Legal profession has been regarded all over the world as a very respectable, noble and prestigious profession. The Bar and Bench are called two wheels of a samecart as well astwo sides of coin involved in the dispensation of justice. The prestige, nobility and honour of the legal profession and judiciary is only possible by the cordial, trusted and reciprocal relationship among Bar and the Bench. It is very important in the administration of justice and promotion of standard of justice. The bench-bar relationship with close ties allow judges and lawyers to cooperate and collaborate to reach in the correct, just and reasoned judgement as well as binds them together to sustain public trust on justice. The involvement of lawyers in the regulation of the Bench and courts commands on regulation of the Bar can enrich public trust and confidence to both institutions and in return strengthened rule of law, judicial legitimacy and independent judiciary.
Keywords:Administration,Bar-Bench relation, court, judiciary, justice, legal profession.
In a physical sense, Bar is a long rigid piece of wood, metal, or similar material, typically used as an obstruction. In court system, a fence in courtroom is used as an area reserved for the judge s, lawyers; the court officers and members of the jury intending to separate them from the suitors and other beneficiaries of the court services. By this physical backup of the tradition, Bar is a term given a counsel or an attorney licensed for and stand to represent the interest of the party of the lawsuit before a Bench of a Court authorized to sit in the Bar. ‘The term ‘Bar’ was originated in England with the partition of the bar fixed for dividing the court hall into two parts for the purpose of separating lawyers and officers of the court from suitors and other general public’. Presently, the meaning of ‘Bar’ has been widened and used to denote the practicing members of the legal profession in a given community, all those who have the right to plead in a court. The whole body of advocates collectively are figuratively called the Bar from the place where they usually occupy in court. Precisely, Bar is a comprehensive and common umbrella organization of practicing lawyers which works for the common interests of the lawyers, norms, values and dignity of legal profession. Thus, Bar represent association of lawyers.
Similarly, structurally a Bench is a seat for sitting, typically made of wood or else or a worktable that is used for office work. It is the area occupied by the judge in a courtroom. However, in court’s justice system Bench means all the judges and the court officials taken together as distinguished from the ‘Bar’ in the courtroom. Bench represents the justice dispensing authority in a court system. Thus today, sits of the judges and officers in the courtroom are known as Benches and particular part of space of the courtroom where the lawyers sit in are represented in a term Bar and Bench. Both Bar and Bench are integral parts of the justice delivery and represent whole profession of the lawyers and judges. In Nepal Supreme Court, High Courts, District Courts, Special Court etc. are understood as Benches and Nepal Bar Association and its units; a collective of lawyers of Nepal form a Bar.
Legal profession is one of the highly esteemed professions. It has a high character for learning and honesty. This profession is learned, noble and honourable profession which is part and parcel of the court. The standard, nobility, decency, elegance and honour of the legal profession is maintained as well as sustained by the cordial and reciprocal relationship among Bar and the Bench. The good relationship between Bar and Bench is very important in the administration of justice. It is also important in the promotion of highest standard of justice and to establish honourable and fair dealings with parties of case, witness as well as other stake holders of legal profession and judicial system.
Being parts and parcel of justice system as a whole Bar and Benches have distinct roles even though both of these play for justice dispensation to the public at large. Bench is scrupulous for justice dispensing as bounded by Constitution, law and principles of justice where Bar is conscientious to rights and best interest of their party. However, collectively both the Bench as justice deliver and Bar as contributor to the delivery of justice have roles to play to enrich access of the people to justice and ensure quality of justice that people faith to judiciary. In this scenario, this article briefs about the theory and practice that exist in Nepal as Bar and Bench relations basing onrespective legislations.
- Standard of Bench
All general universal and regional human rights instruments guarantee the right to a fair hearing in judicial proceedings (criminal, civil, disciplinary and administrative matters) before an independent and impartial court or tribunal. The judicial system in a country is central to the protection of human rights and freedoms. It is an essential check and balance on the other branches of government, ensuring that laws of the legislative and the acts of the executive comply with international human rights and the rule of law. Law enforcement and prosecutorial agencies and independent judiciary and legal profession in full conformity with applicable standards are indispensable to human rights and justice. The existence of independent and impartial tribunals is at the heart of a judicial system. Within the justice system, judges, lawyers and prosecutors must be free to carry out their professional duties beyond interferences. Thus, the judges have a right and a duty to decide cases before them according to the law, i.e., Constitution and other national and international laws. The judges are obliged to “decide matters before them impartially, on the basis of facts and…law”; have jurisdiction over all issues of a judicial nature ; and require to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 
The Constitution of Nepal 2072 B.S under Article 20(3) provisioned that, “any person who is arrested shall be produced before the adjudicating authority within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority; and any such person shall not be detained in custody except on the order of such authority”.  Every person shall have the right to a fair trial by an independent, impartial and competent court or judicial body.  Article 126 of the Constitution obliges the judges to exercise power relating to justice only in accordance with the provisions of this Constitution, other laws and recognized principles of justice.  Article 127 confirms that Supreme Court, High Courts, and District Courts exist as regular courts and other institutions may be established according to the need to adopt other means of alternatives of dispute resolution or judicial bodies to adjudicate cases at the local level according to the law. Similarly, the Chief Justice shall have the ultimate responsibility to make effective the administration of justice by the Supreme Court, subordinate courts, specialized courts or other judicial bodies. 
While discharging their duties, in accordance with law, judges are empowered in receiving complaints/claims/petitions and conducting hearings, collecting evidence and managing the proceedings including authority to compel the production of testimony or documents from various persons or organizations. However, in exercise of these authorities they are bound by professional duties. Their judicial accountabilities include: must not be any discrimination in the procedural rights afforded to the parties including equality of arms, fundamental entitlements including, the right to legal assistance and representation by a lawyer and adequate time to prepare the defence, and expeditiousness of the proceedings. It is a mandatory duty of a judge, on behalf of state, to ensure legal assistance assigned, in any case where the interests of justice so require, without payment by him in any such case if he does not have sufficient means to pay for it. The bench is bound to allow Bar to act proactively in terms of discharging its duty.
- Standard of Bar
Article 14(3)(b)(d) of the International Covenant on Civil and Political Rights 1966 has not only provisioned the right of the offender who is charged with the criminal offence to communicate and make their defence through lawyer of their choice. Articles of the Basic Principles on Role of Lawyers, obligated lawyers to maintain the honour and dignity of their profession as essential agents of the administration of justice all the time ; advise clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; assist clients in every appropriate way, and taking legal action to protect their interests; assist clients before courts, tribunals or administrative authorities, where appropriate ; protect the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession ; and always loyally respect the interests of their clients.
The Constitution of Nepal 2072 (2015) recognises above roles of the lawyers under Article 20(2)as inbuilt fundamental of the entitlements of person arrested as ‘to be defended by such legal practitioner’. Nepal Bar Council Act, 2050 (1993) make restriction to the unauthorized persons to practice legal profession without holding the licence of legal practitioner  and have recognized legal practitioner into three categories i.e. Senior Advocate,Advocate and Pleader.  A senior advocate and advocate shall be entitled to be present, plead and argue before the Supreme Court or any office or court or authority of Nepal. A pleader shall be entitled to be present, plead and argue in courts, offices and authority except the Supreme Court of Nepal. Section 23 of the said Act mentioned about the right and order to address before the authority for a hearing of the case according to the seniority and categories of legal practitioners.
Similarly, ‘no legal practitioner shall be arrested in a civil case concerning any claimed amount or penalty, when he/she is on the way to present, plead and argue in a case on behalf of a party to the case’. The Constitution, in the provisions on judiciary, considers a lawyer (senior advocate or advocate)constantly practiced law for at least fifteen years qualifying to be a judge of the Supreme Court;  practiced law for at least ten years to bejudge of the High Court ; and practiced law for at least eight years as an advocate to be a judge at District Court . These all suggest that Bar, on the other hand, is equally responsible agency for discharging the functions of judicial dispensations.
The Code of Conduct of Legal Practitioners, 2051 (1994) prescribed the legal practitioners to maintain the court decorum. Legal practitioner must be punctual to the court, appear in court in prescribed dress with black coat, show due respect to the Bench and should treat with courtesy to the officers/staffs of the Court.  A legal practitioner shall not abuse or cause to abuse the judicial process , not spreador disseminate or transmit a false information of any kind which may bring dishonor to the court or judge during the course of the discharge of judicial function , not knowingly assert any fact before the Bench unless the same could be substantiated from the documents from his case file  and not appear before a court under the influence of any intoxicating drinks or drug the course of his professional duty.  All these provisions of the code help to promote ethical and standard legal professionalism.
Bench i.e. Supreme Court of Nepal give the title of senior advocate with regard as arecognition of high profiling of legal profession to a practicing advocate. This designation is grantedon the basis of skills, experience, knowledge, expertise, devotion and contribution made in the field of justice dispensation and seniority in the legal profession. ‘If the Supreme Court finds that an advocate has helped to the courts and society by practicing as a legal practitioner in the Supreme Court or Court of Appeal for at least fifteen years, it may confer the title of senior advocate to such a legal practitioner as an honor and such a senior advocate shall have to maintain good conducts as prescribed’.  The Supreme Court shall take consent of the advocate while conferring him/her the title of a senior advocate.  All these legal provisions recognized the identity, dignity, role and representation of legal practitioner in the case, legal profession and justice delivery.
- Interplay of Bar and Bench: A Sacred Collaboration
Bar and the bench seems to be different from outside; both of them works for same purpose inside i.e. for justice. ‘The lawyer is the watchdog of the civil and constitutional rights of the people.’ Lawyers represent interest of the clients grounded laws and the judges examine the fact, law and evidences for making the appropriate and reasoned judgement with the purpose of ensuring justice. Thus, Bench and Bar both work for same purpose justice siting in different positions. The Bar and Bench are regarded as the two wheels of a same cart as well as two sides of a same coin involved in the dispensation of justice. If justice is a cart they are two wheels and if its discharge is singlecointhey are two sides of that and never be separated. They are co-related to each other in such a way that one cannot be effective without the other. Both are supplementary and complementary to each other and considered as shareholders of justice delivery mechanism. If ‘administration of justice is stream which has to be kept pure and clean. It has to be kept unpolluted’, collaboration with professional sanctity between bar and bench must prevail. The sound, effectiveness and success of legal system, legal profession, judicial system and administration of justice depends on the good, mutual, cardinal, brotherhood relationship and total unity between Bar and Bench.
Benchmay never forget the duty to set an example of courtesy to the Bar and Bar to take initiatives to avail service to access to justice and to improve the efficiency of the courts. ‘The legal profession has been created not for private gain but for public good and a partner with the judiciary in the administration of justice’. ‘In the history of the world,…the lawyer and the judge have played no small part; they have borne their full responsibility in safeguarding life, liberty and promoting the pursuit of happiness, and that is, if anything, greater today than before, when new problems are facing the world in every corner’. Both professions are backgrounds for each other. ‘Mutual respect and cordial relations between the Bar and Bench is necessary for the dispensing justice, a lawyer’s studyof the case is not to moulds and initiates the case in the court; but are orderly and clear statement of the facts with a knowledge’ for realization of rights, i.e., justice. ‘Lawyer plays role of officers of the court, beholden to judiciaries as the regulators of practice of law’.
The solemn duty of the Bar is that hold its members to realize as officers of the court by virtue of the oath which theytake, should at all times perform the duties of their high offices in a way that the public not wonder on truth. None of its membersshould lose sight of duty as officer of the court . The lawyer as an officer of the court serves the court by representing a client before it and they have an obligation to promote justice and effective operation of the judicial system. Bar (Lawyers) support the work of Bench (judges) by bringing disputes, claims and cases before the courts by filtering out base less or clearly frivolous claims, developing their arguments thorough study, discovery and research and advancing their positions thorough briefing and oral advocacy. Lawyer draft, initiate and file the case in the court of law. After registration of case in the court of law the proceedings of the case will be started. Members of the bar make the Bench functional and workable.
Bar may assist the Bench through in-depth studies on the issues that are being disputed, discover a clear linkage between fact and law. Lawyer as the member of Bar make every reasonable effort to prepare themselves fully prior to court appearances. They clarify the Bench about the facts, fact in issue, relevant facts of the case, concerned legal provision, evidence, precedents, arguments, logic and claims of the case in front of the Bench. Bench on its part, requires to give leadership and guidance in exacting the facts in scientific method with correlating them to the substance and procedures of the laws. ‘The presiding judge’s demeanour, patience, sense of humour, and control dictate the efficiency of the proceeding’.  Respecting privileges of bar is not to be taken as a formal requirement or burden but as an opportunity of disclosure of fact and law to resolve the matters ensuring that best interests of the parties are served. The right of the counsel to insist the arguments is to be respected by the judge  as strong support to think on alternative measures to ensure justice. Possessing calm temper, repressing own irritability, are essential elements for Bench if it feels that justice delivery is a pious role and justice is not a privilege of judge. George Sharswood rightly observed as: where passion is allowed to prevail, the judgment is dethroned. Allowing Bar fullest opportunity to present their case  is mandate of the Bench. Undue interference to the lawyer by judge merely tends to hinder, the ascertainment of truth.  If a lawyer is upset by discourteous treatment, the harm might to imposed by the judge to the party of the case. No judge should desire that the bar should be servile.  So, the Bench must sincerely and patiently listen and respect the pleadings and arguments kept by the lawyer in front of the Bench.
Judges ought always to acknowledge their obligations to the Bar for aid in reaching correct decisions. Bench depends greatly on the assistance of Bar in the proceedings. Factual and legal reference put forward by member of the bar keeps the Bench alert to arrive at a correct judgement and without that it would be a superhuman task for the bench in arriving at a satisfactory judgement.  The administration of justice is the most difficult of all human tasks and therefore, demands keenness of penetration, large acquaintance’ and coordinal relationship between Bar and Bench. Dean Pound urged the Bench and Bar to take responsibility for weaknesses in the administration of justice.  Bar should take obligation of fairness, accuracy and relevance of the fact and law and refrain from citing overruled decisions or a repealed statuteand guard sincere cares on error. In the common effort, each in their own way, to do their duty, Bar and the Bench must cooperate in the work-a-day tasks with conscientious preparation, perfect frankness, good manners and relief from unnecessary labours. Use of intemperate andscurrilous language are to be avoided by both. Both should be aware on the common obligations toward larger society and common good of general public. There is a well-known maxim, “Justice delayed is justice denied”. Delay and the absence of judicial accountability proclaimed as a crisis in the court. Court tries to finalize the case promptly and Bar should do everything possible to avoid delays and to expedite the trail. Prompt action and justice delivery in the courts depends not only on the performance and efforts of Bench but also on Bar.
Dignity of the judicial office is essential for the survival of the society.  Bench and Bar must uphold the dignity of the judiciary as an institution.  ‘If the Bench is not respected, justice may result in the complete death of the rule of law. Dignity and decorum of the Bench is all the time associated with the dignity of Bar and to be aware into disrepute’ of justice system. Bar is entitled to refuse to represent clients persisting improper conduct, leading to spoiling of judicial integrity. Bar should always bear in mind that punishment for contempt of court is intended to protect the public confidence justice  and contemptuous attempts by members is same. Bench is not and may not be above law but more compelled by the law. Fairness must be the lifeline of the Bench and duty must be discharged without fear or favour, affection or ill will.  Degradation of ethics may not only lead an individual lawyer to punishment and suspension from the pious task may spoil the image of the system and justice at large. Therefore, upholding professional sanctity, accountability and integrity are core for both.
Bar develops the norms, values and culture of legal profession which is also acknowledged and supported by the Bench. There are certain professional responsibilities of the lawyers towards the court which fall under the professional ethics of the lawyer. Common work creates the potential for judges and lawyers to work together in promoting competent and ethical conduct. Bar examines and evaluates the activities and programs of Bench and the Bench also does the same. So, lawyer’s and judge’s disciplinary systems ultimately controlled by the judiciary and vice versa. It is equally the duty of the judiciary not only to be polite towards the members of the Bar but to do everything possible to advance in its high traditions. Likewise, in the court proceedings both Bench and the Bar use formal, courteous and respectful words. Lawyer address the bench by several respectful words like “your honor, your excellency, shreeman” and bench address members of the Bar as counselor, biddwan or learned personnel.
A self-respecting independence in the discharge of professional duty, without denial or diminution of the courtesy and respect due the judge’s station, is the only proper foundation for cordial personal and official relations between Bench and Bar.  The involvement of bar in the judicial performance evaluations as well as regulation of the Bench, and courts in the regulation of the Bar, can therefore increase public confidence in both institutions, which in turn promotes their legitimacy and independence.  Bar plays to protect the dignity and independence of judiciary. If the dignity of judiciary is maintained the dignity of Bar and legal profession is enhanced. So, to make the judiciary as a temple of justice both of them have respect and harmonious relation which would increase public confidence in the legal profession, courts, thereby strengthening judicial legitimacy.
If the independent judiciary is the pillar of democracy, the Bar is the foundation of the independent judiciary. The Bar is the mother of the Bench and the bright mirror of the judicial officers whose image, character and conduct is correctly and visibly reflected therein, and it is for the Bench to nurse and nourish the merits of the Bar. In the justice delivery system, members of the Bar are as much a party thereby as the justice and it is the closest possible harmony between the Bar and the Bench that can yield the best results in achieving the objectives enshrined in the constitution. A strong ethical legal profession engaged in fairly in profession strengthen the independent and impartial judiciary.
There are intrinsic collaborations between Bar and Bench in several aspects. In many instances, bar voluntary contributes to the bench for the case of justice. This is reflected in participation as amicus curiae, academic inputs to achieve justice. Bench has not only recognized lawyer as the representative of their client in the court as plaintiff or defendant instead of this Bench also recognized Bar as amicus curiae (friend of the court). Also Bench gives due importance to the role of the Bar for the institutionalization of amicus curiae.‘Lawyers participation as amicus curiae in certain specific technical cases provide expertise legal issues of particular importance to Bench’, arranging legal assistance to needy people and even enriching legal literature. In certain complex and technical matters court invites and welcome members of Bar who are expert of the respective field for getting information and details on that subject matter.
Likewise, in the collaboration of both Bench and Bar launch legal literacy programs under court outreach strategies and programs to make the citizens aware about the basic legal provisions and for socialization of law. The unified collaboration of Bar and Bench on the issues of legal literacy, pro-bono, legal aid schemes aids to fair trail, access to justice as well as meet the social obligation o and sociology of legal profession. Bar associations and court frequently organize various programs, lectures, discussion sessions, organise talks on legal topics, workshops, conferences and publications covering a wide range of legal topics. Bar aids the bench to maintain, reform, and practice in an effective conduct of court system.
The background of the judges is lawyer and they are also lawyers first before ascending to the bench as well after their retirement. In the appointment of judge of Nepal; lawyers also get chance to be appointed. In the district court the qualified lawyers can be appointed after passing the written and oral competitive examination. Equally in the High and Supreme Court the focus of attention including recommendations is made from lawyers to fill judicial vacancies. As per these constitutional and legal provisions, the practising lawyers can be qualified as well as eligible to become judge indicates that, becoming the lawyer is the pre-qualification to be a judge. In the same manner, after the retirement also the judge of the high and district court can engage in the legal practice. This provision also clarifies the relationship between the Bar and the Bench.
Bar consider Bench as a supporter and guardian. Bench and Bar are custodian of justice where Bench acts as guardian and Bar as defence. While in the programs of Bar associations have the great influence of Bench. In every activities of Bar consultation with judges are held and bar calls judge as a chief guest in their programs as well. Judges not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Unified Bar and Bench should persistently and aggressively try to resolve the most serious problems facing the justice system and legal profession for improving the quality of legal services and the activities of courts. It maximizes efficiency or efficacy of their work. It is also helpful to fulfil the policy objectives of justice system generally, and to the legal profession.
In the Nepalese practice in the composition or formation of Judicial Council, Nepal Bar Council, Mediation Council, Notary Public Council there are lawyers or the representative of Bar. Equally, there are several committees of court where there is representative of bar i.e. in the court management committee the president of Nepal Bar Association acts as a member, in the investigation committee, case management committee of court, edition and publication of Nepal Kanoon Patrika under Supreme Court there are members or representatives of Bar.Hence, the success of programs of both Bar and Bench depends on their comfortable interactions and relationship.
Bar identifies the principal policies pursued by the judiciary and evaluates how effectively those policies are working and gives the result. Much of this influence comes from proposals by Bar association sections and committees. Courts can be expected to take seriously proposals for improving judicial operations when these proposals come from practitioners who regularly appear before the courts.Collaborative efforts of both are to maximize efficiency to promote productive work and uphold judicial good governance, accountability, transparency, and to increase the prestige of judiciary and legal profession. That is to sustain the independence of judiciary by the functioning of the Bench and the Bar.
Bench and Bar are to sides of the collectiveness of the legal profession and pillars of the state as a part of judiciary. Bench sometimes takes Bar as a civil society wing alone and compares it with the other interest groups such as media. No doubt that media and other wings of civil society have great roles to safeguard independence of judiciary, however, the bar remain in frontline to fence independence of judiciary as it has double roles in the system. One the one hand Bar can claim itself as a wing of the civil society, on the other it is part and parcel of the judiciary. Therefore, Bench should be always enthusiastic to inculcate professional Bar and has to invest resource to improve the Bar as whole to get quality assistance by it in terms of delivery of the services.
Relation between these two entities must groom with mutual respect and cooperation than arising conflicts of interests. The relation between Bar and Bench help regainingthe public trust and confidence of justice and judiciary. Both institutions should recognize the rooms for reform and may bring result in favour of justice at large. By analysing the above international and national legal instruments and Nepalese constitution the author made the finds that, there are several provisions related to the Bar and Bench relationships. The legal provisions clearly state about the roles and responsibilities of the both Bar and the Bench. Both of them must work actively to fulfil their role and responsibilities with proper collaboration among them. A reshaped relationship between them could be mutually beneficial for increasing the legitimacy and independence of both institutions.Close ties between Bar and Bench is never ending process until the judiciary, legal profession and notion of justice prevails. They should coexist interdependently independent for the cause of justice.
About Author: The author is a practicing advocate in Supreme Court of Nepal, distinguished scholar, law teacher, and thinker. He is not new in academic writing and several areas of legal literature; as he has written extensively and authored three books and several research articles on different legal issues in reputed journals of Nepal. He is available at 985602593, email@example.com. This article is published in Nepal Bar Council Law Journal 2019.
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