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Petitioner: RAB NAWAZ DHADWANA, ADVOCATE and others VS Respondent: Rana MUHAMMD AKRAM, JUDGMENT
Court Name: Lahore High Court Judge(s): Amin-Ud-Din Khan, Ayesha A. Malik, Syed Mansoor Ali Shah Title:RAB NAWAZ DHADWANA, ADVOCATE and others vs Rana MUHAMMD AKRAM,
JUDGMENT
Reported As: PLD 2014 Lahore 591 Result: Order accordingly Judgment JUDGMENT Introduction SYED MANSOOR ALI SHAH, J.---The process of decision making by the Provincial Bar Council in case of cessation of membership of an elected Member and the corresponding filling of casual vacancy through co-optative process. The foundational role and jurisdiction of an impartial Chairman i,e, ex-officio Advocate General for the Province, prevalence and rampancy of adhocism and unexplained delay in constitutional appointments. The consequential dysfunctionality of the laws linked with the constitutional appointment including Legal Practitioners and Bar Councils Act, 1973 and the operational paralysis of self-regulation by the Punjab Bar Council due to the vacancy of the post of the Advocate General are the pivotal issues that have come up for adjudication before us in this case. Constitution of the Full Bench. 2. Through the instant petition the petitioners challenge interim order dated 6-6-2014 passed by the Appellate Committee of the Pakistan Bar Council. They submit that the order of an Additional Advocate General with a 'look aftercharge of the office of the Advocate General, appointing the petitioners as Members of the Punjab Bar Council under section 16(b) of the Legal Practitioners and Bar Councils Act, 1973 (the "Act") is not appealable under section 13(2) of the Act. They also seek protection of their appointment notifications as Members of the Punjab Bar Council, issued by the same Additional Advocate General. Respondents Nos.1 to 7 raised serious objections to the validity of the appointment notification of the petitioners and the lack of due process and fairness in de- notifying respondents Nos. 1 to 7 as Members of the Bar Council.
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3. Absence and lack of clarity of structured decision-making process within the Punjab Bar Council pertaining to removal (de-notification) of an elected Member under Section 5C of the Act and the corresponding filling of casual vacancy (notification) under Rule 28A of Pakistan Legal Practitioners and Bar Councils Rules, 1976 has compelled the Members to approach this Court more than once in the last few months. In order to resolve this continuing bone of contention between the opposing groups of the Punjab Bar Council, we felt it was necessary to streamline the procedure and decision making process for removal and filling of casual vacancy of a Member or in other words, procedure for actualizing Section 5C of the Act, being mindful of the persisting vacancy in the office of the Advocate General for Punjab. The instant petition, therefore, unfolded a set of foundational questions, touching upon the significance of the office of Chairman (ex-officio Advocate General) under the scheme of the Act, the decision making process of a Provincial Bar Council and the mechanism to remove and fill the post of a Member, Punjab Bar Council. 4. This case was initially put up before one of us (Syed Mansoor Ali Shah, J) as Single Bench, however, considering that the issue concerned the functioning of the Provincial Bar Council, the apex professional self-regulation authority and realizing the constitutional and legal gravity of the questions involved, request was made to the Hon'ble Chief Justice to constitute a full bench to hear the matter. This request was graciously acceded to. Factual Background 5. The factual backdrop to the present litigation is necessary to appreciate the legal questions that have finally surfaced in this case: (i) One Sajjad Akber Abbasi, Advocate preferred a petitionbefore this Court, challenging the appointment of Zafar Mehmood Mughal, Advocate, Member Punjab Bar Council, on the ground that he was subsequently appointed to an office of profit in the service of Pakistan as Deputy Attorney General, hence he has ceased to be a Member under Section 5C (a) of the Act and therefore liable to be removed (de-notified). It was also prayed by Mr. Abbasi that he being a runner up in the General Election, from the same district, was entitled to be notified as Member of the Punjab Bar Council in terms of section 16(b) of the Act. The said writ petition was allowed vide order dated 4- 11-2013 with the direction to the Punjab Bar Council to notify Sajjad Akbar Abbasi in place of Zafar Mehmood Mughal . (ii) This decision was challenged before a Division Bench of this Court in appeal,2 which was dismissed vide order dated 2-12-2013 on a technical ground. It was held that the appeal was not maintainable as the decision of the Chairman was challengeable in appeal before the Pakistan Bar Council under section 13(2) of the Act. (iii) Finally the matter ended up before the august Supreme Court of Pakistan. The apex Court upheld the view of the learned single bench of this Court and dismissed the petition vide order dated 16-1-2014.3 (iv) Thereafter, Sajjad Akbar Abbasi was notified on 19-12-2013 by the Additional Advocate General holding a 'look aftercharge of the office of Advocate General for Punjab. (v) The said notification was challenged by the other side before the Appellate Committee of the Pakistan Bar Council, which was suspended vide order dated 28-12-2013. (vi) The order of the Appellate Committee of the Pakistan Bar Council was once again challenged before this Court and vide {{FOOT NOTE}} W.P.No,3062 of 2012. 2 ICA No,112 of 2013. 3 Passed in C.Ps. Nos. 1976 and 1977 of 2013. {{FOOT NOTE}}
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order dated 27-1-2010 the order of the Pakistan Bar Council was set aside upholding the notification of appointment in favour of Mr. Abbasi . (vii) The question that once a sitting Member of the Provincial Bar Council is appointed to an office of profit in the service of Pakistan, he ceases to be a Member of the Bar Council, was finally settled in the above litigation. (viii) In the light of the aforesaid decision, the petitioners submitted applications before the Chairman, Punjab Bar Council for de-notification of the private respondents, who were appointed to an office of profit in the service of Pakistan. As the matter kept pending before the Additional Advocate General holding a 'look aftercharge of the office of the Advocate General, the petitioners approached this Court through W.P. No,10989/2014, which was subsequently placed before a Full Bench of this Court and disposed of vide order dated 15-5-2014 with the direction to the Chairman to decide the matter within a period of three days. (ix) Thereafter, the purported Chairman passed order dated 24-5-2014 followed by notifications dated 30-5-2014 de-notifying the private respondents and notifying the petitioners as Members of the Punjab Bar Council. (x) The order of the purported Chairman, Punjab Bar Council and the appointment notifications were challenged before the Appellate Committee of the Pakistan Bar Council under section 13(2) of the Act and vide impugned order dated 6-6-2014, the order of the Chairman, as well as, the appointment notifications were suspended by the Pakistan Bar Council. This order has been impugned before us unfolding a number of constitutional and legal questions as discussed above. The petitioners have also prayed that the sanctity of the appointment notifications be safeguarded by this Court. 6. The foundational questions that arise in this case and require our anxious consideration are: a. How is section 5C of the Act, pertaining to cessation of membership, actualized under the Act and the relevant Rules? More precisely, how is a elected Member removed from office and how is the corresponding casual vacancy filled under the law? {{FOOT NOTE}} In W.P.No,5 of 2014. {{FOOT NOTE}} b. What is the role of the Advocate General under the scheme of the Act and the Rules and does the vacancy in the office of the Advocate General have an effect on the working of the Provincial Bar Council and, in particular, while giving effect to Section 5C of the Act? Arguments 7. The countervailing arguments addressed before us by the learned counsel for the parties are as under. Learned Counsel for the petitioners submitted: a. That the appeal before the Appellate Bench of the Pakistan Bar Council was not maintainable against the Order of the Additional Advocate General, as it does not constitute a decision of the Provincial Bar Council, which alone is appealable under section 13(2) of the Act. Reliance is placed on "Mushtaq Hussain Shah v. Sindh Bar Council and others" (2003 YLR 1520). b. The notification appointing the petitioners as members is valid as the same has been issued by the Returning Officer i,e,, the Additional Advocate General. It is contended that the office of the Returning Officer is a permanent office under the Act and as the issue of filling the casual vacancy pertains to elections, the Returning Officer has, therefore, rightly issued the appointment notification. They relied on the definition of the Returning Officer under Rule 3(i) of the relevant Rules. c. That on the basis of the decision of the august Supreme Court of Pakistan in Sajjad Akbar Abbasi case, the issuance of appointment notification of the runner up in the General Elections of the Provincial Bar Council was automatic. As a consequence the issuance of the notification was a
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secretarial act that did not require further deliberation and could not be withheld by the Returning Officer. d. Relying on the decision of the august Supreme Court of Pakistan and the subsequent decisions of this Court discussed above, it was argued that the Additional Advocate General was under a direction to issue the appointment notification. e. That the acting Chairman can appoint the runner up as a Member of the Bar Council. Reliance is placed on "Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others" (PLD 1969 SC 42). 8. On the other hand, learned Counsel for the private respondents argued: . That the Additional Advocate General did not pass for a Chairman under the Act and therefore, could not remove an elected Member, hence the removal de-notification and the consequent appointment notification are without lawful authority. The respondents were appointed to an office of profit but they subsequently resigned from the said office hence, removal notification could not be issued when they were not holding an office of profit in service of Pakistan. Basing the argument on the analogy of a writ of quo warranto, which cannot be issued if the incumbent is not holding the office at the time. Reliance is placed on Sardar Asseff Ahmad All v. Muhammad Khan Junejo and others (PLD 1986 Lahore 310). And "Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore" (PLD 1970 SC 98). He submitted that subsequent events must be considered by the Court. Reliance is placed on "Ch. Riyasat All Advocate. v. Returning Officer and 2 others" (2003 CLC 1730). h. That in the light of the fact that the respondents are not holding an office of profit in the service of Pakistan anymore, this petition therefore does not agitate a live issue and hence is not maintainable. Reliance is placed on "Munawar lqbal Gondal v. Mrs. Nasira lqbal and others" (2014 SCMR 860). i . That the appeal before the Appellate Bench of the Pakistan Bar Council was maintainable as ICA No,112/2013 was dismissed on the assumption that the order of the Additional Advocate General was appealable under section 13(2) of the Act. Reliance is placed on "Tariq Mehmood A. Khan and others v. Sindh Bar Council and another" (2012 SCMR 702) and the unreported orders passed in ICA 370/2014 and ICA 112/2013. 9. Learned Counsel appearing on behalf of the Pakistan Bar Council submitted: j . That the process of actualizing Section 5C has not been provided under the law. He submitted that when Section 5C (a) is read with section 16(b), the only process available under the law is that of filling the causal vacancy under Rule 28-A of the Rules, ., 1976. k. That Rule 28-A of the Rules, 1976 read with sections 5C and 16(b) of the Act must be purposively interpreted to provide the same mechanism for removal as provided for filling the casual vacancy. Rule 28-A of the Rules, 1976 provides that causal vacancy is filled through the decision of the Bar Council through a majority vote and only notified by the Chairman. 1. That the role of the Chairman in the functioning of the Bar Council is pivotal. However, in the absence of the Chairman, the functions are performed by the Vice-Chairman and the Act does not become dysfunctional. Reliance was placed on Rule 84 of the Rules 1976. It is also pointed out that the post of Additional Advocate General is not the same as that of the Advocate General and placed reliance on "Muhammad Khursheed Khan v. Returning Officer and 4 others" (1998 SCMR 425). m. He submitted that while the appeal against the order of the Additional Advocate General was not maintainable, the impugned order was passed by the Pakistan Bar Council under its supervisory power provided under section 13(1)(t) and (i) of the Act. n. Referring to section 3 of the Act, he submitted that the Provincial Bar Council is a body corporate and enjoys a perpetual succession. In response to a court query he submitted that vacancy of the
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seat of the Chairman will, therefore, not amount to dissolution of the Provincial Bar Council. 10. Learned Law Officer representing the office of the Advocate General/Chairman submitted that Order dated 24-5-2014 followed by Notifications dated 30-5-2014 is valid and the Chairman had the lawful authority to pass/issue the same. Opinion of the Court 11. We have heard the learned counsel for the parties over the last six days. There is no cavil with the legal proposition between the parties that once a Member is appointed to an office of profit in the service of Pakistan, he ceases to be a Member of the Bar Council in terms of Section 5C (a) of the Act. The question that requires determination is to identify in whom vests the power, under the A ct, to actualize cessation of membership of an elected Member of the Bar Council and the mode and manner required to operationalize the same, leading to the 'de-notificationof an elected Member. Correspondingly, similar question arises in the case of filling of the casual vacancy resulting in an appointment 'notification.In the present case, the above questions have to be resolved in the peculiar backdrop of the vacancy of the seat of the Advocate General for Punjab, the ex-officio Chairman of the Bar Council. In order to address the above questions, it is important to understand the scheme of the Act. Composition and constitution of the Provincial Bar Council 12. The Punjab Bar Council, in addition to the Act, is inter alia, regulated by the Pakistan Legal Practitioners and Bar Councils Rules, 1976 ("Rules, 1976") and Punjab Legal Practitioners and Bar Councils Rules, 1974. ("Rules, 1974"). Punjab Bar Council is a body corporate and enjoys perpetual succession. The Council has the power to acquire and hold property and to sue and be sued in the name by which it is known [section 3(2)]. The constitutive structure of the Provincial Bar Council consists of a Chairman, who is the Advocate-General of the Province, ex-officio and such number of Members as may be elected by the advocates from amongst themselves. In the case of Punjab Bar Council, the total number of Members is 75 [section 5(a) & (b)]. The term of Bar Council is five years beginning on the first day of January following the General Elections. At the end of the each term, the members of the Bar Council cease to hold office provided the Bar Council continues to function till a new Bar Council is elected [section 4]. For the purposes of election of Members of a Provincial Bar Council from a district or districts the advocates entered on the roll of group of districts as mentioned in the Schedule, constitute the Electoral College [section 5(2-A)]. 13. The Act reiterates that the Provincial Bar Council comprises of a Chairman and Vice-Chairman and the Advocate General of the Province is the Chairman of the Provincial Bar Council for that Province [section 6(2)] . The Members of that Council from amongst themselves elect the Vice Chairman of Provincial Bar Council. The election of the Vice Chairman is held every year and not later than the thirty-first day of January every year. The Vice Chairman ceases to hold his office if he is appointed to an office of profit in the service of Pakistan or is suspended or removed from practice under the Act [section 6(7)] . In such an eventuality the office of a Vice-Chairman becomes vacant and can only be filled through an election held within thirty days of the office becoming vacant [section 6(8)]. This is also referred to as the in-house election of the Bar Council. General Election of the Provincial Bar Council is held so as to conclude on or before the thirtieth day of November in the year in which the term of the Provincial Bar Council expires [section 7]. Functions of the Provincial Bar Council 14. The functions of the Provincial Bar Council consist of admitting advocates to its roll; preparing and maintaining a roll of advocates; removing advocates from such roll. To admit advocates entitled to practice before the High Court and to prepare and maintain a roll of such advocates; to entertain and determine the cases of misconduct against advocates on its rolls and to order punishment in such cases; to safeguard the rights, privileges and interests of advocates on its rolls including initiation of measures for fair and
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inexpensive dispensation of justice by subordinate courts and tribunals; to promote and suggest law reforms; to conduct election of its members; to recognize and derecognize bar associations [section 9]. Committees of the Provincial Bar Council 15. The Provincial Bar Council enjoys the powers to constitute Committees under the law and shall constitute the following Standing Committees: Executive Committee, Disciplinary Committee, and the Enrollment Committee. Other Committees of the Bar Council are mentioned in Rule 4.2 of Rules, 1974. Every Committee constituted under the Act shall present to the Bar Council before the end of every quarter a report of its working for approval [Rule 4.9 of Rules, 1974]. Similarly, in the case of the Pakistan Bar Council, the minutes, proceedings, decisions and resolutions adopted by the Committee are laid before Pakistan Bar Council in its next meeting for approval. The said Committees shall have their own chairman and all the members on these Committees are duly elected from amongst the Members of the Bar Council [section 10]. Elections to the Provincial Bar Council 16. Rules, 1976 provide that elections to the Provincial Bar Council are to be conducted by the Returning Officer, who is the Advocate General of that Province or in his absence the Additional Advocate General in order of seniority and where there is no Additional Advocate General, an Assistant Advocate General in order of seniority [Rule 2(i) of Rules, 1976]. On a date specified by the Returning Officer, an advocate qualified as a voter may by a letter addressed to the Returning Officer propose an Advocate qualified as a candidate for election as a Member of the Provincial Bar Council from that District by delivering at the office of the Returning Officer nomination papers signed by him and accompanied by a statement by the Advocate whose name is proposed that he is willing to serve as Member, if elected. Any such proposal shall relate only to one candidate and shall be invalid if it relates to more than one. On the date fixed for scrutiny, the Returning Officer shall after hearing objections to the proposals and after making such summary inquiry as he thinks fit accept or reject the proposal [Rules 6 and 8 of Rules, 1976]. The Returning Officer is to prepare a report of the votes received by each candidate and the votes held to be invalid and is to declare the result [Rule 26 of Rules, 1976]. A list of candidates declared elected is prepared and signed by the Returning Officer and published in the official gazette of the Province. The list is also sent to the'Presidents of all the Bar Associations to be affixed on their notice boards [Rule 28 of Rules, 1976]. For the purposes of the election of the Vice Chairman of a Provincial Bar Council, the Advocate General alone is to act as a Returning Officer [Rule 69 of Rules, 1976]. Meetings and Decisions of the Provincial Bar Council 17. The Chairman of the Provincial Bar Council shall convene and preside over meetings of the Bar Council [Rule 84(b) of the Rules, 1976]. In the absence of the Chairman, the Vice Chairman shall exercise the powers and the duties of a Chairman [Rule 85(a) of Rules, 1976] . Ordinary meetings of the Bar Council are convened by the Chairman and "in case he is for some reason unable to act" [Rules 2.2 and 2.6 of the Rules, 1974] or the Chairman is 'incapable of actingby the Vice Chairman [Rule 3.2 of Rules, 1974] . Any meeting requisitioned by the Members shall also be convened by the Chairman and in the absence of the Chairman, the Vice Chairman [Rule 2.3 of Rules, 1974]. Quorum of the meeting of the Bar Council is one-third of the total Members of the Bar Council, provided where the meeting of the Bar Council cannot be held for want of quorum it stands adjourned to the next day when the quorum of the adjourned meeting is one-fourth of the total number of the Members [Rule 2.5 of Rules, 1974]. Decisions at any meeting shall be by a majority of vote and voting shall be by show of hands. In the case of equality of votes, the Chairman of the meeting shall be entitled to cast a second vote [Rule 2.8 of the Rules, 1974]. 18. The Act sets up a professional self-regulating authority of advocates i,e, the Bar Council which volunteers to monitor its own adherence to legal, ethical and professional standards. Self-
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regulation or self-policing fills the vacuum of the absence of government oversight and regulation. The objective of professional self-regulation has been discussed as under: "When it comes to regulating transactions between the public and professionals, governments are expected to make sure that the public has some form of protection. For instance, government rules help to ensure that our legal system is fair, teachers are knowledgeable, accountants behave in an ethical manner, and physicians are competent. Examples of government regulation range from rules requiring informed consent when a member of the public has a medical procedure performed, to rules about insider trading for buying and selling stocks. Overall, it is believed that such rules create a fairer system. One of the most common approaches used by government to regulate the practice of professionals is through a system of professional self-regulation....It is expected that all of a regulatory body's decisions and activities will be done in the "public interest." In other words, the primary purpose behind all regulatory body decisions is to protect the public from incompetent or unethical practitioners .... Another common method of holding a regulatory body accountable to the public is through the appointment of members of the public to its governing Board.' 19. Under the umbrella of self-regulation and self-policing, the Bar Council prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the Bar. It regulates the admission of advocates on its roll, looks into professional misconduct and awards punishment, safeguards the rights, privileges and interests of advocates, suggest law reforms and recognize and regulate functioning of Bar Associations. 20. Within the Bar Council, the highest elected office is that of the Vice-Chairman, who is elected from amongst the Members. The Members are also elected from amongst the advocates, whose names are entered on the provincial and district rolls. The democratically elected Bar Council has an assembly of 75 Members (advocates). Advocates by training are fashioned to stand up for constitutional democracy and fundamental rights. They, therefore, by character are politically active and espouse diverse and independent political views, therefore the body of voters (advocates) belong to different political groups. The elected Vice-Chairman also invariably belongs to any one of such groups. The hallmark of a professional self-regulating body is its neutrality and impartiality, so that its policies and decisions reflect level playing field for all its Members. It is for this reason that in the thicket of such charged diversity i,e,, Members of the Bar Council, an impartial umpire i,e,, the Chairman, has…
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