to jessica’s family in public.

  • Shripriya

    Anita, for chronology, I posted this before Jethmalani made his “tactics” clear. It was when he had just agreed to take on the case.

    I agree with you that I find his tactics distasteful. Just as I find the tactics of those who defend rapists and murderers distasteful because the tactics often involve casting the victim in a poor light. Which is terrible.

    I won’t defend his tactics. Just his right to represent whomever he chooses.

  • Anita

    Shripriya,

    Yes, he does. But he does have the dubious distinction of defending those who do not deserve a lawyer with his capabilities in the first place. Should a man of his position not be on the RIGHT side always? What example is he setting for aspiring lawyers?

    I agree that to judge Manu without a proper trial would be incorrect. Yet, I cannot find any justification for the direction RJ is taking this case in.

    In the beginning we all join the profession with lofty ideals…then it begins to degenerate to a level where our only goal is to beat the other guy irrespective of whether we are on Law’s side. Why call ourselves LAWyers then?

    What is professional misconduct? I believe it is the abuse of power, even if the power is that of argument and glib misrepresentation of the truth. What is his profession? That of a lawyer. What is his duty as a lawyer? Not to win a case for his client but to ensure that justice is done.

    Today a laywer’s only goal is to win a case. Is that not professional misconduct of the highest order?

  • Shripriya

    Here’s the thing — what is the “right” side? Shouldn’t that be decided in the courts? Since he hasn’t been judged, how do we know what the right side is?

    I looked up the Bar Council of India’s code of conduct (difficult to find online — http://lawmin.nic.in/la/subord/bcipart6.htm). It says

    “15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.”

    So, he has to defend the guy irrespective of his personal opinion. And he must defend him to the best of his ability. So, despite the fact that you (and I) think Manu Sharma is scumball, Jethmalani is following the code of conduct of his profession. In fact, professional misconduct, as defined by the code that governs lawyers in India, would be to not try his best.

    Professional misconduct in this case would be breaking the law or breaking the code which he swore to follow. He is doing neither, from what I can see.

    Now, you may feel he shouldn’t have taken the case, but that’s his decision. That’s kind of the problem in democracies — people can do things we hate. But that’s also the power of democracies.

  • Anita

    /// bearing in mind that his loyalty is to the law///

    not to the client at the cost of the law.

    It is not only about his having taken up this case. It is also about how he’s fighting it.

    /// all fair and honourable means ///

    He’s not breaking any professional rules, no. He’s too smart to. But I’m not sure he’s using the right means to fight this case…maligning a dead woman pointlessly certainly isn’t fair or honorable.He’s an intimidating opponent. I truly hope he doesn’t make the truth disappear in this case using his sorcery with words.

  • Shripriya

    Well, :), the sentence that has “his loyalty is to the law…” goes on about evidence etc.

    But I agree with you that maligning the victim is disgusting.

    And I certainly hope that we have strong lawyers for the prosecution. A balanced court where the opposing counsel gives two-hoots for the “reputation” of Jethmalani is what’s needed to ensure a fair fight. Also, I’d hope the judge will be able to look beyond his dramatics.

    Let’s see how this plays out. As I said in my post politicians and those connected to them get away with too much in India. A brand name like Jethmalani should not be able to get away with stuff *in court* because of who he is (the press is a different matter since they are so brand conscious whoever the heck it is).

  • Anita

    And I certainly hope that we have strong lawyers for the prosecution. A balanced court where the opposing counsel gives two-hoots for the “reputation” of Jethmalani is what’s needed to ensure a fair fight. Also, I’d hope the judge will be able to look beyond his dramatics.

    [teal} amen to that…

    (..but.. u think?? )

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