ISLAMABAD: The Supreme Court Bar Association (SCBA) challenged on Friday the Supreme Court Rules 1980 barring the change of lawyer when a litigant files a review petition.

Supreme Court Bar Association President Kamran Murtaza filed the petition in the Supreme Court in line with the association’s April 10 resolution authorising him to file the plea for enforcement of fundamental rights under Articles 10A (fair trial) and 18 (freedom of trade and business).

The petition has sought an amendment to Order 26 Rule 6 of the Supreme Court Rules 1980 on the grounds that it impinges upon the rights of a litigant to engage a lawyer of his choice and encourages monopolies in the practice of law.

“The rule indirectly blocks the fair access to justice which is against the Constitution.”

The petition argued that the rule placed unreasonable restrictions on the practice of an advocate in the Supreme Court by denying him freedom to appear as counsel in review, forcing the litigant to engage another lawyer against his will and denying him freedom to choose a qualified counsel of his choice.

The issue cropped up when former MNA Sumaira Malik engaged senior counsel Asma Jehangir in a review petition against her disqualification by the apex court, instead of Advocate Iftikhar Gillani who had represented her in the first round of litigation.

On October 28 last year, a three-judge bench headed by then Chief Justice Iftikhar Muhammad Chaudhry had imposed a life ban on Sumaira Malik from becoming a member of parliament for possessing a fake degree.

The court ruled that the BA degree of Ms Malik was a result of impersonation, fraud and falsehood and, therefore, such a person was not qualified to contest for not being sagacious, righteous and honest as ordained by Article 62(1-f) of the Constitution.

During the hearing of Ms Malik’s review petition on September 11 this year, Kamran Murtaza had indicated that the Supreme Court Bar Association would challenge the Supreme Court’s rule.

The Supreme Court Bar Association petition contended that the rule had the potential to be used selectively and thus was open to discretion of the court which had not so far been structured.

“The rule also gives rise to forcing an unwilling counsel and client to engage in a relationship that is based on trust and acceptability for a counsel to accept a particular brief. It can also be exploitative for a litigant because due process is denied to a litigant by forcing him to engage a particular counsel against his wishes and not a counsel of his choice,” it argued.

The petition said the rule should be in conformity with the Constitution and fundamental rights.

Published in Dawn, October 25th , 2014