By Omar FaFa M’Bai, Esq
Which institution carries greater weight? There is consequently no satisfactory general answer that a Bar Association necessarily carries greater weight than a Law Society, or vice versa.
The answer depends upon the issue under consideration.
Where statutory regulation is concerned, the institution to which legislation assigns that responsibility carries the relevant legal authority. Where professional representation is concerned, membership, mandate, institutional history, credibility and quality of reasoning become important.
And where a dispute concerns the interpretation of the Constitution, neither professional association possesses the final constitutional word merely because its membership consists of lawyers.
That responsibility ultimately belongs to the courts.
This is an important boundary. Professional bodies may analyse the Constitution, express views, criticise developments, advocate reform and, where legally entitled, participate in litigation. But advocacy should never be confused with adjudication.
Perhaps the most interesting aspect of the present situation is that both organisations contain highly accomplished lawyers. How, then, can eminent legal minds examine the same question and arrive at different conclusions?
The answer is remarkably simple: that is what lawyers do.
Two experienced counsel can examine the same provision and advance opposing interpretations. Trial judges are reversed by appellate courts. Appellate judges themselves disagree. Supreme Courts deliver majority and dissenting opinions.
Some of the most influential contributions to common-law jurisprudence began as dissents.
Lord Atkin’s celebrated dissent in Liversidge v Anderson 1942 AC 206 (HL) 244 (Lord Atkin dissenting) is a powerful reminder of the value of independent judicial thought. His insistence that, even “amid the clash of arms, the laws are not silent” has endured precisely because he was prepared to stand apart from the prevailing judicial view. There is an important reason why this authority fits this article exceptionally well. Lord Atkin stood alone when four distinguished Law Lords reached one conclusion and one equally distinguished Law Lord reached another. History came to regard the lone dissent as the great constitutional statement of the case. This is a powerful illustration of my central argument that disagreement among eminent lawyers does not necessarily indicate incompetence, bad faith or institutional dysfunction. Sometimes principled disagreement is precisely how the law advances.
Disagreement among lawyers should therefore not automatically be characterised as division. The critical distinction is between principled disagreement and institutional dysfunction.
Could the conflicting positions have been avoided? Perhaps they could have been. But there is another question worth asking: should genuine disagreement necessarily have been avoided?
If two organisations sincerely interpret an important constitutional question differently, compelling them to manufacture consensus would serve little purpose. Artificial unanimity is not institutional strength.
What could perhaps be improved is consultation.
Where an issue touches the Judiciary, constitutional governance, professional independence or administration of justice, there may be considerable benefit in professional organisations consulting one another before adopting major public positions.
Consultation does not mean seeking permission. Neither institution should possess a veto over the other’s independent judgment. It simply means listening before speaking and understanding before disagreeing.
Where agreement is possible, a common professional position would undoubtedly carry considerable weight. Where agreement proves impossible, the organisations could acknowledge their differences respectfully.
There is nothing professionally embarrassing about saying: “We agree upon the principle but differ upon its legal application.”
Indeed, courts say essentially that every time a dissenting judgment is delivered.
The question of what may motivate different positions requires particular care. It would be unfair to assume, without evidence, that disagreement between respected lawyers must arise from politics, personalities, ambition or private interests.
There are many perfectly legitimate explanations.
Different organisations may have different memberships and institutional histories. Their leaders may have different professional experiences. They may attach different weight to competing constitutional principles. One organisation may conceive its role as requiring active intervention in constitutional controversies, while another may believe professional restraint is preferable.
Generational experience may also influence legal outlook. Lawyers whose professional lives developed during different constitutional periods may understandably possess different instincts concerning the relationship between the Judiciary, Executive and organised legal profession.
Areas of practice may equally influence perspective. A constitutional litigator, corporate practitioner, academic lawyer, government lawyer and practitioner with substantial international experience may approach the same institutional question from different starting points.
None of these differences necessarily establishes bad faith.
The better approach is therefore to interrogate the reasoning rather than speculate about the motive.
Does either organisation speak for every lawyer? This question deserves particular attention.
A professional association is entitled to speak according to its constitution and legitimate decision-making procedures. But an institutional position should not automatically be presented as the personal opinion of every member of the profession.
There is an important difference between saying “the Bar Association has taken this position” and saying “Gambian lawyers have taken this position.”
The first may be an institutional fact. The second may be inaccurate where significant professional disagreement exists.
That distinction protects everybody. It protects the association’s right to express its institutional position while preserving the individual lawyer’s right to professional conscience.
A lawyer should be capable of respectfully disagreeing with the leadership of any professional association without being considered disloyal to the profession.
Professional solidarity should never require intellectual conformity.
There may therefore be genuine advantages in institutional pluralism. Where one organisation does not adequately reflect the views of some practitioners, another professional platform can provide space for legitimate alternative perspectives.
That need not weaken the profession. Properly managed, it can strengthen it.
But institutional pluralism also carries risks.
Two organisations should not gradually transform themselves into rival camps competing for political relevance, public attention or professional dominance. Once institutional disagreement becomes personal rivalry or factional conflict, the entire profession risks losing credibility.
The ordinary citizen may not carefully distinguish between competing professional organisations. He or she may simply conclude that “the lawyers are fighting amongst themselves.”
That perception would damage both institutions.
Lord Hewart’s famous proposition that justice should “not only be done but should manifestly be seen to be done” reminds us of the importance of public confidence. Professional institutions concerned with the administration of justice should equally remain conscious of how their conduct appears to the society they serve.
And for a possible way forward? The preferable future is therefore neither forced institutional merger nor perpetual institutional competition.
It is principled coexistence.
There could be considerable value in establishing regular consultation between the Gambia Bar Association, the Gambia Law Society and, where appropriate, other institutions concerned with the administration of justice.
On major questions concerning judicial independence, professional ethics, constitutional governance and law reform, dialogue could occur before competing positions become publicly entrenched.
Where consensus exists, the profession can speak powerfully together.
Where disagreement remains, both organisations should be free to explain their positions respectfully and independently.
Such an arrangement would not demonstrate weakness.
It would demonstrate institutional maturity.
One profession does not mean one opinion
Lord Bingham’s writing “Lord Bingham, “The Rule of Law” (2007) 66(1) Cambridge Law Journal 67-85 on the rule of law continually returns us to the supremacy of law over arbitrary power and personality. That principle has particular resonance for the legal profession itself. He said, “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly and prospectively promulgated and publicly administered in the courts.” Page 69 of his 2007 article.
Our allegiance as lawyers ultimately cannot be to personalities, factions or professional organisations above everything else. It must be to law, justice, professional conscience and the constitutional order.
The existence of two professional organisations should therefore not itself concern us.
The real concern should arise only if their coexistence undermines the administration of justice, confuses regulatory responsibilities or transforms legitimate professional disagreement into permanent institutional hostility.
The present circumstances may consequently provide an opportunity rather than merely a controversy. They invite us to clarify the respective positions of the General Legal Council, the Gambia Bar Association and the Gambia Law Society and to develop a mature framework for their future interaction.
The question with which we began “Why do we need a law society when we already have a bar association?” may therefore be the wrong question.
Perhaps we should instead ask: Can one profession accommodate more than one institutional voice while remaining united around the principles that define it?
There is no reason why it cannot.
A confident profession should not fear disagreement. A strong institution should not fear another institution. And accomplished lawyers should not regard a different legal conclusion as evidence of disloyalty.
The measure of a mature legal profession is not that all its members speak with one voice.
It is that when they speak with different voices, they remain capable of listening to one another, respecting one another and recognising that none possesses a monopoly over professional conscience.
One profession can accommodate two voices. What it cannot afford is two camps incapable of dialogue.
Ultimately, both the Bar Association and the Law Society should be judged not by which speaks louder, which has existed longer, or which commands the greater number of distinguished names, but by the consistent contribution each makes to justice, consistent professional independence, constitutionalism and the rule of law.
For those principles are larger than either institution.
And they are the common ground upon which every member of the learned profession should ultimately be able to stand.
Ends.
Omar FaFa M’Bai is a legal practitioner, a governance advocate, and a parent based in Dubai, UAE. He writes regularly on institutional integrity, leadership, and education across Africa, Middle East, and Asia.