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Lecture-Muslim Legal Practitioner: Between His Faith And Practice, By Yusuf Ali SAN

Lecture-Muslim Legal Practitioner: Between His Faith And Practice, By Yusuf Ali SAN

 

  • Malam Yusuf Ali SAN delivering his lecture*

“Islam highly insists that lawyers should preserve standard of conducts, to observe good ethics, conscience and piety.”

MUSLIM LEGAL PRACTITIONER: BETWEEN HIS FAITH AND PRACTICE

BEING A LECTURE DELIVERED BY: MALLAM YUSUF ALI SAN

AT THE COMPANION JOINT USRAH PROGRAMME HELD AT THE LAGOS STATE HOUSE OF ASSEMBLY MOSQUE, ALAUSA, LAGOS, ON 3RD AUGUST, 2019

Introduction

Even though some scholars are of the opinion that Western form of legal practice being practiced in Nigeria is alien to Islam to the extent that fatwa was passed by them that legal practice is an act of Kufr. This unpopular opinion is as a result of the limited understanding of the provision of the Quran which says: He who does not judge in accordance with what was revealed by Allah, those are unbelievers. Since the law we practice in Nigeria is man-made law (Common Law) and Nigeria being a secular state, then it is implied that Allah doesn’t have a say in our affairs because Islam is a complete way of life encompassing the laws by which we are to be governed. Thus, it was argued that there are no other laws comparable to that made by Allah and has not therefore left any gaps for man to seek guidance elsewhere. This is also a corollary to the pronouncement of Shahadah, a statement which must be uttered before anybody becomes a Muslim and which is every Muslim continues to utter everyday. It asserts that there is only one divine being and that Prophet Muhammad (S.A.W) is the last prophet of the one God. That the one divine God is the creator of all things and as such there is no reality independent of the divine.

This opinion as sound as it appears, is not totally blank jacketed. It accommodates exceptions and variations depending on the circumstances and situation one finds himself/herself. One of such is the situation of Nigeria being a country characterized with many religions. It is practically impossible to declare a particular religion as a state religion. This is unconstitutional as provided by section 10 of the Constitution of the Federal Republic of Nigeria, 1999. It follows therefore that total adherence to application of Islamic Law is impossible. The question then is; what should Nigerian Muslims do in order to protect their rights from being infringed? Is it to fold their arms because they do not want to practice any law other than Sharia when the system has not made provision for adequate application of Sharia? Or should Muslims in Nigeria come together and try to break away from Nigeria for the purpose of declaring an Islamic state where Sharia can be fully implemented and operational? This brings about the principle of necessity (Al-Doruuraat) in Islam which allows one to do what he is not ordinarily permitted to do. Therefore, legal practice in a situation like ours becomes permissible. This is in line with the provision of the Qur’an where it tell us that Allah gave humans an intellect that is capable of discerning the divine plan in the world. We are enjoined to marvel in Allah’s creation and increase our knowledge of it. This paper therefore aims at addressing what a Muslim Legal Practitioner should do when legal practice is in conflict with the dictates of his faith.

Law Practice and Legal Practitioner

Legal Practice is the engagement in the practice of Law as a means of livelihood or vocation. It is a situation where one holds himself out as an expert in the law and practice as a means of earning remuneration or pro bono.

A legal practitioner therefore is one who makes legal practice his means of livelihood in whatever area of legal practice. But in technical sense section 2 of the legal practitioner Act states that a legal practitioner is one who has his name on the role of barristers and solicitors in the Supreme Court of Nigeria.

Legal profession plays an important role in the administration of justice. As part of the legal profession, lawyers have unique roles of creating proper image and building confidence and trust of the public through observing certain code of ethics. Lawyers are bound with a high standard of code of ethics to ensure that the profession is able to fulfill its role within the justice system adequately and are ethically equipped for the powerful roles which they play in  the  society.  The lawyers’ code of ethics reflects standards of chosen behavior and provides guidelines for desirable conduct between individual lawyers, clients, courts and public at large.

Generally, a lawyer refers to a specialist in or a practitioner of law, one as an attorney, counselor, solicitors, barrister or advocate whose profession is to conduct lawsuit as to legal rights of others.

Lawyers and Legal Practice in the History of Islam

The profession of legal practice had already existed since the early period of Islam although it was not formally or specifically called lawyers or solicitors or barristers. In fact, the principle of wakalah bil khusumah (agency) has already been practiced as at the time of jahiliyah where any legal dispute would be referred to kahin or arbitrator. The arbitrator is appointed from the respected tribe and a noble family. During the time of the Prophet, the practice of wakalah can be seen in the case of Muadz bin Jabal be appointed as a Judge in Yemen.  The Prophet also asked  Unais  to  determine  conviction  and enforcement of hudud punishment on an adultery offender.

Saidina Ali Ibn Abi Talib was known as one of the best legal representatives amongst the companions. For instance, in case of zina (adultery) where a pregnant woman who had been married confessed that she has committed zina and asked Caliph Umar to stone her to death. Ali investigated and proved that the pregnant woman was unwilling to have sexual intercourse with the man in a state of extreme hunger and thirsty. Caliph Umar accepted view of Ali and freed the woman. In another case, Saidina Ali Ibn Abi Talib represented a young man who has been accused for an offence of molestation. Beside Saidina Ali, Kaab also was known for his cleverness in legal representation.

On another occasion in the time of Caliph Ali, Saidina Hasan represented a man who has been accused with murder. The accused was arrested by a group of persons in a building and in his hand was a knife covered with blood. Near him was a corpse of a person who appeared to have been stabbed and was covered with blood. Caliph Ali questioned the man and he admitted that it was he who killed the man. Caliph Ali sentenced the man to death but when the sentence was about to be carried out, another man came forward and confessed that he actually killed the man. During the hearing process, the former explained that he made a confession because he could not bring anyone or evidence to support himself and the latter claimed that he killed the victim for a purpose of money. Caliph Ali then asked Saidina Hasan to give his legal view. As a legal representative, Saidina Hasan gave his view that both persons should be released because the first man clearly did not kill anyone and the second man although he has committed murder, he nevertheless had also saved the life of the first man. Caliph Ali accepted the view and ordered that compensation be paid from the Baitul Mal (public treasury) to the victim’s family. All of these cases signify the acknowledgement of Islam on the legal profession particularly the roles play by the legal representative or lawyers to assist the court in the process of administrating justice.

Although  there  was  no  formal  legal  profession  during  the  early  stage  of  Islam  but historical evidence in many literatures provide indication of the existence of such profession. During the Abbasids Empire, the lawyer’s profession is formally recognized where judges normally requested the disputing parties to be represented by a learned person in Islamic law. Amongst the famous lawyers at this time were Abu Ahmad Al Wazzan, a representative of Kadhi Abi Jaafar Ahmad Bin Ishak and Abdullah Bin Jaafar, a representative of Kadhi Abu Bakar Muhammad. It is contended that the modern practice of advocates and solicitors as practiced by Western legal system was only introduced during the empire of Turki Uthmaniyah.

ETHICAL PRINCIPLES OF A LEGAL PRACTITIONER UNDER THE NIGERIAN LEGAL SYSTEM AS CODIFIED IN RULES OF PROFESSIONAL CONDUCT (RPC), 2007

The legal ethics that guide the legal profession focuses on lawyers’ professional standards promulgated in the codes or rules that are adopted by the Bar association. In the case of Nigeria, the legal ethics adopted by the country’s legislature and Nigeria Bar Association to regulate the profession can be found in the Rules of Professional Conduct for Legal Practitioner (RPC), 2007. The legal ethics occasionally examines broader questions of professional responsibility, including the lawyer’s role in the profession and the profession’s role in the society.

The use of legal ethics is based and influenced by some moral and religious perspectives or commitments of people on the required standard a legal practitioner must make bear in his/her work. Thus, there are some rules in the RPC which align with the Qur’anic injunctions from Allah. Thus, in the course of analyzing this, one will find out that Islam as a religion already plays some basic roles in legal ethics, even when it is unmentioned in the RPC, court cases, and disciplinary proceedings.

The Attorney – Client Relationship

This is the concept that a legal practitioner’s loyalty lies with the client, although there are exception to this.  This rule according to the provision of Rule 14 of RPC, states that a lawyer is to devote his attention, energy and expertise to the course of his client and to act in the manner consistent with the best interest of his client. The provision further stipulates what a lawyer shall do so as to be seen as dedicating his time to the service of the client. Rule 15 of RPC provides also that a lawyer in the representation of his client must do same within the purview of the law and as a result may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.

The above provision of the RPC being a manmade law is to regulate the smooth relationship between a lawyer and his client. The provision despite recognizing that a lawyer’s loyalty lies with the client, also recognizes that the loyalty must not be so deafening that it will encourage the lawyer engaging in some acts that is unbecoming of a lawyer. For instance, rule 15(2)(a) provides that a lawyer in his representation of his client shall keep strictly within the law notwithstanding any contrary instruction by his client; and if the client insists on a breach of the law, the lawyer shall withdraw his service. Also, Rule 15 (3)(a) provides that a lawyer in the service of his client shall not give service or advise to the client which he knows or ought reasonably to know is capable of causing disloyalty to, or breach of the law. The essence of this is to ensure that the loyalty that a lawyer owes his client is not to the extent of infringing on the right of another or abuse of another person’s right and to ensure that the practice of any legal practitioner is aim at advancing cause of justice in the society.

Non Conflict of Interest

This is another concept that guides the lawyer and client relationships. Rule 17 and 23 of RPC provide for the rule of non conflict of interest when a legal practitioner is dealing with client interest or property. This duty of a lawyer is an offshoot of lawyer fiduciary duties, which encompasses the duty of honesty. By virtue of rule 17, a legal practitioner is to disclose any interest he has in relation to the subject matter of which the client seeks legal advice on. It could be a developing interest, for example, in property acquisition. This duty extends to non-purchase of client’s property in his care or not, except the lawyer fully discloses this interest of his to the client and the price is fair one. The rule also states that a legal practitioner is not to act for two or more clients with opposing interest    at the same time. In the same tone, rule 23(2) expects a lawyer to shun conflicting interest when handling a client’s property.

Professional Secrecy

The general rule of the profession as to communication between a lawyer and client in the normal cause of professional employment is that same are privileged. A legal practitioner is not to reveal the confidence reposed in him by his client to his advantage or that of a third party, unless the client consents to it after full disclosure. This is provided for by rule 19 of the Rules of Professional Conduct. Supporting the general rule, rule 23(1) of RPC said a lawyer shall not abuse or take advantage of the confidence reposed in him by his client by doing any act for his personal benefit or gain.

However, there is hardly any rule in the RPC without an exception. Thus, the exceptions to the rule of professional secrecy of legal practitioners to their client are: non-confidential information which are of notorious nature; where the consent of the client is obtained after full disclosure; where intention to commit crime is discovered by the lawyer and disclosure of the information is necessary to prevent the crime; where it necessary in order to collect professional fee for services rendered or to defend himself or his employees or associates against an accusation of wrongful conduct. It is of interest to note, that the exception of disclosing confidential information of client to prevent commission of crime by the client falls under the ambit of whistle blowing. The concept of whistle blowing is a development of moral obligation to ensure prevention of crime one get wind of or exposure of one already committed.

Dealing with Client Property

This is provided for by Rule 23(2) of RPC, which states that a lawyer is to render account for all the money he collects or property he manages on behalf of his client and shall not mix such money or property with or use it as his own. This is also part of the fiduciary duty a lawyer owes his client. This rule is majorly influenced by the moral obligation which religious belief has imbibed in every human being.

FOUNDATIONAL DIMENSION OF ETHICS IN ISLAM

The word ethics is derived from the Greek word ethos, which means character. It represents a wide meaning of character, behavior or code of conducts. On the other hand, legal ethics specifically refers to principles of conduct governing an individual or a profession. In Islam, the word ethic is synonym with the term adab and khuluq. These two terms denote good behavior or a standard of conduct to be observed in social interactions. In the holy al-Quran, the term khuluq can be found in Surah al-Qalam verse 4 as Allah says: And surely you (Prophet Muhammad) have the best form of morals, and in surah al-Shu’ara verse 137: There is no other than khuluq of the ancient”. Apart from these, the Prophetic hadith had made reference to ethics and morality where Aishah reported that the Khuluq (Morals) of the Prophet was based upon the Qur’an”. The Quranic dictums and the Prophet’s tradition obviously demand that all Muslims should have a high moral standard of behavior and a good character regardless of what profession that they hold. Moreover, lawyers who have specialized knowledge in law are accounted and obligated to observe certain code of ethics in order to gain confidence and to build trust of the general public on the dignity of the profession. Lawyers must at all times observe the code of ethics and assume personal moral responsibility for the consequences of their personal actions failing which may amount to the commission of professional misconduct.

Islam is a practical system of life and it provides guidance for all walks of life. As a comprehensive  religion, Islam  covers  all  aspects  of  life  and  this  includes Shariah,  ethics  (akhlak),  and  belief  aqidah.  As the  foundation  of  Islamic  faith  is Tawhid, the basis for the ethical principle of lawyers also emanates from this concept. Allah says in al-Quran (3: 191) Those who remember Allah standing, sitting, and lying down on their sides, and think deeply about the creation of the heavens and the earth, (saying): “Our Lord! You have not created this without purpose, glory to You! Give us salvation from the torment of the Fire”. This verse provides a very basic and fundamental principle of vicegerency (Khilafah) in Islam where everything created by Allah has a purpose and human being is created to be the world’s vicegerent.

A concept of Tawhid is a philosophic foundation and added value to every Muslim in preserving what Allah commands and what He forbids. The principle of Tawhid derives important concept of Khilafah, trustee (Amanah), accountability (Taklif) and justice (Al- Adl wa al-Ihsan). As khilafah, lawyers are obligated to motivate every member in society towards piety (taqwa) to remind them against falsehood, uphold the truth and support the oppressed people against the cruelty. By putting a trust to mankind as a vicegerent, Allah plays active roles to monitor and involve in every affairs of human being and He is aware and knowing everything all the times. Allah says in al-Quran31:16 O my son! If it be (anything) equal to the weight of a grain of mustard seed, and though it be in a rock, or in the heavens or on the earth, Allah will bring it forth. Verily, Allah is Subtle, Well- Aware”. This verse clearly presents an Islamic concept of accountability which indicates that everyone is accountable to the God for his own deeds. As Allah knows everything and all mankind is answerable to Him, the principle of khilafah, amanah and al-adl wal Ihsan that derived from the supreme concept of Tawhid shall be the foundation of the ethical principles of lawyers in Islam.

 ETHICAL PRINCIPLES OF LAWYERS IN ISLAM

It is very important that lawyers perform the duties in accordance with certain norms or code of ethics. If judges are required to adhere to certain code of ethics, the lawyers also must uphold their standard code of conduct. Islam mentions clearly one of the basic ethical principles of the lawyers in the famous hadith narrated by Ummu Salama where the Prophet said: The Prophet said, “I am only a human being, and you people have disputes. May be someone amongst you can present his case in a more eloquent and convincing manner than the other, and I give my judgment in his favor according to what   hear. Beware! If  ever  I  give  (by error) somebody something of his brother’s right then he should not take it as I have only given him a piece of Fire”. This hadith lays down the principles of advocacy in court whereby a judge heavily relies on the arguments and submissions made by the disputing parties or their representatives. In this aspect, lawyers must be truthful and honest in conducting cases in court both by argument and as well as the manner of bringing out the evidence.

In general, the ethics may be classified into general ethics and ethics in court whereby the former refers to duty of lawyers to behave properly in their daily life and the latter refers to the behavior in the process of carrying out justice and fair play in court. For instance, general ethics require each lawyer not to be influenced by others, not to involve in bribery, not to be wary of litigants and to encourage reconciliation. In court, the lawyers shall remain calm, not to be influenced by those around them, to give equal treatment, to avoid lengthy proceedings, punctual and due respect to witness. Even though, many Muslims jurists refer to all of these ethics to be observed primarily to judges, it is submitted that they are also applicable to lawyers. Therefore, the ethical principles of lawyers in Islam consist of ethics to observe good behavior and conduct with candor, courtesy and fairness, to acquire knowledge, duty of diligence and competence, to uphold interest of the client, justice and dignity of the profession, not to appear for party represented by another lawyer, duty of disclosure, to observe confidentiality and to charge reasonable and proper fees.

Good Behavior and Conduct with Candor, Courtesy and Fairness

The obligation to observe behavior and good character is extremely encouraged in Islam. Abd Allah ibn ‘Amr said, the Prophet used to say: The best of you are those who have the most excellent morals.” In another hadith narrated by Abu Hurairah, the Messenger of Allah said: The most perfect of the believers in faith is the best of them in moral excellence, and the best of you are the kindest of you to their wives. In the eighteen hadith of the famous Imam Nawawi’s collection of forty hadith mentions the need of excellent  moral  as  Muadh  Ibn  Jabal  reported  that  the  Prophet  said:  Fear  Allah wheresoever you may be, follow up an evil deed by a good one which will wipe (the former) out and behave good-naturedly to people.

As regards the aspect of preserving courtesy, it is already practice of the lawyers to respect their fellow members by calling them “my learned friend” and junior lawyers will offer salutation to the senior lawyers. This is actually in line with the Islamic teaching of promoting a sense of brotherhood. Abu Hurairah reported that the Prophet said The younger one should offer salutation to the older one, and the one who is going along to the one who is sitting, and the smaller group to the larger group”. This hadith signifies that Islam really encourage Muslims to observe courtesy as it mirrors the individual’s character or akhlaq. In this regard, the lawyers shall show respect and courtesy to other solicitors so as to inculcate and build good image and reputation to the profession.

To be Honest

Lawyers must be honest and competent in order to ensure that judges are able to deal with the cases that come before them justly. Lawyers may find guidance of their duties to be honest and to establish justice as enjoined by the holy al-Quran. In surah al-Nisa verse 58 Allah says: “Allah commands you to fulfill your trusts to those to whom they are due and when you judge between man and man that you judge with justice, verily how excellent is the teaching which Allah gives you for Allah is He who hears and sees all things”. In this verse, justice is Allah’s attribute and to stand firm for justice is to be witness to Him, even if it is detrimental to our own interests or to the interest of those who are near and dear to us.

 

To Acquire Knowledge

In Islam, seeking knowledge is a duty of every Muslim as Anas reported that the Prophet said: “The seeking of knowledge is obligatory upon every Muslim“. In fact, Islam elevates and acknowledges the one who has knowledge over the worshiper. Reported by Imams Abu-Dawud and Al-Tirmidhi, that the Prophet Muhammad said, “Al ‘Aalim (learned person in the deen) is as much superior to al ‘Aabid (Worshiper) as the full moon is superior to all stars”. In addition, Anas said, the Messenger of Allah, said: “He who goes forth in search of knowledge is in the way of Allah till he returns”.

Duty of Diligence and Competence

Islam really concerns on the quality of works as the Prophet said: “Allah loves to see one’s job done at the level of itqan or wisdom.”. In another hadith Saidatina Aishah reported that the Rasulullah said: The deeds most loved by Allah (are those) done regularly, even if they are small (Bukhari and Muslim). These two hadith demonstrate the Islamic ethical principles on the duty of diligence and competence. The lawyers are required to improve their working standards to the utmost and it should be maintained constantly so as to avoid any occurrence of professional negligence which could harm the interest of the client.

To Uphold Interest of the Client, Justice and Dignity of the Profession

A lawyer is expected to act with all due courtesy to the court before which he is appearing, fearlessly uphold the interest of his client, the interest of justice and dignity of the profession. A lawyer is to balance amongst the interest of the client, justice and dignity of the profession. The duty to protect the client’s interest however shall be balanced with the needs to uphold justice and therefore, the act of hiding facts and evidences to protect the guilty client is clearly against the lawyers’ professional ethics.

In al-Quran, surah 5:1 Allah clearly reminds the Muslims on the principle of fulfilling each  of  their  contractual  obligations  where  He  says:  “O  you  who  believe,  fulfill contracts”. This verse presents a basic foundation on the principle of contract that every individual, society, corporation and the state including lawyers are bound by their contracts which defines the rights and obligations of the parties. The lawyers have duty to perform his contractual obligations in accordance with the term stipulated in the contract. In addition, Ibnu Umar reported that the Messenger of Allah said: A Muslim is the brother of a Muslim; he does him no injustice, nor does he leave him alone (to be the victim of another’s injustice); and whoever does the needful for his brother, Allah does the needful for him; and whoever removes the distress of a Muslim, Allah removes from him a distress out of the distresses of the day of resurrection; and whoever covers (the fault of) a Muslim, Allah will cover his sins on the day of resurrection“. In another hadith, Anas reported that the Prophet said: “Help thy brother whether he is the doer of wrong or wrong is done to him.”They (his companions) said, O Messenger of Allāh! We can help a man to whom wrong is done, but how could we help him when he is the doer of wrong? He said: “Take hold of his hands from doing wrong.” These hadith reveal that Islam acknowledges the lawyers’ duty to defend and to protect rights and interest of the clients. At the same time this fiduciary duty must be carried out in accordance with the Shariah rules and principles without neglecting the responsibility to uphold justice.

Duty of Disclosure

A lawyers is expected at the time of his being retained to disclose to the client all circumstances of their relation to the parties and any interest in connection with the controversy which may influence the client in the selection of counsel. Lawyers are responsible to uphold the truth no matter if it against himself or his parent or relatives or rich or poor. If lawyers have a personal knowledge that his client is a wrongful party, they shall not make any false claims as it against the ethical principles.  Abdu  Allah  reported  that  the  Prophet  said:  “Truthfulness leads  to righteousness, and righteousness leads to Paradise. And a man keeps on telling the truth until he becomes a truthful person. Falsehood leads to Al−Fajur (i.e. wickedness, evil−doing), and Al−Fajur (wickedness) leads to the (Hell) Fire, and a man may keep on telling lies till he is written before Allah, a liar. A general lesson from this hadith is that lawyers should be careful, cautious and seek the help of Allah to protect against any deception and to uphold justice without fear and favor.  Thus, lawyers must be truthful and never mislead the court.

Confidentiality.

Lawyers deal with a lot of private and confidential matters in handling cases and it is their duty to keep these matters as confidential and never utilize the related information for any purpose other than to protect the client’s interest and for the sake of justice. These are in line with hadith reported by Abu Hurairah, that the Prophet said: Whosoever relieves from a believer some grief pertaining to this world, Allah will relieve from him some grief pertaining to the Hereafter. Whosoever alleviates the difficulties of a needy person who cannot pay his debt, Allah will alleviate his difficulties in both this world and the Hereafter. Whosoever conceals the faults of a Muslim, Allah will conceal his faults in this world and the Hereafter. Allah will aid a servant (of His) so long as the servant aids his brother. Whosoever follows a path to seek knowledge therein, Allah will make easy for him a path to Paradise. No people gather together in one of the houses of Allah, reciting the Book of Allah and studying it among themselves, except that tranquility descends upon them, mercy covers them, the angels surround them, and Allah makes mention of them amongst those who are in His presence. Whosoever is slowed down by his deeds will not be hastened forward by his lineage. This hadith evidently proves that every lawyer has duty to keep secret of all communications with his client classified as private and confidential unless it is against the public interest and justice. Allah guarantees that to whom conceal the faults of others, He will conceal his faults in this world and the hereafter. It was reported by one of the companion of the prophet, Jabir bin Abdullah who heard the prophet said: ‘discussions are confidential (not subject to disclosure) except in three places: shedding unlawful blood, unlawful cohabitation and unlawful accumulation of wealth.” – narrated by Abu Dawud.

Conclusion

The foregoing discussion on the ethical principles of lawyers in Islam validates the existing professional ethics contained in the RPC. Islam highly insists that lawyers should preserve standard of conducts, to observe good ethics, conscience and piety. The foundational dimension of the ethical principles of lawyers is rooted on the principles of Tawhid. Islam adds further values for lawyers to preserve the ethical principles through the Tawhidic approach which derives other sub fundamental principles of Khilafah, Amanah and al-Adl wa al-Ihsan.          These distinct epistemological frameworks provide guidelines to all members of the legal profession that they are not only subjected to the RPC but also accountable and answerable to Allah the Almighty.

It is therefore clear that the various acts of misconduct like fraud, dishonesty, money laundering, indecency, deceit and other dishonourable conducts being perpetrated by some lawyers remain unjustifiable both under the RPC and under the Shariah because both are coterminous to a great extent in ensuring good ethical behavior from lawyers.

 

 

 

 

 

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