Legal fraternity’s conundrum

December 08, 2013


SINCE the judicial awakening of the legal fraternity in Pakistan in 2007, a thorny issue being faced by both the bar and the bench is the demand by many districts in Punjab that high court benches be established in their respective districts.

There have been protests in these districts, crippling judicial functions, and of late even sit-ins in front of the Supreme Court of Pakistan culminating in clashes with the law enforcement agencies.

In the jurisdiction of the Lahore High Court — the oldest seat of justice in Pakistan — the establishment of benches started when Ziaul Haq promulgated the High Courts (Establishment) Order (Punjab Amendment) Ordinance, 1981.

Through this ordinance, high court benches were created overnight in Bahawalpur, Multan and Rawalpindi. Under the rules, all matters pending within the area assigned to a bench are to be filed before and disposed of by that bench.

It was felt at that time that the paramount reason for promulgating the ordinance was not any legal expediency; rather it was the anti-dictatorship stance of the lawyers from Lahore which irked Zia.

He dealt a deliberate blow to the Lahore High Court Bar by creating circuit benches and taking away legal work from Lahore-based lawyers.

This obviously added to the legal fraternity’s dislike of Ziaul Haq who was never allowed to set foot on the premises of the Lahore High Court despite all his efforts.

Mr M.D. Tahir, a lawyer known for his pro bono work, filed a writ petition with himself as petitioner challenging the establishment of these benches. But there was no judicial determination and the petition after more than two decades was eventually disposed of due to the petitioner’s demise.

Pakistan is not the only country where the courts have had to deal with such divisions. In the Eighth Amendment case of the Bangladesh Supreme Court the martial law proclamation order no. 11 of 1982 led to the division of the high court into four permanent benches.

After the revival of the Bangladesh constitution, Article 100 was amended setting up six permanent benches. Lawyers started a movement against this fragmentation of the high court.

The jurisdiction of the high court over the permanent seat was curtailed as benches had mutually exclusive jurisdictions.

Petitions were filed challenging the amendment and the rules on various grounds. According to the most notable of these, the high court with plenary judicial power over the republic was a basic structure of the constitution which could not be altered or damaged. Therefore, the amendment was void having rendered the high court with basic judicial power over the entire republic non-existent.

On appeal, the Supreme Court of Bangladesh held the amendment of Article 100 to be void and the benches were quashed.

In India, the legal fraternity in the south is demanding circuit benches of the high court and a Supreme Court circuit bench in south India. Lawyers in Meerut and Ghaziabad want circuit benches of the Allahabad High Court but their demands have not borne fruit.

If population explosion is cited as a reason for more high court benches then Uttar Pradesh, whose population is more than Pakistan’s, should have benches all over the state rather than just one circuit bench — the Allahabad High Court in Lucknow.

Similarly, Indian Punjab and Haryana are two states but have only one high court that functions at Chandigarh with jurisdiction over 40 districts of two states.

The Lahore High Court Bar Association, one of the oldest bars of Pakistan, has made its stance on the subject very clear by declaring through a resolution in March 2013 that it opposed any suggestion of creating additional benches of the Lahore High Court.

It has also called for members to be allowed to file petitions before any bench of their choice. Mr Abid Saqi, president of the Lahore High Court Bar Association, says that lawyers have raised a banner for consolidation of the high courts and not for driving a wedge between them.

The decision to establish benches at Multan and Rawalpindi was a deliberate one by a military ruler to divide the Lahore High Court Bar; justice is not a ‘vegetable’ that it should be delivered at the doorstep, rather, it requires assistance from both sides of the bar; the dispensation of justice as per the law is a serious matter, says Saqi.

He further quotes the examples of India and the US where the Supreme Court holds hearings only in the capital city.

Interestingly, in Pakistan, under the Supreme Court Rules, 1980, the jurisdiction of the principal seat (Islamabad) is open and any appeal or petition can be filed before it, irrespective of the area of origin, but before the high court benches the jurisdiction is mutually exclusive.

Whether or not we need additional circuit benches is a burning question which will have arguments on both sides; but where the existing circuit benches in Multan and Rawalpindi are concerned, though established in 1981, to date it is lawyers from Lahore who have been engaged in important cases.

The legal training and judicial environment required for a high court are missing in the districts clamouring for benches. If these are established it will be tantamount to the liquidation of the Lahore High Court which has a judicial history of over 150 years, and whose jurisdiction before the partition of the subcontinent extended from Peshawar to Delhi.

When the Lahore High Court was established, one of the objectives was to distance itself from local disputes, so that the law could be applied in an objective manner away from local persuasions.

Lahore has the unique distinction of being the legal capital of Pakistan. We as members of the legal fraternity owe allegiance to the Lahore High Court; let’s not be a party to destroying a glorious and historical institution.

The writer is an advocate of the Supreme Court of Pakistan.