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Official Citation: 2019 SCMR 389
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2018
Decision Date: 2018-12-31
Parties: PAKISTAN BAR COUNCIL through Chairman and others vs FEDERAL JUDGMENT
This judicial decision was delivered by the Supreme Court of Pakistan on 2018-12-31. The matter involves proceedings between PAKISTAN BAR COUNCIL through Chairman and others and FEDERAL JUDGMENT, officially reported as 2019 SCMR 389. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2019 SCMR 389
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mian Saqib Nisar, Umar Ata Bandial Title:PAKISTAN BAR COUNCIL through Chairman and others vs FEDERAL
JUDGMENT
Reported As: 2019 SCMR 389 Result: Order accordingly Judgment JUDGMENT UMAR ATA BANDIAL, J.---This petition is filed by the Pakistan. Bar Council ("PBC") under Article 184(3) of the Constitution of Islamic Republic of Pakistan ("Constitution"). It seeks to enforce the judgment of this Court rendered in Pakistan Bar Council v. The Federal Government and others (PLD 2007 SC 394) ("PBC judgment") wherein the Court considered the matter of declining standards of legal education and the mushroom growth of substandard law colleges in the country. In the PBC judgment, the Court directed all law schools and colleges to comply with the "Affiliation of Law Colleges Rules" ("Affiliation Rules") framed by the PBC in order to ensure uniform quality of legal education. The Court further directed that any rules framed by the PBC shall be read into the rules framed by any university and in case of conflict, the former shall prevail. A five- member commission was formed in order to examine existing courses of law prescribed by universities for obtaining the LL.B. degree and to propose other suitable steps in the light of the observations made by the Court. Through the present petition the PBC has claimed that none of the Respondent law colleges and universities have complied with the directions given in the PBC judgment and have instead granted affiliation certificates to private law colleges in violation of the Affiliation Rules that lay down, inter alia, the standards of legal education, criteria for disaffiliation,
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necessary infrastructural resource facilities, maintenance and attendance record and minimum number of lectures required of law colleges. 2. It is to be noted that the PBC judgment was not being implemented. This came to the notice of the Court via an article published in Dawn on 27.06.2010 pursuant to which implementation proceedings were initiated in the same year. These proceedings continued sluggishly but came to be actively pursued in 2017 whereby, in the light of the submissions made by the learned counsel for the petitioners, this Court vide order dated 21.01.2018 constituted a Special Committee for Structural Reforms in Legal Education. This Special Committee consisted of Mr. Hamid Khan, Sr. ASC, Dr. A. Khalid Ranjha, Member, PBC, Mr. Azam Nazeer Tarar, Chairman, Legal Education Committee, PBC, Mr. Justice (R) Khilji Arif Hussain, Mr. Anwar Kamal, Prof. Ahmed Ali, Mr. Justice (R) Amanullah Yasinzai, Mr. Mian Zafar Iqbal Kalanauri, Former Member, Punjab Bar Council, Dr. Ali Qizalbash, Advocate, Mr. Qazi Khalid Ali, Vice-Chancellor, Shaheed Zulfiqar Ali Bhutto University of Law, Karachi, Dr. Sohail Shahzad, Principal, Law College, University of Peshawar, Mr. Gul Muhammad Kakar, Principal, Law College, University of Balochistan, Mr. Amjad Hussain, Chairman, Law Department, Islamia University Bahawalpur, Mr. Muhammad Arshed, Secretary PBC, Mr. Wasim S. Hashmi Syed, Advisor, Human Resource Development Division and Mr. Muhammad Raza Chohan, Director General, Academics Division, Higher Education Commission. In addition to the Special Committee, four Provincial Commissions and one for Islamabad Capital Territory ("ICT") were also formed by this Court. These were headed by Mr. Justice (R) Khilji Arif Hussain (Sindh), Mr. Anwar Kamal (Punjab), Prof. Ahmed Ali (Khyber Pakhtunkhwa) Mr. Justice (R) Amanullah Yasinzai (Baluchistan) and Mr. Justice (R) Sardar Muhammad Aslam (ICT) respectively. The Provincial Commissions also consisted of nominees of the PBC, concerned Provincial Bar Councils, Higher Education Commission of Pakistan, Higher Education Departments of concerned Provinces and the Advocate Generals of concerned Provinces. For the ICT Commission, Mr. Muhammad Shoaib Shaheen, Member, Pakistan Bar Council, Mr. Fiaz Ahmed Anjum Jandran, Vice-Chairman, Islamabad Bar Council and Dr. Muhammad Idrees, Director .Academic, Higher Education Commission were appointed as members. 3. The work of the Special Committee involved deliberations on the matter in issue from the following perspectives: (i) Eligibility for entry into law colleges (ii) Preparation of uniform Syllabi of LL.B. courses and their duration (iii) Permanent and visiting faculties at Law Colleges (iv) Assessm ent/ evaluation of examination and (v) Eligibility of entry to the Bar. The Special Committee and all five Commissions thereafter inspected affiliated law colleges that had mushroomed in the market and to report on the standard of legal education, training and services imparted by them. Based on the findings of these inspections, the Special Committee of the PBC submitted its report to the Court containing recommendations for advancing the object of uplifting the standard of legal education in the country. These recommendations variously impacted several law colleges that failed to comply with the minimum standards and criteria prescribed by the Affiliation Rules or specified by the regulations of the chartered universities. Accordingly, with the assistance of learned counsel representing the PBC, Provincial Bar Councils, concerned universities and law colleges, the Court during its proceedings held at the Branch Registry at Lahore on 20.08.2018 and 24.08.2018 and at the Principal Seat on 28.08.2018 examined, deliberated and considered the recommendations given by the Special Committee. The Court by a short order dated 31.08.2018 disposed of Constitution Petition No, 134 of 2012 and Civil Misc. Application No,1864 of 2010 in Constitution Petition No,9 of 2005 and issued directions reproduced at the end of this judgment. Analysis: 4. The Rule of Law is a fundamental principle of any democratic society and in our legal system, it is the bedrock of the Constitution. The Judicature is entrusted with the constitutional duty to enforce
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the Rule of Law and to safeguard the Constitution. The Courts in our country resolve disputes in accordance with the Constitution and the substantive and procedural laws framed thereunder. The system on the whole flourishes by positive and productive cooperation between the Bar and the Bench for ascertainment of the truth and decision of controversies according to the relevant and applicable law. An independent, competent, honest and industrious Judicature requires an equally independent, dynamic, honest and dedicated Bar in order to effectively provide justice in accordance with law to all members of the society. 5. The legal profession across the world is actively evolving. There is an ever-increasing demand for diverse legal services ranging from consultative work to dispute resolution by contractual or regulatory fora to litigation in Courts. Consequently there is a growing need for law degree awarding institutions offering education that possess corresponding breadth and quality. The phenomenon of globalisation has further contributed to this demand, thereby leading to a greater involvement of law in both the national and international spheres. Legal education in this respect plays a crucial role in strengthening the Rule of Law, social stability, governance and economic development. Law schools across the world are striving to attain higher standards of legal education for meeting the complexity of legal relations and problems that arise in the increasingly integrated global society and market. However, the case in Pakistan is different. There has been a major decline in the standard of legal education owing to various reasons, explained cogently in the PBC judgment (at pp.399-400): 13. "...Every year thousands of law graduates are getting added to the Bar. Some are products of colleges, having a certain credibility of imparting quality education whereas many come from colleges where the standard is below average. The products of the latter kind neither have the requisite knowledge of law nor any commitment to professional ethics. The apprenticeship training, prescribed under the Bar Council Rules is taken as a formality. The good old tradition of a senior training the junior in court room skills and ethics has given way to a new culture, where a young entrant is on his own sooner than is appropriate i,e, before he has legal skills or is fully equipped to properly advice the client and assist the Court..." 6. One of the principal causes of decline in the standard of legal education is due to proliferation of substandard law degree awarding institutions that are motivated solely by commercial considerations rather than academic excellence. This shift in priorities has inevitably compromised the quality of education and hampered the intellectual development of law students. Insofar as the stage of apprenticeship in the legal profession is concerned, that also requires reform. New entrants into the profession require guidance from the expertise, skill and experience of senior members of the Bar to imbibe legal skills and professional ethics. However more often than not, entrants are left to their own devices due to a dearth of advocates who are available to train juniors or simply for their lack of time and interest to act as seniors. The omission of this crucial training period therefore, adversely affects the professional development of qualified new entrants. 7. Apart from law degree awarding institutions, the Bar as an institution also plays an important role in improving the quality of legal education. Provision of good quality legal education is inextricably linked with dispensation of justice that the Bar is responsible for ensuring. Some of its primary responsibilities include: regulating the legal profession, shaping legal reform, ensuring fair access to justice, protecting the Rule of Law and upholding the independence and the ethical standards of the legal profession and nurturing legal education by mentoring. Therefore in this stimulative capacity, the Bar must make a conscientious effort to standardise law degree awarding institutions. In this regard the PBC judgment observes that: 11. "...The quality of the Bar and assistance it renders to the Courts to a great extent depends on legal education. The Bar in general and the Pakistan Bar Council in particular therefore have awesome responsibility to improve the quality of legal education because it is the possession of a
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degree of law which is a sufficient academic qualification for entering the Bar." (at p.398) 8. For the past 45 years, the Legal Practitioners and Bar Councils Act, 1973 ("Act") has regulated the standards of proficiency for entry to the Bar in Pakistan. The PBC established under the Act and the Higher Education Commission of Pakistan ("HECP") established under the Higher Education Commission Ordinance, 2002 are the key regulators to supervise and enforce professional standards in legal education. In pursuance to the views expressed in the PBC judgment and based upon its own deliberations, the PBC reviewed the Pakistan Bar Council Legal Education Rules of 1978 and re-enacted these as the Legal Education Rules of 2015 ("Rules"). These Rules lay down detailed provisions on several matters concerning legal education, in particular, criteria for recognition of degree awarding institutions and for affiliation of law colleges thereto. The Rules were proposed, finalised and notified during the proceedings for the implementation of the PBC judgment. 9. The Rules have an overriding effect (reference is made to Rule 2) and lay down, inter alia, the eligibility criteria for admission to the LL.B. programme, duration of the programme, inspection of law faculties and departments of law colleges for establishing or renewing their qualifying status as affiliates of recognized degree awarding university. Rule 17 stipulates that "no University/Degree Awarding Institution shall commence a law programme and admit students unless it is recognized by the Pakistan Bar Council..." and Rule 34 requires "the College shall ensure quality legal education according to the standard laid down by the Pakistan Bar Council as per its Rules. The directions issued by the Pakistan Bar Council, the Higher Education Commission and/or the University/Institution from time to time in this behalf, shall be complied with and followed by the law college." Equally, the failure to comply with the Rules entails disaffiliation of the law colleges that are found lacking. Therefore, the PBC is obliged to collaborate with the HECP to monitor and ensure that law colleges adopt a stringent admission criterion for the LL.B. programme and an even more rigorous standard for entrance into the LL.M. and Ph.D. programmes in pursuance to Rule 13 which lays down the requirement of prior approval from the PBC and HECP for its postgraduate programmes. For the LL.M. programme, the same Rule stipulates the requirement of a two-year programme and a limit of 20 students in a class offered by law degree awarding institutions. Both bodies are therefore entrusted with the momentous responsibility of carrying out continuous monitoring and scrutiny of law colleges and authorizing only those that impart good quality education. Furthermore, cooperation between the Bar Councils, HECP and law colleges also has far reaching effects in terms of development in the law. Therefore law degree awarding institutions must comply with the guidelines and rules framed by the Bar Councils from time to time. 10. A well-structured curriculum also fosters quality education with enduring results. The law degree curriculum should effectively impart academic knowledge and hone skills of argument, legal analysis and linguistic communication. Examples in this regard can be taken from leading law schools in the world that offer multifaceted curricula inclusive of clinical legal education, mooting, mock trials, client interviewing, negotiation and mediation to provide students with an insight into the practical requirements of law practice. The need for legal education to be multidisciplinary is expressed in the PBC judgment in the following words: 14. "Legal education should not only cater for those students who study to pursue law as a career but should also provide instructional and research facilities to those who aim at becoming researchers, academicians or critics in the domain of law. The discipline of law encompasses almost every dimension of social life. Before students join a professional law course, they need to have a multidisciplinary academic base..." (at p. 400) 11. One of the essential canons of professional conduct is the codification of legal ethics in order to inculcate ethical standards and social responsibilities in legal practitioners. This is greatly emphasized upon in other jurisdictions such as the UK where Professional Ethics is a compulsory
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module taught in the Bar Professional Training Course. Incorporating legal ethics in law curricula is vital for making students aware of the ethics, professional responsibilities, fiduciary obligations and discipline expected of them as future legal practitioners. Another important skill for the practice of law as stipulated in Rule 9 is proficiency in the English language. Law colleges must strive that English as a medium of instruction of legal subjects is adopted so that students are adequately proficient before they graduate. It is also particularly beneficial that, apart from substantive and procedural law, law colleges include social sciences such as sociology, economics and political science in their curricula to inform students about growing number of specialised fields in the legal profession. 12. In the foregoing perspective, it is advantageous that a five year LL.B. programme is introduced in law colleges that are not already offering it. This would provide the time and exposure to ensure a complete and comprehensive legal education where students can adequately learn and acquire the knowledge, skills, values and practical judgment required for the legal profession. In this regard the HECP has recommended a Standardized Curriculum Format for LL.B (5 years) degree programme which provides guidelines for the regulators, PBC and HECP, and the law degree awarding institutions. This is attached as Annexure--I to this judgment for illustrative purposes and subject to enforcement to the extent directed by the regulators. 13. For faithfully discharging their duty under the Rules, the law degree awarding institutions also have a crucial responsibility of ensuring availability of adequate resources, infrastructure and a faculty that is well equipped to provide quality education. To maintain a good standard K of education, it is necessary that instructors possess the relevant academic qualifications, experience and a high degree of competence. In this regard, a faculty comprising of practising lawyers and retired judges is generally well placed to provide students with a realistic view of the practice of law. Faculty members should also assist in administrating the admission procedure and policies, curriculum, methods of teaching and examination to maintain high academic standards as well as closely supervise each student's academic performance to ensure the best possible results. Equally, it is imperative that institutions set clear educational objectives or learning outcomes for students to effectively meet both educational and professional requirements. Law degree awarding institutions must therefore devote adequate resources to a law library, co-curricular activities such as mooting and student support services academic and career advice. As regards infrastructural requirements stipulated in Rule 25 under the Affiliation Rules, law colleges must have at least ten classrooms, a common room, adequate toilets, cafeteria, first aid facilities and so forth. During inspection of one of the colleges, it appeared that libraries in 13 out of 32 colleges were either locked or had insufficient resources while only 3 amongst 32 colleges maintained an attendance record of its students even though Rule 28 mandates law colleges to maintain as well as display an attendance record. It is clear that without a competent faculty or sufficient resources, students with the necessary skills for working in a challenging and expanding legal environment cannot be produced. Due consideration must also be given by provincial and federal governments to allocate sufficient resources for the improvement of legal education. The State has a duty to promote the fundamental right of access to justice. In the course of time, the quality of legal education reflects upon the professional capabilities available in the Bar. These capabilities are extremely important both for assuring competent legal advice to the disputant parties in a controversy and also for competent legal assistance being provided to Courts and other dispute resolution fora. Prompt and good judgments and determinations improve governance, foster economic activity, progress and peace in society. This entire cycle of empowering persons and institutions realizes the constitutional goal of strengthening the Rule of Law in the society. 14. Once young professionals are admitted to the Bar, it is necessary that they continue to evolve, learn and improve their skills and knowledge to maintain consistency with a progressing legal
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environment. As a matter of fact, some foreign jurisdictions require mandatory minimum continuing legal education (CLE) or continuing professional development (CPD) for lawyers and attorneys to undertake after they are admitted to the Bar. This mandatory continuing education requirement ensures that lawyers keep abreast with the developments in law and jurisprudence, maintain professional ethical standards and enhance the quality and calibre of their practice of law: As held by the Supreme Court of Canada in Sidney Green v. the Law Society of Manitoba (2017 SCC 20) at page 1: "A lawyer's professional education is a lifelong process. Legislation is amended, the common law evolves, and practice standards change as a result of technological advances -and other developments. Lawyers must be vigilant in order to update their knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and professional standards in their practices." In a similar manner the Institute of Chartered Accountants of Pakistan (IC A P) has put in place Quality Control Review (QCR) framework for mandatory quality assurance and compliance of professional standards amongst practitioners and firms engaged in audit. It is therefore imperative that such a system is also devised in the legal profession where practicing lawyers are continuously tested to ensure that they have the requisite knowledge of the law and amendments or developments thereof. Academic qualifications alone do not suffice and to maintain quality at the Bar, legal education must be treated as a continuous process and promoted as a priority. In this regard, senior members of the Bar have a duty to contribute to the learning and grooming of entrants during the mandatory apprenticeship period by imparting their knowledge and expertise of different areas of practice. 15. In the foregoing perspective and vision for the legal profession and in light of the recommendations submitted by the Special Committee, this Court vide its short order dated 31.08.2018 (as amended on 13.12.2018) was pleased to formulate the following directions in the matter of legal education. These directions are reproduced below: "Court's declarations and directions: 1. Restoration of Bar Entrance Examination [Law Graduate Assessment Test (LAW-GAT)]. A Law Graduate Assessm ent Test (LAW-GAT) of law graduates seeking enrolment to the Bar shall be held on quarterly basis by HECP as the executing institution throughout Pakistan based on a question bank prepared for the Assessment Test. 2. Test for Entry to Law College (Law Admission Test) (LAT). A law admission test for all law colleges in Pakistan shall be held biannually by the HECP. The outline of such a law admission test is given below: "LAW ADMISSION TEST (LAT) Division of Questions MarksNature of Questions Essay (either in English or Urdu) 15 200 words maximum Personal Statement (either in English or Urdu)10 200 words maximum MCQs: MCQs: English 20 Synonyms/Antonyms/ Prepositions MCQs: General Knowledge 20 MCQs: Islamic Studies 10 MCQs: Pak Studies 10 MCQs: Urdu 10 Vocabulary MCQs: Math 05 Basic Math
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Total Marks 100 3. Specification of Affiliating Universities and their territorial jurisdiction. The following universities are recognized and authorised by the PBC under the Rules to be law degree awarding institutions. The territorial jurisdiction of each such university is indicated against its name: Sr. No.Affiliating University Area of Jurisdiction 1. University of BalochistanWhole of the Province
2. University of Peshawar Districts and Civil Divisions of Peshawar, Malakand and Mardan. 3. Gomal University, D.I.K Districts and Civil Divisions of D.I.Khan, Bannu and Kohat. 4. University of Hazara, MansehraAll the District of Hazara Division. 5. University of the Punjab, LahoreDistricts and Civil Divisions of Lahore, Gujranwala, Sargodha, Faisalabad, Sahiwal and Rawalpindi. 6. Bahauddin Zakariya University, MultanDistrict and Civil Divisions of Multan and Dera Ghazi Khan. 7. Islamia University, BahawalpurAll Districts of Bahawalpur Division. 8. Karachi University All Districts and Civil Division of Karachi. 9. University of Sindh, HyderabadAll Districts and Civil Divisions of Hyderabad, Mirpur Khas and Shaheed Benazirabad. 10. Shah Abdul Latif University, KhairpurDistricts and Civil Divisions of Sukkur and Larkana. 11. Quaid-e-Azam University, Islamabad.Islamabad Capital Territory. 4. Ban against conducting LL.M. and Ph.D. in law classes by the Universities/ Colleges / institutions that are not allowed to hold LL.B. classes. The universities and institutions that are not recognized and authorised by the PBC to confer LL.B. degree shall not impart legal education to students at LL.M. and Ph.D. levels or to admit students to either of such programmes. The same rule applies to law colleges affiliated to such universities and institutions. 5. Limit on admission to LL.M. and Ph.D. programmes in law and ban on mushroom admissions to these programmes as per criteria of HECP. Admission to LL.M. and Ph.D. programmes by an authorise law college/university/institution shall be granted on the criteria laid down by HECP, including, the ceiling on the number of students fixed for admission to such programmes. 6. Designing of Curriculum for five year LL.B. Programme -annual and semester. The HECP National Curriculum Review Committee along with the representative of the PBC sub- committee has…
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