A month ago, Nepali Congress lawmaker and former minister Mohammad Aftab Alam was arrested for the alleged murder of at least 23 persons in Rautahat 12 years ago. The fact that 33 senior lawyers have committed to defending the accused high-profile criminal before the court has drawn the attention of the public, with many questioning the move on moral grounds. It raises the question of whether a lawyer should defend someone whom the public opines to be guilty of a heinous and immoral offence.

According to our adversarial legal system, lawyers from each side are to represent their parties before an impartial judge. Also, an accused’s right to be represented by a lawyer is a fundamental component of our criminal justice system. It is a right guaranteed by the constitution. In criminal cases, especially, lawyers are a necessity, not a luxury. Otherwise, imagine the misuse of authority in a system where one side is dismissed from having a lawyer.

However, there are two schools of thought when it comes to the question of whether a lawyer should defend someone who the world knows to be guilty. One states that it is entirely upon a lawyer whether he/she should or should not take up a case, as lawyers cannot pass their judgement on the client they defend. That is for the judge to decide—and the jury in some countries. Whereas, others may be reluctant to approve of lawyers accepting cases that may have moral consequences. Undoubtedly, a lawyer is, or at least ought to be, subservient to the words of the statute and to the moral code. More importantly, they have one job to perform—to defend their clients, and that is also what our legal system has decided as their role.

Our legal system is based on the principle that every person is presumed to be innocent unless proven guilty. And unless the court of law convicts a person, a lawyer’s conscience should not be held higher than the judgment of the court. In fact, in a system where an accused is not allowed to be defended by a legal practitioner, despotism would soon follow. The state could misuse such a system at great length, capitalising the public opinion against the accused. When someone is brought to trial by the state, the state agencies are activated to build their best case against the accused. The prosecutors present their case based on the findings of an investigation by the police. Both prosecutors and police are branches of the state. To add media coverage on top of this, which might sway public opinion against the accused, and to take away the accused’s right to be defended could easily make the trial one-sided.

It is only by defending the accused against the charges, and by challenging the evidence produced by the state, that our system resonates justice. This practice ensures that the trial has a chance of being fair. If the state had absolute power to incriminate someone on the fact of a mere accusation, many innocents would be behind bars.

But what if the accused confesses their guilt before the lawyer? Lawyers follow the cab-rank rule, which states that a cab, at any time, is duty-bound to take any passenger who is willing to pay the complete fare. This rule is not strictly enforced on lawyers, but the constitutional oath that they take when commencing their profession makes them bound to defend the accused, regardless of whether that person may or may not be guilty. Moreover, a lawyer cannot betray the confidence a client puts in him or her. It would only bring dishonour to the profession which places great pride in the client-lawyer privilege.

So, while there are strong legal reasons to hold on to the practice of lawyers defending suspected criminals, it could still be questioned whether this is morally correct. Interestingly, Section 3(1) (a) of the Nepal Bar Council Code of Conduct leaves this to the reader's interpretation. It provides a blanket definition that a legal practitioner shall not commit any act contrary to the basic principles of morality. But who is to decide what is moral and immoral? What are the basic principles of morality, to begin with? Should a doctor, too, be held to be immoral if he treats a patient who confesses to being guilty of committing a heinous crime?

It should be up to lawyers whether they want to take up cases that have moral consequences, or if the cases have the tendency to raise questions on their morality. If lawyers deny their service to a certain accused, or even to the victims, fearing the public rage against them, it is certain that trust in the legal system would soon erode. It is up to the court to decide whether someone is guilty or innocent, not the lawyer.