A failed model

Published November 23, 2020
The writer is a lawyer based in Islamabad.
The writer is a lawyer based in Islamabad.

AN open letter by a learned additional district & sessions judge from Punjab has recently led to much consternation on both conventional and social media in the past few days. The grim picture painted by the ADSJ concerning the lower courts of the country, as she lamented the “disrespect and naked abuse”, is not surprising to those associated with the legal profession in Pakistan. Although many in the legal fraternity have been outraged by the conduct of certain groups of lawyers in numerous incidents, with the PIC attack being just one of many, it has not been enough to end the stasis.

Responsibility for the existing state of affairs lies first and foremost with the respective bar councils which are meant to regulate the profession in terms of the Legal Practitioners and Bar Councils Act, 1973. The Pakistan Bar Council is mandated under the Act to regulate the conduct of advocates of the Supreme Court while other advocates are regulated by their respective provincial bar councils.

The bar councils in this country are by no means weak or undemocratic institutions having played a constructive role in laudable causes including the independence of judiciary. However, sordid stories of misconduct by lawyers that emerge repeatedly, especially in the lower courts of Pakistan, are indicative that the provincial bar councils in particular are failing to effectively discharge their regulatory duties including the obligations under Section 9(c) of the Act to entertain and “determine cases of misconduct against advocates on its rolls and to order punishment in such cases”. What then is the cause of such failure?

A quick look at the Act reveals that in case a complaint of misconduct is initiated against an advocate, it is first assessed by a disciplinary committee of the respective bar council. The disciplinary committee comprises up to five members of the respective bar council itself as elected by the bar council. It may upon assessment dismiss the complaint summarily, dismiss the complaint after conducting an inquiry, or refer it to a tribunal for decision. The tribunal in turn comprises two members of the respective bar council and a judge of the high court nominated by the chief justice of the respective high court. Thereafter an appellate process firstly before the Pakistan Bar Council and then before the Supreme Court is provided for.

Why are bar councils unable to check lawyers’ misconduct?

In short, anyone wishing to file a complaint of misconduct against an advocate has to pass a two-stage process in which members elected by advocates themselves dominate the entire process. Thereafter, an appeal may lie to the Pakistan Bar Council, another representative body of lawyers, after which one final appeal is available before a truly independent forum ie the Supreme Court.

The process raises serious questions concerning the conflict of interest and impartiality of adjudicators which are amongst the most basic requirements of the principles of natural justice. The theory of regulatory capture, recognised by our superior courts in cases such as ‘Barrister Sardar Muhammad vs Federation of Pakistan’, describes the current scenario. It occurs where a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interests groups, often at the expense of public interest.

Such concerns are lent further credence when some candidates for bar council elections bemoan the ‘smear campaign’ against ‘innocent’ lawyers with the use of terms such as ‘wuqlagardi’. The entire process presently seems designed not to provide justice but to frustrate any attempts to penalise a lawyer. The figures and recommendations contained in the 2014 report submitted by Secretary Punjab Bar Council before the Supreme Court in Criminal Petition No. 240 of 2012 corroborate this view.

As per the report for the period 2009-2015, the Pakistan Bar Council disposed of 11 complaints with no penalty imposed in any of them; 29 complaints were received by the KP Bar Council with penalty being imposed in one case (3.4 per cent) while the remaining cases were pending in the relevant period; 117 complaints were received by the Punjab Bar Council with penalty being imposed in five cases (1.7pc) while 96 of the 117 cases filed remained pending; 27 new complaints were received by the Sindh Bar Council none of which were decided in the relevant period of five years.

The Supreme Court noted in its order dated 31.08.2012 in Criminal Petition No. 240 of 2012 that “A competent, diligent and ethical Bar is an indispensable component of our judicial system. This system cannot function properly if Members of the Bar do not adhere to the code of conduct prescribed under the Legal Practitioners and Bar Councils Act, 1973”. Eight years on it is clear that a process of accountability by independent and neutral adjudicators is a necessity to achieve that goal.

The writer is a lawyer based in Islamabad.

Twitter: @90anique

Published in Dawn, November 23rd, 2020

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