THE
COBBLERPRUDENCE
By:
ZOHAIB IMRAN SHEIKH
Advocate High
Court & Service Tribunals
Zohaib_imran_elahi@hotmail.com
Attended
the dignified farewell honored for Mr Justice Sheikh Azmat Saeed, Chief Justice
Lahore High Court Lahore, (Now Honorable Judge Supreme Court of Pakistan),
inspired from the recitals of Mr Ashtar Ali Ausaf, Learned Advocate
General Punjab (though repeatedly named as Ashtar Ausaf), memorized the great
emotional religious stuff humbly recited by Mr Justice Umar Ata Bandial, (Now
Honorable Chief Justice Lahore High Court Lahore), just mentally disturbed me
the continuous focus of Justice Sheikh over Bar-Bench Relationship, as perhaps
the honorable judge was indirectly referring to the Faisalabad incident,
happened this month. I am constrained to write. Bar association being statutory
bodies, always have been declared performing pivotal role in the development of
institutional building, administration of justice, which term ropes judiciary
in general and in particular includes in its most generic sense all characters
responsible for the smooth working of judicial institutions, a lawyer
definitely. Judges are declared not dependent upon the assistance of bar, as
they must know all laws of the lands, read frequently, in the books. Entering
the law field, eyeing on esteemed positions, lawyers usually think to become
part of judicature provided under Article 175 of our constitution. Article 212
is separate debate. In our system, most of young entrants join senior advocates
with manifold purposes in mind, learning, appearances, social networking etc,
as apparently most of litigant are not ready to accept the orphan lawyer, but
again this is not universal formula devised for every young entrant. Dreaming
for lower judiciary and subsequently entering therein opens new horizons of
life in all connections, respect, monetary satisfaction, power, lust for
promotions etc, allures them. Allah SWT in Sura Rehman directs for
maintenance of proper balance in all spheres of life, including judiciary, i.e;
balance the system by appointing proper persons. Let the merit and competency
prevail. It was narrated that Mak-hool said: To go forth and have my neck
struck is dearer to me than being appointed as a judge. It was narrated
from Raafi’ that ‘Umar ibn Hubayrah summoned him to appoint him as a judge, and
he said: I would not like to be appointed as a judge, even if the pillars of
this mosque were turned into gold for me. It was narrated that Ibn
Shubrumah said: Do not dare to assume the position of judge until you dare to
be exposed to the sword. (PLJ 2012 MAGAZINE 34)
It
takes the same physical calories while respectfully bowing before the court in
recognition of due authority of court, as well as while bowing down to have
shoe in hand and throw over the court. First makes you jurist and later a
disastrous “cobbler”. Every judge is, and must be independent in its own
judicial decisions subject to Article 203 and Article 189 of constitution of
In
a case cited as AIR 1954 SC 10, Indian Supreme Court declaring certain
permissible limits of criticism of a judge by the lawyer or bar associations
subject to definite exceptions. As, held by our apex court in Justice Saeed Uz
Zaman Siddique’s Case that criticism must take the form of reasonable argument
or expostulations, must be made in good faith, devoid of any personal
imputations and improper motives. The right of public or private criticism
within those limits is the right possessed by every citizen. Like legislature,
executive and press, judiciary is also open to criticism, but subject to
certain limits and boundaries developing with the passage of time and varying
from case to case. The Faisalabad Bar Association should have been interested
to uphold the dignity and purity of courts more than the subordinate judges
themselves. Better position enjoyed by lawyer come to an end, moment, he tries
to commit assault, violates the oath undertaken at the time of enrollment,
outrages the sacred image of black coats. Mr Contemnor at
Honorable
Lord Denning in his landmark treatise “Road to Justice (1955)” defined
the contempt of court as; “it has been defined as a despising of the authority,
justice or dignity of the court. Generally speaking, he whose conduct lends to
bring the authority and administration of the law into disrespect or disregard,
interferes with or prejudices parties or their witnesses during a litigation,
or otherwise tends to impede, embarrass, or obstruct the court in discharge of
its duties, is guilty of contempt of court”. Capturing the contempt definition
in Halsbury’s Law as referred in AIR 1967 SC 1494 , “any act done or writing published which is calculated to bring a court
or a judge into contempt or to lower his authority or to interfere with the due
course of justice or the lawful process of the court is contempt of court. Any
episode in the administration of justice may, however, be publicly or privately
criticized, provided that the criticism is fair and temperate and made in good
faith. The absence of any intention to refer to court is a material point in
favor of the person alleged to be in contempt”. Hurling shoes on honorable
judge requires interpretation. But in AIR 1966 MP 342, that the
intention of contemnor is of no relevance. The vires of Contempt of Court
Ordinance enforced for the time being has been dealt by Honorable Apex Court in
Justice Hasnat’s Case PLD 2011 SC 680, requires no more better
discussion here. Broadly speaking, the unjustified and excessive criticism of
the judiciary is treated as contempt of court, the ground on which it is so
treated is that such unwarranted, unjustified and unocassioned malicious
criticism tends to undermine the prestige and dignity of the judiciary, forcing
one effect, such like attacks if gone unattended has also the tendency to shake
the confidence of the common man in the impartiality of the judiciary. It was
held in PLJ 1996 SC
1616 that administration of Justice can be effective only if its
image and respect remains unchallenged, majesty and dignity of law courts is not compromised
and confidence of
people is not shaken-jurisdiction of superior courts in contempt cases is intended to protect
itself from any action tending to obstruct impartial administration of Justice or impair dignity of court. Our Supreme Court holds
that fair comment and opinion not cognizable. Making of fair comments about a
judge of a judgment is the right of every citizen long as the same are
bonafidely made. Fair comments by an individual are based on his view point
which cannot be made cognizable under nay law. Opinion not derogatory to
judiciary and the view point not ridiculing it are rather healthy signs by
public deposing trust and owning its judicial system. See 2011 SCMR 948 RIAZ HANIF RAFI VS SAEED
UZ ZAMAN SIDDIQUI. Right, but what about showing heels to honorable judge
like a cobbler, it destroy the whole super-judicial structure, believe or
not. Let me discuss the cobblerprudence.
The Indian Supreme Court held that throwing shoes and resorting to scurrilous
attack upon judge by lawyer amounts to grave contempt of court. AIR 1984 SC
1374. In another case, cited as 1981 (3) SCR 536, a lawyer
confronted an Indian honorable judge by hurling shoe, when the case was called
out for hearing, the honorable judge pointed out consequences of non-deposit of
process, and accordingly invoked the provisions of Order IX Rule 2 CPC by
dismissing the case. This led the shoe story, which was duly taken up by
hauling the contemnor and ultimately declaring the said action as gravest
contempt of court. Following case is also illustrative. If a member of the bar
hurls an attack against a sitting judge of high court in respect of anything
done or omitted to be done before he became a judge, proceeds to file a
complaint in a criminal court against him and makes allegations which tends to
create an apprehension in the minds of public “regarding the integrity, ability
and fairness of a judge”, it is very serious matter should require attention or
necessary action under contempt laws. 1986 CRLJ 758. In AIR 1961 PAT 1 &
AIR 1936 PC 141 it was held that the attack made on the munsif magistrate
disparaging in character and derogatory to his dignity would vitally shake the
confidence of the public and impair confidence of court in such a way as to
create distrust in the popular mind and impair confidence of the people in the
court. Judges have to discharge responsible and often disagreeable duties and it
is essential that they should be afforded full protection if the administration
of justice is to remain independent, clean, fearless and impartial. In the
present case, the Munsif Magistrate had already decided the case, but this is
of no consequence as the attack on him, even in respect of that case, had the
tendency to shake the confidence of the people.
The
proper term is “justice” and not mere court or judge. The contempt law aims at
maintaining the proper institutional balances and its inherent values provided
under the constitution. Irfan Qadir while defending PM Gillani’s contempt
matter before apex court was on the foolish lines to say that
No
society can exist without the laws, and laws exist for the welfare of the
people, laws have however no meaning if they cannot be enforced. Head of the
state, called by whatever name, is responsible to administer the law and impart
justice. Any disobedience shown to the law is punishable. Similarly, any
disrespect shown to the law is punishable. Any interference with the course of
justice, any obstruction caused in the path of those seeking justice, any
disobedience to the orders of the court are all punishable as contempt of
courts. I can fully understand the feelings of Mr Justice Asif Saeed Khosa,
while dictating the order in CRIMINAL
ORIGINAL PETITION NO. 06 OF 2012 IN SUO MOTU CASE NO. 04 OF 2010, while renovating in Para No 3 of his
lordship’s note said as follows:-
Pity
the nation that achieves nationhood in the name of a religion
But
pays little heed to truth, righteousness and accountability
This
is the essence of every religion.
Pity
the nation that demands justice for all
But is
agitated when justice hurts its political loyalty.
Pity
the nation that is led by those
Who
laugh at the law
Little
realizing that the law shall have the last laugh.
Indeed,
pity the nation
that
does not discern villainy from nobility.
The
rules embodied in the law of contempt of court are intended to upheld and
ensure the effective administration of justice, both civil and criminal. “to
speak generally, contempt of court may be said to be constituted by any conduct
that tends to bring the authority and administration of law into disrespect or
disregard, or to interfere with or prejudice parties litigant or their
witnesses during the litigation” (OSWALD, CONTEMPT OF COURT 3RD
EDITION PAGE 6). I must add that even lower judiciary responsible in defending
the sacred constitutional provisions must not be left unattended to be outraged
by the winks and sadist attitude of non-professional beings, posing to be
officers of court. Had the
The
position of an advocate has been termed akin to public service. This inter-se
relationship of Bar and Bench has deepened roots for proper administration of
justice, the exalted position bestowed upon lawyers. As held in AIR 1959 ALL
211, the statement made by a counsel from the Bar is ought to be accepted,
without evaluating its genuineness. Advocates are a privileged class enrolled
not only for the purpose of rendering assistance to the courts, but also to
members of public. The position, training, and practice give them immense
influence with the public and other domains etc. The major element of training
starts when the person seeking law degree applies in the institution for such
purpose, his aptitude, background, general ability to learn matters, and I know
right of education is fundamental right. The ACT 1973 provides certain barriers
before a Law degree holder is licensed to practice. The major object of
interviewing and keeping a candidate on road for six months probationary
period, provided by the law, is to assess his/her suitability of sustenance in the
law field, general disorders if any. Unfortunately the hardest stage of
interview is just relaxed by the members interviewing in the Bar Council by
asking moral support for upcoming elections. This being the consideration,
destruction is must, and it’s just started. The high court must itself satisfy
as to the proper eligibility and suitability of an apprentice, instead of just
allowing the Bar Council run arbitrarily, manned by extraneous considerations.
“There are of course important limitations upon the freedom of conduct of an
advocate. Although the court will be more lenient towards litigants conducting
their own cases, in general all advocates will be expected to respect the
dignity and authority of the court and to behave responsibly. Barristers even
more than layman will be expected to conform to the usages of the court and the
rulings of the judge. They will, for instance, be expected to be properly
dressed (i.e dark suits etc) and although no barrister improperly attired is
likely to be charged with contempt………………………there is no doubt that advocates
thus unprofessionally attired cannot insist upon being heard if the judge
objects to their unprofessional style of dress. (OSWALD ON CONTEMPT, 3RD
EDITION 1910)
The
purpose of punishment for contempt of court is not to protect to court or the
judge from a repetition of attacks and interferences, but to protect the public
from the mischief they will be facing if the authority of one court is
destroyed by any means, including attacks by lawyers. Prior to enforcement of contempt of Court
Ordinance 2003, the superior courts have been protecting their authority and
dignity, in a celebrated judgment, where the appellant, a leading lawyer and
another riding a mother vehicle and wearing garlands and one of the appellants
holding megaphone leading a procession of lawyers starting from District courts
with placards glorifying one of the appellants and terminating at the main gate
of high court. Processionists walking through city streets shouting slogans
against the judiciary and like that law of contempt of court are reminiscence
of British imperialism etc. The apex court held that there can be no gainsaying
that lawyers are officers of the court should be as much interested to uphold
the dignity and purity of the courts as the judges themselves, further held
that a strong and independent bar is essential for an efficient judicial system
in any modern state. And ultimately the apex court maintained the conviction
awarded by Lahore High Court Lahore. PLD 1976 SC 713 HAKAM QURESHI VS THE
JUDGES OF
One
of the basic principles of modern system of justice is that a person is
entitled to a fair trial free from prejudice. No system of justice can be
effective unless a trial fair to both sides is ensured and there are many rules
of law and practice intended to support this principle. Public faith in the
proper administration of justice and in the authority of law, which is
essential for an ordered society, is of course promoted and supported in many
ways. The law of contempt gives one kind of support by providing a sanction
against scurrilous abuse of judges of allegations that a judge or court is
biased. Both “scandalizing” the court and the type of criminal contempt
involved in prejudicing one particular trial are often referred to as
constructive contempt’s. The more obvious and direct form of criminal contempt
which disturbs or interrupts court proceedings---contempt in the face of the
court. It would be impossible to administer the law if the courts had no
effective power to maintain order and decorum during court proceedings. The
system must be protected, instead of individuals. In 1990 (2) CIVI LJ 625 (ALL)
scandalous allegations made against Indian judicial system and judges by a
person residing in
In
another case, reported as PLJ 2001 SC 53 titled as MUHAMMAD AFAQ VERSUS STATE, the court took cognizance of the matter, where the
alleged contemnor was found tearing the cause list and assaulting
functionary of court. In reply to show cause notice, the blatant defense
was that that incident took place outside court Room and
the offence according to the alleged contemnor fell within mischief of
Contempts
are divided into two groups, direct and indirect Contempts. If the contempt is
offered within court, it is direct contempt. If it is offered outside the court
room, it is indirect. A direct contempt consists of words spoken or acts
committed in presence of the court or during its intermissions which tends to
subvert, embarrass or prevent justice. Under this classification come acts such
as attempting to influence a judge in his decisions pending the time of
submission of case, fighting in the court or in such close proximity to the
court as to be, in effect, within its immediate presence, threatening,
assaulting, or intimidating witnesses or the court’s officers while in court,
and addressing language to the court intimating that the judge is ignorant and
unfair. Where the primary purpose it to
preserve the court’s authority and to punish for disobedience of its orders,
the contempt is criminal. Where the primary purpose is to provide a remedy for
an injured suitor and to coerce, compliance with orders, the contempt is civil.
And when holding criminal contempt proceedings, the courts are, it has been
said, sitting to all intents and purposes on their own functions. A criminal
contempt involves no element of personal injury. It is directed against the
power and dignity of the court, private parties have little, if any, interest
in the proceedings for punishment.
Moving contempt application against a judge on flimsy grounds with
deliberate intention of embarrassing and disqualifying him from trying a case,
setting up against him unfounded plea of bias, open expression of lack of
confidence in the judge without any valid reason and then urging him to release
a case, and seeking unnecessary adjournments on non existent grounds with
oblique motives of arresting or obstructing the progress of case are the
instances of contumacious conduct tending to interfere with the administration
of justice inviting action for contempt.
AIR 1988 ALL 143 & AIR 1988 SC 107 & AIR 1969 ORI 117. Following
judgment is also beneficial, in which it was held that the attack on individual
judge of the court as a whole with or without any reference to particular cases
causing unwarranted and defamatory aspersions upon the character and ability of
the judge would mean scandalizing the court. 1985 CRLJ 1716. There can’t
be any room for doubt that the “justice is sold” or “justice is auctioned”
by judiciary is not only serious, but heinous type of scandalizing of the
court. It means that decisions are not given on merits, not according to law,
but according to price which one can pay. These words are certainly scandalous
and the contemnor is guilty of committing contempt of court by scandalizing the
judiciary in general and local munsif in particular. AIR 1961 PAT 360, 1980
(5) RCRC 272. Members of the legal profession are under no duty to their
clients to make grave and scandalous charges either against the judges or the
opposite parties on the mere wish of their clients. They are not puppets
compelled to obey the dictates of their clients where matters of good faith and
honorable conduct are concerned. They are responsible to the court for the fair
and honest conduct of the case. They are agents, not of the man who pays them
but are acting in the administration of justice and in matters of his kind they
are bound to exercise an independent judgment, and to conduct them with a sense
of personal responsibility. If they fail to act with reasonable care and
caution they are unfit to enjoy the privileges conferred upon them by law, and
serious breaches must be visited with punishment. AIR 1924 ALL 253
REMEDIAL MEASURES STATED
a)
Legal Practitioner and Bar Council Act 1973 and rules made there
under be amended to strictly man the quality legal education imparted by law
colleges and universities, ultimately producing the law graduates,
b)
The Interview Committee of Punjab Bar Council must associate a
psychiatrist to duly observe the physical as well as mental credentials of
applicant seeking enrollment, the said action be not allowed to get influenced
by any extraneous or personal considerations, and interview must be an
interview instead of mere social interaction,
c)
Rightly observed by Honorable Chief Justice Bandial today in writ
against University of the Punjab, the Universities must consider the mandatory
diplomas of personality building of law graduates, as either of them fail in
recoursing proper law chambers/associates, leading to devastative conditions
and consequent unethical behaviors,
d)
There should be permanent personality and professionalism monitor
system in Punjab Bar Council duly Supervised by Honorable Lahore High Court
Lahore, with random checking of lawyers conducting cases before courts and
imposition of lawful penalties for their slackless attitude, if any, and
recording the same in their performance dossiers to be maintained by both Bar
Council as well as Lahore High Court Lahore. The continuous loss of
professional qualities should be strictly visited with removal from practice,
as under Service Laws, a civil servant earning continuous bad ACR’s entails
termination either in public interest or otherwise. Besides so, the respective
high courts must consider maintaining performance dossiers of lawyers appearing
before them and observations/based on such checking be made binding upon
the Bar Councils, requiring strict
action against the lawyers,
e)
The online system of verification system of lawyers though present
on Punjab Bar Council Site but does not work, leading to disastrous effects, in
as much as, it promotes Bara-Darism/toutism menace, as the layman client
intending to engage new counsel fails to get his identity verified electronically
and personal verification is very cumbersome procedure in Punjab Bar Council,
f)
As adopted by high courts, subordinate courts must also consider
registering the lawyers electronically by allotting them respective computer
codes, and said identification code must be incorporated in the bottom of each
and every pleadings. On the other hand, the lawyers must refrain from
encouraging the law student not duly enrolled from conducting cases in courts,
g)
As the legal profession not part time job or pleasure, therefore,
the Punjab Bar Council should again consider amending the law, thereby barring
the entry/enrollment beyond 35 years of age, and that of retired government
servants, in recent past, this amendment made in law proved to be very helpful,
but recalled without assigning any reasons. Though it was within the competence
of amending body, but over all public interest also matters. Definitely, the
retired judges, judicial officers and attorneys etc would get their memberships
resurrected instead of enrolling afresh,
h)
Under Legal Practitioner And Bar Councils Act 1973, the competent
authority must also revisit the acknowledgment/affiliation of law
colleges/institutions, in as much as, various private law colleges operating
and ensuring law degree either does not contain any professional faculty, or
otherwise encourage students to go through without even attending a single
class. All law colleges and universities must be made answerable under Legal
practitioner and Bar Councils Act 1973 directly and before respective high
court indirectly, this would be closer to judicial review by high court. In
nutshell, there should be some broader objective criteria for every law
institution before it offers law degree.
i)
Touts, ghost lawyers are real menace of our judicial system, and
working under revolutionized identities, they are simply difficult to trace and
dealt with. But as I observed, most of lawyers believe success in practice by
adopting toutism. Painful, but a rude reality. This issue requires indulgence
of not only bar councils but also the superior courts. Mere defining the “tout”
does not serve any useful purpose, must be an end.
j)
The Bar Councils must consider injecting proper law graduates as jurists, who would definitely
believe in jurisprudence, instead of cobblers, who have their own
cobblerprudence.
There should be an end. Judges as
persons, or courts are institutions, deserve proper protection from physical as
well as worldly assaults. Some body might have fixed in his mind the letter
drafted by Naeem Bukhari Advocate containing allegations against Chief Justice
of Pakistan, which formed the very basis for judicial revolution, but its
effects stood evaporated vide judgment reported as PLD 2010 SC 61,
reviving the deserved respect of courts. The traditional confidence in courts
that justice will be administered in them, its object is protected by law of
contempt. Scandalization of court is a kind of contempt and may take several
forms. Attack on the judge functioning as a judge substantially affects administration
of justice, and then the public confidence must be saved by grilling up such
contemnors. Lawyers must behave in decent ways, instead of cobblers, shoes in
their hand, frightening the judges and that too in open courts, nothing but the
proper use of contempt law and removal from rolls can remedy the situation.
Even the atomic scientist, Dr Abdul Qadeer Khan condemned brutal and fanatic
action of lawyers in his recent address to Lahore Bar Association Lahore. Alas!
The disciplinary committee of