Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SHOAIB SHAHEEN and others VS Respondent: PAKISTAN BAR COUNCIL and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Umar Ata Bandial, Sh. Azmat Saeed, Faisal Arab Title:MUHAMMAD SHOAIB SHAHEEN and others vs PAKISTAN BAR COUNCIL and
JUDGMENT
Reported As: PLD 2017 Supreme Court 231 Result: Petition dismissed Judgment JUDGMENT JUDGMENT (Sd.) Sh. Azmat Saeed, JUDGE (Sd.) Umar Ata Bandial JUDGE (Sd.) Faisal Arab JUDGE ' SH. AZMAT SAEED, J.- I have had the privilege of examining the judgment of my learned brother Mr. Justice Faisal Arab dismissing the instant Civil Petition. I agree with the conclusions drawn, however, I may add my own reasons. 2. Section 15 of the Legal Practitioners and Bar Councils Act, 1973, pertains to the Committees of the Pakistan Bar Council. The said provision reads as follows: "15. Committees of the Pakistan Bar Council.-(1) The Pakistan Bar Council shall constitute the following Committees, namely:-- (a) a disciplinary Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and four other members elected by the Council from amongst its members: Provided that the Attorney-General for Pakistan shall not be a member of the disciplinary Committee;
---
## Page 2
(b) an executive Committee consisting of seven members elected by the Council from amongst its members; and (c) an enrolment Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and two other members elected by the Council from amongst its members. (2) The Pakistan Bar Council may constitute from amongst its members such other Committees, including a legal education Committee, as it may deem necessary for the performance of its functions under this Act, and may authorize any such Committee to co-opt as its members any other persons, not exceeding such number as the Council may determine. (3) The Chairman of every Committee shall be entitled to vote and, in case of equality of votes among the members of the Committee, shall have a second vote." ' A bare reading of the above-said provisions reveals that two sets of Committees are envisaged; one as mentioned in subsection (1) i,e, (a) disciplinary Committee, (b) executive Committee, and (c) enrolment Committee; and second set pertains to the Committees under subsection (2), reproduced herein above. It is obvious that the Members of the first set of Committees mentioned above are elected, while with regard to the second set of Committees referred to in subsection (2), no requirement of electing its Members is mentioned in the said provision. 3. The first set of Committees mentioned in subsection (1) exercised statutory powers as mentioned therein while the second set of Committees referred to subsection (2) exercised powers as may be delegated by the Bar Council. 4. An elected Office whether Constitutional or Statutory as a general principle of law is effective for the tenure as prescribed in the Constitution or the Statute, as the case may be. A person so elected can only be removed from Office in accordance with the provisions of the Constitution or the Statute under which he was elevated, be it by a vote of no confidence impeachment recall or otherwise. No general powers envisages in the Electors to unseat such elected officials otherwise than the procedure as provided in the Statute applicable. 5. In the instant case, the life of the Committee is determined by Rule 100, which is reproduced hereunder for ease of reference: "100. The term of every committee shall be the same as that of the Council itself unless the Bar Council when constituting the committee provides otherwise." ' The aforesaid Rule makes it clear and obvious that the life of the Committee cannot extend beyond the life of the Bar Council by electing the same. However, the Bar Council has been empowered to fix the tenure of the Committee at the time of constituting the same. In the circumstances, the minimum tenure of the Committee is not fixed by the Statute but by the Bar Council and such power is to be exercised while constituting the Committee. Such power once exercised or not exercised is not exhaustive and there is nothing to prevent the Bar Council from re- exercising of such power in terms of the principle laid down in Section 14 of the General Clauses Act, 1897. 6. The reasons adopted by my learned brother Mr. Justice Faisal Arab, would obviously hold true with regard to the Crinum constituted or rather reconstituted under Section 15(2) ibid. (Sd.) Sh. Azmat Saeed, Judge ' UMAR ATA BANDIAL, J.--The petitioners and the respondents Nos.3 to 22 are Advocates of this Court who are also elected members of the Pakistan Bar Council ("Council"). The Council performs its functions and duties through several Committees having members that are elected by the Council. Each of the petitioners is the elected Chairman of one of the Committees constituted by the Council. They challenge the judgment dated 13.10.2016 passed by a learned Division Bench of the Islamabad High Court which holds that the term of the Committees elected by the Council is
---
## Page 3
terminable by the majority vote of the Council. However, since the Council had on 03.09.2016 voted for the reconstitution of all its Committees without notice in the agenda for that meeting, therefore, the learned High Court has remanded the said matter of reconstitution of the Committees to the Council for reconsideration in a meeting of the Council properly convened for the purpose. 2. The petitioners maintain that the Legal Practitioners and Bar Councils Act, 1973 ("Act") read with Pakistan Legal Practitioners and Bar Councils Rules, 1976 ("Rules") framed pursuant to the Act envisage a term of five years for the members of the Committees constituted by vote of the majority of the Council on 25.01.2016. Consequently, the impugned judgment has seriously erred by upholding the purport of the majority of the Council on 03.09.2016 to prematurely dissolve and reconstitute all existing Committees of the Council barely eight months after they were elected. 3. The Council was first constituted in the year 1973 under the provisions of the Act. At that time the Act also envisaged four Provincial Bar Councils. Subsequently, by an amendment in the Act made in the year 2014, the Islamabad Bar Council was also added at the tier of the Provincial Councils. Under Section 4 of the Act: "The term of every Bar Council shall be five years beginning on the first day of January following the general elections to the Provincial Bar Councils and Islamabad Bar Council; at the end of each term the members of the Bar Council shall cease to hold office." (emphasis supplied). 4. The Council consists of 23 Members (section 11) who are elected on the basis of a single transferable vote by the members of the Provincial Bar Councils and the Islamabad Bar Council. The Attorney General for Pakistan is the ex-officio Chairman of the Council. The members of the Council elect a new Vice-Chairman in the month of January every year [section 12(3)]. The Vice Chairman is the executive head of the Council having functions and duties specified in Rule 85: "85. Functions and duties of a Vice-Chairman. (a) In the absence of a Chairman the Vice-Chairman shall exercise the powers and the duties of a Chairman. (b) He shall be responsible for co-ordinating the functions of all the Committees of a Bar Council. (c), He shall exercise control over the employees of a Bar Council and shall be responsible for its smooth running. (d) He shall exercise control over the functionaries of a Bar council." 5. It is evident that the Vice Chairman of the Council has a supervisory and coordinating role whilst the functions and duties of the Council, inter alia, enumerated in Section 13, are performed by several Committees having members elected by the Council (Section 15 and Rule 86). Three of such Committees have statutory force and are of a permanent character. These are the Disciplinary Committee headed by a Judge of the Supreme Court having four members elected by the Council from amongst its members; the Enrolment Committee chaired by a Judge of the Supreme Court having two members elected by the Council from amongst its members; and the Executive Committee consisting of seven members elected by the Council from amongst its members. The Council is empowered to constitute such other Committees from amongst its members, including a Legal Education Committee, as may be necessary for the performance of its functions. The Act makes fairly detailed provisions in respect of the powers and proceedings of the Disciplinary Committee whose decisions are appealable before the Supreme Court (Section 48). Likewise for the Enrolment Committee which is the final authority for enrolment of Advocates of the High Courts (Section 32). The Act also constitutes a Disciplinary Tribunal (Section 42) headed by a Judge of the Supreme Court and having two members of the Council elected for the purpose. The formation of the other Committees (presently sixteen) and disposal of matters regarding management of the Council and the conduct of its affairs are also done by the majority vote of the Council under the Rules framed by the Council in exercise of power conferred by Section 55 of the Act.
---
## Page 4
6. Section 55(f) of the Act envisages rules to be framed on the subject of "the constitution and functions of any Committee of the Pakistan Bar Council and the term of the office of the members of any such Committee." In exercise of said statutory authorization by Section 55(f) of the Act, the Council has framed Rule 100 which provides as follows: "100. The term of every Committee shall be the same as that of the Council itself unless the Bar Council when constituting the Committee provides otherwise." (emphasis added) 7. It is contended by the learned counsel for the petitioners that Section 4 of the Act provides for the term of the Council to be five years and for the members of the Council to hold their office until the end of such term. Thus, the terms of the Council and of its members are coextensive. It is argued that Rule 100 which is framed in exercise of power under Section 55(f) to fix "the term of office of the members of any such Committee" adopts the logic of Section 4 of the Act by treating the term of the Committees and their members to be coterminous, unless the Council consciously decides to shorten the members' tenure by providing otherwise. In the present case, the Council elected all its Committees on 25.01.2016 without limiting the term of office of their members in the manner envisaged by Rule 100. Accordingly, it is argued that the term of office of the members of all Committees extends until January, 2021. 8. On the other hand, learned counsel for the respondents have emphasized that Rule 100 specifies merely the term of every Committee and not the term of office of its members. All decisions of the Council are taken by majority vote recorded by show of hands (Rule 96). According to Rule 94, the majority of total members of the Council can transact any business with the permission of the Chair even if it is not listed on the agenda. The Committees are answerable to the Council under Rule 86A(i) whereby the minutes, proceedings and resolutions adopted by the Committees must regularly be laid before the Council for its approval. Rule 86A(ii) epitomizes the majoritarian principle of governance of affairs of the Council whereby the Council may of its own motion or otherwise revise or issue directions to a Committee, review any proceedings taken, order passed or any decision made by such Committee of the Council. According to Rule 86A(iii), the Council may, if so inclined, withdraw any matter or proceedings pending before a Committee and 'dispose of the same itself. In the foregoing background, it is argued that the members of the Committees are agents of the Council who have not been assured a fixed term of office. Whereas the Committees continue to function for five years, their members be removed, changed or shuffled by the Council at any time to improve performance of the functions and duties of the Committees. 9. He minutes of the meeting of the Council held on 03.09.2016 record that all twenty Committees of the Council and its Disciplinary Tribunal were reconstituted by majority vote of the Council. These include the three statutory Committees, namely, the Disciplinary Committee, Enrolment Committee and Executive Committee, envisaged in Section 15 of the Act and also the Disciplinary Tribunal constituted under Section 42 of the Act. Along with six Appeals Committees for the Provinces and the Capital Territory, composition of ten other Committees was changed. As a result eleven members of the Council who were the elected members of the existing Committees and the Tribunal were replaced by other eleven members who had previously been excluded from membership and/or participation in all such fora. The said sweeping change in the membership of all twenty Committees of the Council was made without assigning cause, fault or reason. 10. To resolve the dispute regarding the validity of the action by the Council to reconstitute all its Committees and Disciplinary Tribunal, it became necessary for us to inquire the background of the differences between the parties. It transpires that the majority of votes in the Council has shifted to the erstwhile opposition group in the Council. As a result the impugned action, members of the erstwhile opposition group have been elected as members of all the Committees of the Council thereby excluding the previous members thereof. The Council has twenty three elected members. The impugned reconstitution of the Committees and Disciplinary Tribunal of the Council was
---
## Page 5
accomplished on 03.09.2016 by a majority of twelve members of the Council by invoking the Council's power under Rule 185 to suspend Rule 100 reproduced above. Rule 185 provides as follows: "185. The Pakistan Bar Council, may by a resolution, passed by it in its meeting, suspend wholly or partly, any Rule for such period and subject to such conditions, as it may deem fit and expedient." (emphasis supplied) 11. It is a matter of fact that the Council did not specify any shorter term for its Committees at the time of their constitution. According to the express provision of Rule 100, the term of the Committees last during the term of the Council. The petitioners have objected that Rule 185 cannot be invoked for suspending a substantive provision of the Rules which confers a right upon the members of the Committees of the Council to a fixed term of office as contemplated by Section 55 (f). It is a power meant for removing difficulties, inconsistencies and procedural obstacles blocking an emergent action by the Council that is otherwise in accordance with law. 12. The respondents reject such objection for three reasons. Firstly, that nothing in the Act or the Rules bars the reconstitution of the Committees or the removal of their members. Secondly, the conduct of affairs of the Council is squarely vested in the hands of the majority in the Council which can reconsider its previous decisions, inter alia, under Rule 98; and thirdly, that any fixed term of office claimed by the petitioners under Rule 100 is revocable by the Council under its power derived from Section 21 of the General Clauses Act, 1897. Section 21 ibid recognize a competent authority to, inter alia, rescind rules, bye-laws, notifications or orders that have earlier been issued by it. For the sake of convenience, Section 21 ibid is reproduced below: 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules, or bye-laws - Where, by any Central Act or Regulations, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." 13. The arguments rendered by the learned counsel for the contesting parties have been heard and considered carefully. 14. Disregarding the personal or political differences, if any, between the members of the Council, there is a legal lacuna in the Act and the Rules that possibly represents the true origin of the dispute between the parties. Neither the Act nor the Rules make any provision for removal from office of an elected Chairman or member of a Committee of the Council by any means whatsoever. Section 11(c) of the Act merely provides for grounds for cessation of membership of the Council. These grounds include: appointment to an office of profit in the service of Pakistan; suspension or removal from practice on the ground of professional misconduct; the incurrence of disqualification on account of dismissal or removal from the service of Government or of a public corporation; conviction for an offence of moral turpitude; declaration of being a tout or an undercharged insolvent. However, both the Act and the Rules do not address the matter of cessation of membership of Committees or the Disciplinary Tribunal. The consequences of loss of confidence by the Chairmen and members of the Committees of the Council or their inefficiency, incompetence, misconduct in the performance of their duties and functions are altogether ignored. Hence, no impeachment, recall or vote of no confidence mechanism is available in the Act or the Rules for authorizing remedial action by the Council. This is notwithstanding the fact that the conduct of affairs of the Council are governed by democratic norms under the Act and the Rules. As a result of the silence of the Act and the Rules on the subject of accountability for loss of confidence, commission of default or misconduct by the Chairmen and members of the Committees of the Council, the impugned action removing existing Chairmen and members of the Committees is devoid of express legal cover under the Act and the Rules. Therefore, the respondents have resorted to justify the impugned action by suspending Rule 100 and are relying
---
## Page 6
on external aids like powers conferred by the General Clauses Act, 1897 and the democratic principle of majoritarian rule. 15. In the above background, the primary issue highlighted in the submissions made by the learned counsel .For the parties is whether the Council is rendered powerless for the claimed term of five years to touch any Chairman or member of a Committee even though he has lost confidence of the House or he has committed default or misconduct in the performance of his duties. 16. In order to address the said question, the route adopted by the respondent majority in the Council to deal with the situation through the impugned action requires examination. As a first step, the agenda dated 29.08.2016 circulated for the meeting of the Council on 03.09.2016 did not include any item regarding the reconstitution of the Committees of the Council. The additional agenda circulated on 02.09.2016 also did not include the said item. It seems, however, that later in the day on 02.09.2016 a requisition for the reconstitution of all Committees of the Council was filed by eleven members of the Council before its Chairman, learned Attorney General for Pakistan, who directed the same to be placed before the House in its meeting already scheduled for 03.09.2016. At the meeting, the House firstly proceeded to exercise its power under Rule 185 to suspend the operation of Rule 100 till the end of the meeting. No reason for suspending the said rule is recorded in the minutes. Thereafter, with the permission of the Chair the majority of the total members of the Council exercised power under Rule 94 to take up and transact business outside the agenda of the meeting. Following that the matter of wholesale reconstitution of the Committees was considered by the Council which voted in new members thereof through the impugned action. {{MISSED PAGE}} principal, the Bar Council has inherent power to decide in an appropriately convened meeting to reconstitute its Committees (which in the present case was not done). In exercise of such power, it may on its own choose to give reasons though it is not obliged by law to do so. Rule 100, therefore, cannot be used as a shield to prevent the Bar Council from exercising its power to withdraw its delegated authority from a set of Committee members and entrust it to another. 10. In view of what has been discussed above, this petition is dismissed and leave refused. Let the directions contained in paragraphs 24 and 25 of the impugned judgment be given effect to. (Sd.) Sh. Azmat Saeed, JUDGE (Sd.) Umar Ata Bandial JUDGE (Sd.) Faisal Arab JUDGE ' SH. AZMAT SAEED, J.- I have had the privilege of examining the judgment of my learned brother Mr. Justice Faisal Arab dismissing the instant Civil Petition. I agree with the conclusions drawn, however, I may add my own reasons. 2. Section 15 of the Legal Practitioners and Bar Councils Act, 1973, pertains to the Committees of the Pakistan Bar Council. The said provision reads as follows: "15. Committees of the Pakistan Bar Council.-(1) The Pakistan Bar Council shall constitute the following Committees, namely:-- (a) a disciplinary Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and four other members elected by the Council from amongst its members: Provided that the Attorney-General for Pakistan shall not be a member of the disciplinary Committee; (b) an executive Committee consisting of seven members elected by the Council from amongst its members; and
---
## Page 7
(c) an enrolment Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and two other members elected by the Council from amongst its members. (2) The Pakistan Bar Council may constitute from amongst its members such other Committees, including a legal education Committee, as it may deem necessary for the performance of its functions under this Act, and may authorize any such Committee to co-opt as its members any other persons, not exceeding such number as the Council may determine. (3) The Chairman of every Committee shall be entitled to vote and, in case of equality of votes among the members of the Committee, shall have a second vote." ' A bare reading of the above-said provisions reveals that two sets of Committees are envisaged; one as mentioned in subsection (1) i,e, (a) disciplinary Committee, (b) executive Committee, and (c) enrolment Committee; and second set pertains to the Committees under subsection (2), reproduced herein above. It is obvious that the Members of the first set of Committees mentioned above are elected, while with regard to the second set of Committees referred to in subsection (2), no requirement of electing its Members is mentioned in the said provision. 3. The first set of Committees mentioned in subsection (1) exercised statutory powers as mentioned therein while the second set of Committees referred to subsection (2) exercised powers as may be delegated by the Bar Council. 4. An elected Office whether Constitutional or Statutory as a general principle of law is effective for the tenure as prescribed in the Constitution or the Statute, as the case may be. A person so elected can only be removed from Office in accordance with the provisions of the Constitution or the Statute under which he was elevated, be it by a vote of no confidence impeachment recall or otherwise. No general powers envisages in the Electors to unseat such elected officials otherwise than the procedure as provided in the Statute applicable. 5. In the instant case, the life of the Committee is determined by Rule 100, which is reproduced hereunder for ease of reference: "100. The term of every committee shall be the same as that of the Council itself unless the Bar Council when constituting the H committee provides otherwise." ' The aforesaid Rule makes it clear and obvious that the life of the Committee cannot extend beyond the life of the Bar Council by electing the same. However, the Bar Council has been empowered to fix the tenure of the Committee at the time of constituting the same. In the circumstances, the minimum tenure of the Committee is not fixed by the Statute but by the Bar Council and such power is to be exercised while H constituting the Committee. Such power once exercised or not exercised is not exhaustive and there is nothing to prevent the Bar Council from re- exercising of such power in terms of the principle laid down in Section 14 of the General Clauses Act, 1897. 6. The reasons adopted by my learned brother Mr. Justice Faisal Arab, would obviously hold true with regard to the Comlnittees constituted or rather reconstituted under Section 15(2) ibid. (Sd.)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.