STRIKES BY ADVOCATES HAMPER THE ADMINISTRATION OF JUSTICE

S B L R 2022 Article 29

 

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“Beware! Every one of you is a shepherd and everyone is answerable with regard to his flock. The Caliph is a shepherd over the people and shall be questioned about his subjects……….Beware, every one of you is a guardian and every one of you shall be questioned with regard to his trust” [Sahih-Muslim-4724 / (INT:1829)]

 

STRIKES BY ADVOCATES HAMPER THE ADMINISTRATION OF JUSTICE AND POSE A QUESTION TO THE INDEPENDENCE OF THE JUDICIARY

 

BY

 

IMTIAZ ALI SHAH

Advocate & Legal Consultant | Former Judge | Student of Doctorate

 

 

• An introduction….Strike is not indispensable

 

Legislature provides the legal course for the panacea of grievances, but people often recourse to strike when it does not come to help. The strike is a concerted work stoppage, interruption, or slows down by a body of employees to enforce submission with demands made on an employer[1]. In the judiciary, a strike usually takes place in response to the advocates’ grievances. Although the supreme law of the land recognizes the right to assemble[2], such freedom is not absolute. When advocates assemble to protest frequently without any justification, they impede the administration of justice. Law has provided a specific method for protest and requires it to be done in that manner, and who can be well-versed form such etiquettes than Advocates. The strike is not the answer for all tribulations; instead, it boosts the unfairness and discrimination when taking place on trivial and unimportant matters or when advocates criticize a judicial or government policy. Such circumstances cause various complications for litigants and judiciary, and it also affects the significant profession of advocacy. The Supreme Court of Pakistan, Bar Councils, and the Government must take decisive actions and enact the relevant laws and rules to meet such an attention-seeking issue.

 

2.0.0 Legal explanation for the strike or boycott call

 

The Legal Practitioners and Bar Councils Act 1973 introduces the law regulating the conduct of advocates and bar councils, and provides certain incidental and ancillary matters to it.[3] It also deals with the provisions for the constitution and incorporation of bar councils, enrollment of advocates, their right to practice, seniority, regulate their conduct, etc. Besides, the Pakistan Legal Practitioner and Bar Council Rules 1976 deals with electing members of respective Bar Councils. It also enshrines the powers and duties of members and Bar Councils. The enactments regarding common-roll of advocates, enrollment to different courts, and disciplinary proceedings are also mentioned therein. The Rules define the Canons of professional conduct and etiquette of advocates in detail.[4] However, there is no single provision regarding the word ‘Strike’, which is entirely unanticipated. The word ‘Protest’ has been used twice in the Rules; firstly, regarding grievances of advocates against a judicial officer.[5] Secondly, the Rules impose a duty upon the advocates to prevent political influences concerning fitness for the appointment and selection of judges, and they have been given the right to protest against persons not suitable for the Bench.[6] As opposed to, rules also impose a duty on the advocates to uphold the dignity and reverence of their profession and as a member thereof.[7] Further, it says that personal discourse among advocates causing delay and encouraging disputes should be judiciously avoided.[8] There are also some obligations on the advocates to preserve and safeguard the rights and interests of their clients. They must also strive for maximum learning and capability in all aspects to deliver their full potential in accordance with the application of rules and laws. They should not restrain from discharging their duty due to fear of judicial disapproval or public dissatisfaction. The law provides remedies and defenses to the litigants, and they expect their advocates to avail such treatments for them. Nonetheless, advocates must discharge the trust of their clients within the bounds of the law. While performing his professional duty towards the client, he must listen to his conscience[9] and should not give preference to the client because his prime responsibility is towards the court. Regarding the court, whence a case is called the advocates have to ensure their appearance, or in case of their absence, they should arrange an acceptable substitute.[10] Concerning the general public, an advocate, will discover his most significant admiration for reliability to private belief and public obligation as a far man and or energetic and steadfast citizen.[11] The non-observance or infringement of the canons and behaviour by an advocate might be considered to be professional misconduct making him obligated for disciplinary action.[12]

 

2.1.0 The right to assemble and freedom of expression are not absolute

 

Although the Constitution of Pakistan remarks that every citizen shall have the right to assemble peacefully and freedom of speech and expression, but it also stipulates that such rights are subject to any rational restrictions imposed by law in the interest of public order. Constitution does not explicitly provide the right to protest; however, democratic society recognizes such freedom. Suppose the advocates believe that it is their constitutional right to assemble and protest for their rights. In that case, they must be careful that their exercise of the right is justified, and it must not encroach upon the basic rights of litigants and the constitutional duty of the courts to deliver justice expeditiously. Constitution does not allow or authorize the advocates to call strike or boycott court proceedings. In Suo Motu Case No. 7 of 2017 authored by Honourable Mr Justice Qazi Faez Isa, the Supreme Court of Pakistan has enunciated that, “Every citizen and political party has the right to assemble and protest provided such assembly and protest is peaceful and complies with the law imposing reasonable restrictions in the interest of public order. The right to assemble and protest is circumscribed only to the extent that it infringes on the fundamental rights of others….The right of assembly, the freedom of association and the freedom of speech cannot be exercised by infringing the fundamental rights of others”.[13] Furthermore, the High Court of Sindh has laid down that, “It is paramount to record that the right to protest is not unfettered and that it remains subject to all just restrictions, especially that such class action must be devoid of any resort to violence and / or any infraction of the law. Any attempt or perpetration of violence and / or precipitation of a law and order situation is disapproved by the law, and strict sanctions are envisaged for the perpetrators”[14]. The Supreme Court of India has firmly held that, “A litigant has a fundamental right for speedy trial of his case, because, quick trial, is an integral and important part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants, and such infringement cannot be permitted. Even if it is assumed that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in the exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for a speedy trial. The right to practise any profession or to continue any occupation guaranteed by Article 19(1)(g) may embrace the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in court while holding a vakalat in the case”.[15] The right to protest by the advocates cannot be permitted to trespass the litigant’s necessary right for fast trial and due process of law or to meddle with the administration of Equity. An advocate has to co-operate and assist the court in the systematic dispensation of justice.

 

3.0.0 Movement for the restoration of judiciary

 

There was a time when advocates movement[16] demonstrated magic in Pakistan. The lawyers abandoned their legal work and took the streets on peaceful protest. They had to face social, financial, physical, psychological problems for a long time, and their families suffered. They gave their blood and sweat for the independence of the judiciary. They were attacked, arrested, tortured, persecuted, and gone through many miseries, but they never gave up and stood beside the judiciary for the course of justice. Resultantly, the protest led by the worthy advocates towards Islamabad restored the Chief Justice of Pakistan against the strong-minded opposition of a stubborn executive of the country.

 

3.1.0 Movement turned into strikes on unimportant issues

 

Since then judiciary took a new road, and advocates’ strikes became routine work on minor subjects. I recall an event when I was posted as Civil Judge & Judicial Magistrate-II Kandiaro in 2018; the advocates announced the strike and decided to abstain from court proceedings. The President of Taluka Bar Association, Kandiaro accompanied by fellow lawyers, came to my chamber and asked to suspend the court work; when I enquired what the reason is for the strike, they replied that today is 1st Muharram, the day of martyrdom of the second Caliph Hazrat Umar Farooq; thus they have decided to celebrate it by suspending court work. I was surprised and asked them, are you sad that Hazrat Umar Farooq was martyred for Islam? They said no, so I replied, if you are not unhappy, why have you decided to go on a strike and are causing disturbance to the litigants, who have come to get relief? Further, I told them that they are also hampering the court work; hundreds of litigants have to suffer due to advocates’ protest in the honour of Hazrat Umar, and it is not going to please his soul. They said we are doing it because District Bar Association has also done it. However, I became speechless. I thought advocates are officers of the court and enjoy a unique position in society, so they should not disturb the court. Advocates are well acquainted with the law scheme, and it is not expected from them to bypass it. It has been perceived time and again that they participate in the strike in unity with a fellow advocate whose complaint has not been registered by police; or when their clients have not been compensated adequately in a court case. Even in situations when an F.I.R is registered against an advocate, or he got arrested. There is a list of unimportant issues on which advocates resort to strikes. There are several cases when advocates went on strike because a fellow advocate had passed away. I often ask myself why army officials do not observe strikes when soldiers die on the battlefield. Why do bureaucrats and judges not protest and abstain from their work when their fellow officers expire during the service? Whether their lives are less precious than that of the legal fraternity?

 

3.2.0 Differences between bar and bench

 

Due to minor altercation with Judges, the advocates assembled and boycotted courts. They demanded excuses from the Judges or their transfers from their high ups. If the Bar and Bench are unable to resolve their issues amicably, It is certainly going to diminish the sureness of the public in the judiciary. There are also some cases when advocates recourse to strike in favour of particular judges. Advocates display these unwarranted acts to express the authority of the Bar Council / Association in the shape of passing resolutions even against the Judges of Superior Courts. Reasonable remedy has been provided to learned advocates against the Judges under Rule 159 of Chapter XII of Legal Practitioner and Bar Council Rules 1976; however, they completely ignore it.

 

4.0.0 Litigants at large suffer

 

Prime victims of strikes are litigants, who usually wait to seek justice from courts. Many innocent persons remained incarcerated behind bars. Some have been looking for their rights for a long time. However, their cases usually adjourn from one date to another, and such a vicious cycle keeps spinning. The people’s faith is shattering from judiciary due to delay in adjudication, often occurred by the uncalled strikes. This delay led to the denial of justice on a national scale. It means that Courts and Counsels have taken a heavy toll on the litigant’s patience, time, hope, and money. It has been a recurrent display within the later past to witness that advocates boycott the court work at the slightest provocation overlooking the harm caused to the litigant and to themselves within the assessment of common people. Where counsel does not appear in the court prepared with facts and law on legal propositions, such lapse on his part would show disregard to the values of the profession, the obligation towards the court in the administration of justice and carelessness of his duty towards client—Such counsel has not only committed a breach of the injunctions of Islam but has also committed a breach of promise to his client.[17] The elite class, feudal lords, politicians, and police victimize the poor and needy people, and then they knock on the door of the judiciary for Justice. Under no circumstances should a litigant suffer a disadvantage or difficulty to get the justice, either at the hands of advocates or Judges. The Supreme Court of India has emphasized this issue in the case of Roman Services Pvt. Ltd, it was held that “the question was whether a litigant should suffer a penalty because his advocate had boycotted the court pursuant to a strike call made by the association of which the advocate was a member. In answer to this question it has been held that when an advocates engaged by a party is on strike there is no obligation on the part of the court to either wait or adjourn the case on that account. It was held that this court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad’s case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this court recorded”.[18] Thousands of cases are fixed daily in the courts, and millions of people cover the long distances to reach the court; they close their shops and businesses and abandon their all works to attend court hearings. When the advocates call the frequent strikes, the proceedings become a stopover, causing financial loss to the litigants in general to the people who have spent money to reach the court.

 

4.1.0 Hamper the performance of judiciary

 

The judicial work should not be allowed to be obstructed at any cost by intimidating or harassing practices, whether it is by litigants or by counsel. Due to the strikes of advocates, the performance of the judiciary is exposed to solid brakes and the whole proceedings of court on that particular day become motionless. Hence, such mismanagement of advocates discontinuing the judicial work raises a finger on the independence of the judiciary. The judicial process must run its course unrestrained by any boycott call of the Bar, or strategies of delay embraced by any part thereof,.…advocate cannot request the court to adjourn a case on the ground that he does not want to join court proceedings.[19]

4.2.0 Portray a horrible picture of advocacy in society

 

The advocates are upholders of justice. They are fighters for the cause of righteousness and fairness. They are soldiers in black coats. They are professionals in the field of law. A person, however high or low he may be in his status and position, whenever he finds himself in trouble, always look for an advocate to consult with, who can guide him,  support him, protect his right, and plead his case before a court of law to get legal help for him. The apex Court of India, in the petition of the Indian Council of Legal Aid and Advice[20]^, observed that, “It is generally believed that members of the legal relief profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility favour and, therefore he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.” I recall my first visit being a student at S.M. Law College, Karachi, in 2010. I read the words printed on a marble above the door frame, where it was written that, “law is a noble profession and success is only attained to those who persevere, work hard, are determined and industrious, and above all have a natural altitude for this work. This is a great profession and you owe an obligation to yourself, your people and the client who pays you. You are not there to squeeze money or bargain”. It was the message given by Quaid-e-Azam Muhammad Ali Jinnah to law students. I felt enthusiasm and excitement and wanted to become an advocate as possible. However, I felt pretty upset when I joined the profession of advocacy and went to the City Court, Karachi. I was shocked to see the attitude of advocates towards the courts and how they were suspending the court works mainly on unimportant issues. The representatives of respected Bar Councils and members of Bar Associations usually write letters and use the wordings in the text messages that ‘The Sindh Bar Council had decided to observe full day strike/boycott of court proceedings’, ‘Learned Advocates of all the Bar Associations of Sindh are requested not to attend the Court proceedings’. While addressing to Judges, the language is ‘You are, therefore, requested to please keep suspended all Judicial works and not to pass any adverse orders against the parties and also necessary directions be issued to sub-ordinate Courts for the same. Here I want to respectfully ask from the legal fraternity, whether judges can suspend the court work at the request of advocates? Whether Bar Councils or Bar Associations have the authority to ask advocates not to attend the court proceedings? Whether such acts communicate a positive message to the general public for advocates? I believe the answers will be undesirable, so such practices damaging the respect and honour of this noble profession require a serious rethinking.

 

5.0.0 SUPERIOR COURTS HAVE TO PLAY THE ROLE OF STRIKE-BREAKER

 

Highlighted losses to the judicial system of this country have made a deep cry for strong and bold actions required by the superior courts of this country. Strike is collective dealing which is identified merely in industrial disputes. An advocate who has taken the case of his client must ensure his attendance before the court; else, it violates the professional conduct and decorum of the advocate. Usually, a strike occurs due to an inevitable dispute between the employer and employees. The advocates are not the employees; instead, they are court officers. The Supreme Court and High Courts may take this scorching issue in notice and declare the ‘Strikes’ of advocates unconstitutional and illegal. The Honourable Superior courts of Pakistan should frame rules to standardize the conduct of advocates; they ought to declare that it is the earnest duty of Judges to proceed with the case during court hours. Courts should not surrender to pressure strategies, boycotts, or threats. The court is an impartial entity, and it must not participate to the strike and is obligated to proceed with the cases and dispense justice to society. Due to the strike announced by Bar Councils or Bar Associations, the courts are not obliged to adjourn a case. If superior courts do not deprecate and condemn the act of strike and boycott and make the declaration in that regard, they can’t play the role of strike-breaker. Supreme Court of Pakistan may settle down a like-nature verdict, as laid down by the Supreme Court of India in the case of Harish Uppal vs U.O.I. and others[21], wherein the apex court has shown its discontentment over the strike of lawyers. The ratio decidendi was settled that, “For just or unjust cause strike cannot be justified, as sufferer is society public at large.” Mr. Justice S. N. Variava gave the finding that “The lawyers have no right to go on strike or give a call for boycott, not even on a token strike….The lawyers holding vakalatnamas on behalf of their clients cannot refuse to attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Bar Association or the Bar Council and no threat or coercion of any nature, including that of expulsion, can be held out. No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. Only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. However, it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore, in such cases, the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. However, the Courts are under no obligation to adjourn matters because lawyers are on strike”. ^[22] In addition to, Mr. Justice M. B. Shah presented a concurring ruling that “Whatever be the situation in other fields, lawyers cannot claim or justify to go on strike or give a call to boycott the judicial proceedings. The strike by lawyers is an attempt to interfere with the administration of justice. [Para 40]”.[23] Supreme Court of Pakistan is the ultimate protector of both the Bench and Bar, the decisions are binding on all other courts in Pakistan.[24] The Judge of the Supreme Court is also Chairman of the disciplinary committee of the Pakistan Bar Council[25] and Chairman of Tribunals of Bar Councils.[26] Whenever an advocate holds the vakalatnama for a litigant, in that case, he cannot refrain from appearing in the court. If he does, he is liable for disciplinary proceedings for committing a breach of duty, contract, and trust. He shall be held liable by the Courts and Bar Councils to suffer all the consequences. Such verdicts and findings are the requirements of the moment for the sole uprightness, honorableness, and development of the administration of Law and Justice in Pakistan.

 

5.1.0 Role of the bar councils, bar associations, and senior/ eminent advocates of Pakistan

 

The Bar Councils and Bar Associations being in charge and representatives of the legal fraternity are empowered by the law to regulate the advocates’ conduct. It is also their duty to maintain the prestige of Courts and the magnificence of law. For the sake of the Administration of Law and Justice, Bar Councils must perform their task to guarantee that there will be no unethical behaviour by advocates. Pakistan Bar Council should incorporate clauses in the disciplinary Chapter of Bar Council Rules 1976 that the Bar Council cannot even call for strike or boycott, and if any advocate participates in a strike or boycott call, his license will be suspended. It follows that strong enactments should be introduced into the Rules that Bar Councils and Associations under no condition consider any demand calling for a conference to deliberate a call for a strike. Such requisitions should be ignored for the smooth functioning of courts. The supplement of new rules must be resilient. Suppose any District Association proclaims a call for a strike the solicitous Provincial Bar Council, and on its inattentiveness to take action, the Pakistan Bar Council must initiate disciplinary proceedings against the advocates who gave a call or participated in the strike. The Supreme Court of India cited the joint meeting held on 28^th and 29^th September 2002 of the Chairman of several Bar Councils and members of Bar Council of India; It was determined that advocates cannot adopt non-participation in court work except in extraordinary conditions.  It should not last for more than one day, and such a decision would be taken by two-thirds of members present of the Bar Association. Further, Grievances Redressal Committee would be constituted at each level to resolve advocates’ complaints. Conversely, the Supreme Court of India has ruled down that, “Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the country, in our view, the above resolutions are not enough…… What is at stake is the administration of justice and the reputation of the legal profession. Nobody or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizens, i.e. the litigating public, Courts will always have the authority to compel or enforce the exercise of the power by the statutory authority. A lawyer being part and parcel of the legal system is instrumental in upholding the rule of law. A person casts with the legal and moral obligation of upholding law can hardly be heard to say that he will take law in his own hands. It is, therefore, time that self-restraint is exercised……The final decision can only be of the concerned Chief Justice or the concerned District Judge. Such final decision, whatever it be, would then have to be accepted by all and no question then arises of any further agitation [paragraph 30]”.[27] Recently, on 27^th August 2021 Senior advocate Mr. Manan Mishra, Chairman of the Bar Council of India, expressed to a bench of Justice D.Y. Chandrachud and Justice M.R. Shah in an appeal filed by District Bar Association, Dehradun against the decision of the Uttarakhand High Court holding strikes/boycotts of courts by advocates to be illegal that “it has convened a meeting with the Council at all times in this regard. Mishra told the apex court that ‘we convened a meeting of the Council at all times with the BCI. We propose to frame rules to prevent strike boycotts, rules are being framed to punish bar association members for going on strike without proper justification”.[28] These bold and audacious steps are also required from the Pakistan Bar Council and respective Provincial Bar Councils so that rule of law and administration of justice must be upheld at all times. The Grievances Redressal Committee should also be constituted at Tehsil, Districts, Provincial, and National Level for determination of grievances of advocates. The committee must be comprised of members of Bench and Bar, and together they work toward the betterment, improvement, and advancement of the judiciary. The final deciding authority must be the courts. Such a decision must be followed by the Bars; consequently, the representatives of the Bars must first consult with the Head of District / Provincial / National Judiciary before deciding to remain absent from courts. In case of failure, superior courts may suspend or direct the bar councils to suspend the license of advocates. Further in an individual capacity, every advocate must confidently disregard strike or boycott. In the words of H.M Seervai India’s most outstanding lawyer, jurist, and distinguished scholar that, “Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our constitution. The strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to perform those duties, the advocates in return have to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyze the working of the courts. “In my submission”, he said that “it is high time that the Supreme Court and the High Court make it clear beyond doubt that they will not tolerate any interference from anybody or authority in the daily administration of justice. For in no other way can the Supreme Court and the High Court maintain the high position and exercise the great powers conferred by the Constitution and the Law to do justice without fear or favour, affection or ill-will”.[29] Senior and Eminent advocates of Pakistan ought to come forward to address this issue because there is an absolute necessity that strikes and boycott calls must be stopped at once and for all; intended for maintaining the respectability of noble profession of advocacy, honorableness of judiciary and welfare of the public at large.

 

5.2.0 State’s responsibility to ensure speedy justice by reviewing laws regulating the conduct of advocates.

 

It is the main duty of the judiciary and also an obligation on the State to ensure inexpensive and expeditious justice to its subjects.[30] The Constitution of Pakistan declares that “the independence of Judiciary shall be fully secured”.[31] Strike is contrary to the basic principle of ‘Due Process of law’ as enshrined in the constitution.[32] Every person is to be treated and dealt with according to law of land. The apex court has held time and again that, “No action detrimental to life, liberty, body, reputation, or property to any person could be taken except in accordance with law”.[33] Any activity without due course of law is unlawful and without jurisdiction. Strike not only violates the fundamental rights of litigants but also halts the working of the judiciary and raises a serious question on its independence. Until the State shall not make new enactments in the Legal Practitioner Act, 1973 and declare that the advocates doing strike or participating in it shall be subject to disciplinary proceedings, it’s impossible that people get speedy justice. There is a dire need of enactment, in which it must be presented that the clients who engage and pay the fees to the advocates put their trust and faith and spend their money on them, and they have no right to remain absent from courts owing to the reason of strike. Thus, the litigants should be entitled to recover the compensation for the loss caused to them due to the acts of their advocates. The contempt of Court Act may also be amended, and it should be added in the Act that “a boycott or strike by advocate amounts to professional misconduct and contempt of court because the advocates participating in the strike keep their clients as hostages and their interests in jeopardy and due to that confidence in the administration of justice is shaken, and Judges are being interfered in the dispensation of justice; hence, the license of advocates should be suspended for a certain prescribed time.” The Law Commission of India has put emphasis on the need of revising Regulatory Mechanism and Regulatory bodies, etc., and suggested broad improvements in the Advocates Act for the directive of disciplinary control over advocates, and also endorsed suitable amendments to make the law more inclusive thereby enabling Legislature to approve a law that would efficiently permit the authorities for such effective regulation.[34] The Law & Justice Commission of Pakistan is also responsible for the improvement and perfection of the legal scheme in the State and is intended for recommending reforms in laws and statutes. Advocating for quick justice is also one of its duties.[35] The commission should ponder over the issue of ‘advocates strikes,’ which impedes the administration of justice. The commission should invite suggestions from all stakeholders. The attention of the Pakistan Bar Council and Provincial Bar Councils ought to be drawn for the sole purpose of a better judicial system, and such a myth must vanish that lawyers are out of the law.[36]

 

5.3.0 Alternative to Strike and call of boycott

 

If the right to strike is declared illegitimate and unconstitutional by the Apex courts of Pakistan, the Pakistan Bar Council and Law & Justice Commission of Pakistan will make crucial enactments in the relevant rules and laws correspondingly. So the question arises what course will be available to advocates to raise their voice against injustice? How will protests be registered against the strategies of the executive, policies of the judiciary, and attitude of Judges? How will they redress their grievances? What remedy will be available to them? To answer these questions, it must be clear that the resolution should be to record a protest and not to immobilize the judiciary like the incident of Islamabad High Court, which was a tragedy for black coats and judges.[37] The alternative methods of protest can be explored from the landmark judgment of the Indian Supreme Court, where Justice Variava ruled that, “the protest, if any as required, can only be by giving press statements, T.V. interviews, carrying out-of-Court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from Court premises; going on dharnas or relay fasts, etc”[38] Besides, as discussed above, the Pakistan Legal Practitioner and Bar Council Act, 1973, and Pakistan Legal Practitioner and Bar Council Rules, 1976 should be amended.

 

6.0.0 Conclusion

 

To conclude, there are no two opinions that the Strike or boycott call by the advocates offends the Judicial System. The Moto of Judiciary and State to serve the society is being compromised. Rule of Law is affected, and the wrong message transfers to the community. The constitution and other laws do not authorize the advocates to observe strike or boycott, not even on a minor issue. The rights to assemble and freedom of expression are guaranteed under the constitution, but such rights are subject to reasonable restrictions. Erstwhile, the advocates launched an enormous and resilient movement against the dictator for the judiciary’s independence and succeeded in accomplishing their positive objective. It is also known as the movement for the restoration of the judiciary. However, such drive has now twisted into strikes and boycott calls; the advocates are now resorting to strike on trivial issues, which could be resolved harmoniously. Due to the strikes, litigants suffer at a massive scale, the functioning of the judiciary is shackled, and a disgraceful image of advocacy is being communicated to the general public. The Superior Courts of Pakistan should emphasize this subject and declare the ‘Strike’ unconstitutional and unlawful. Necessary directions should be given to the Bar Councils and Bar Associations to avoid giving a call for the strike, or even considering a meeting to refuse to attend the court. Likewise, the august court should pass directions for the subordinate judiciary to continue the court proceedings, even in the absence of lawyers. The Pakistan Bar Council should consult with Provincial Bar Councils and ought to amend the rules to regulate the conduct of advocates. It should be clarified that No Bar Council or Bar Association will give a call for a strike, and the disciplinary proceedings will be initiated against the advocates who attend the strike or boycott the court work. The renowned advocates ought to play the role of foremost warrior for the cause of the judiciary. Moreover, the Law and Justice Commission of Pakistan should also make enactments into the law to standardize the functioning of Bar Councils and Bar Association and to regulate the conduct of advocates. Grievances Redressal Committee may be constituted so that depending upon where the integrity of the Bar council is involved, the issue could be resolved amicably, and in no case advocates should opt to a walkout. The protest, be in need of, can only be demonstrated in any reasonable manner, which neither prejudice the rights of litigants nor hinder the progress of the judiciary. Merely in the unexpected cases where the nobility, astuteness, and autonomy of the Bar and Bench are at stake, courts may disregard a peaceful protest for not beyond a day. That is to say; the Courts must not be a party to the stoppage of work. If due to strike, an advocate having a case of a client refrains from appearing in court; In that case, he might be personally at risk to pay costs to the client for misfortune endured by him, which shall be in addition to damages. Furthermore, his license should also be suspended for some prescribed period. The judiciary is the vital organ of the State. Without allowing it to perform its duties independently, the whole mechanism of State will be at risk, giving rise to the situation of lawlessness.

 

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[1] Legal Definition of ‘Strike’ on https://www.merriam-webster.com/dictionary/strike

[2] Article 16 of the Constitution of Islamic Republic of Pakistan 1973

3. Preamble of Legal Practitioner and Bar Councils Act, 1973

4. Chapter XII of the Pakistan Legal Practitioner and Bar Council Rules 1976

5. Rule 159 of Chapter XII of the Pakistan Legal Practitioner and Bar Council Rules 1976

6. Rule 165 of Chapter XII of the Pakistan Legal Practitioner and Bar Council Rules 1976

7. Rule 134 of Chapter XII of the Pakistan Legal Practitioner and Bar Council Rules 1976

8. Rule 140 ‘Supra’

9. Rule 156 ‘Supra’

10. Rule 166 ‘Supra’

11. Rule 172 ‘Supra’

12. Rule 175-A ‘Supra’

13. P L D 2019 Supreme Court 318

14. 2021 CLC 323 [Sindh]

15. Hussainara Khatoon v. Home Secretary, State of Bihar (1979 CriLJ 1036)

16. https://en.wikipedia.org/wiki/Lawyers%27_Movement#:~:text=The%20Lawyers’%20Movement%2C%20also%20known,2007%20when%20he%20unconstitutionally%20suspended.

17. Sobhdar Khan vs The State (2001 CLC 1559 Karachi-High-Court-Sindh)

18. Roman Services Pvt. Ltd. vs. Subhash Kapoorreported (2001) 1 SCC 118

19. Mahabir Prasan Singh vs M/S Jacks Aviation Private Ltd (Supreme Court of India on 13 November 1998)

20. In Indian Council of Legal Aid and Advice v. Bar Council of India [1995] 1 SCR 304

21. (2003) 2 S.C.C. 45

22. Quoted Supra

23. Quoted Supra

24. Article 189 of the Constitution of Pakistan 1973.

25. Section 15 of the Legal Practitioner and Bar Councils Act, 1973

26. Section 42 of the Legal Practitioner and Bar Councils Act, 1973

27. Harish Uppal Vs. Union of India (U.O.I.) and Ors (2003) 2 S.C.C. 45

28. https://english.newstracklive.com/news/bci-said-in-the-supreme-court–will-make-rules-to-punish-the-lawyers-involved-in-the-strike-mc23-nu764-ta764-ta321-1179073-1.html

29. An article of H.M Seervai titled “Lawyers Strike and Duty of the Supreme Court”.

30. Clause ‘d’ Article 37 of the Constitution of Pakistan 1973

31. Preamble of ‘Supra’

32. Article 10-A of ‘Supra’

33. Ayaz Ahmed Memon vs Pakistan Railways through Chairman and 8 others (2017 P.L.C. (C.S) 226)

34. https://lawcommissionofindia.nic.in/reports/Report266.pdf(Law Commission of India Report No. 266)

35. https://web.archive.org/web/20030805075137/http://ljcp.gov.pk/

36. https://www.youtube.com/watch?v=CYCUF9OIzTI

37. https://www.thenews.com.pk/print/792419-ihc-attack-case-court-issues notices-to-21-lawyers

38. Per S. N. Variava, J. (Harish Uppal Vs. Union of India (U.O.I.) and Ors (2003) 2 S.C.C. 45)

 

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