THE BAR AND SUBORDINATE JUDICIARY:
CHALLENGES AND OPPORTUNITIES IN
(A Research Paper)
By:
MAHBOOB[1] ALAM
NUTKANI[2]
Executive Summary
Members of various Bar Associations particularly in the
Judicial officers of
subordinate Courts, on the other hand also could not be sent to judicial lockup
even after receiving bribe in his/her Court or residence, committing gross in competency
and boldly accepting Sifarish (favoritism and nepotism). It was
categorically revealed by the judicial officers of the lower Courts that
lawyers are doing their insult with the implied consent of the honorable
majority Judges of the Superior Courts. For this clear cut violation of law no
lawyer has ever been sent to Judicial Lockup by the competent Courts. Maximum
action is registration of case and then District and Session Judges are forced
to call the insulted judicial officer and President Bar concerned with the
accused Advocate for compromise and also to drop the case if any against him/them.[4]
All Bar and Bench directly
and indirectly relating immediate challenges which are paralyzing the
administration of criminal Justice System in Pakistan have been analyzed
through qualitative research methods, conclusion and recommendations have been
made at the end.
Introduction:
Legal means relating to law; following within the provision of
law. Profession is a vocation requiring advanced education and training; esp.,
one of three traditional learned professions – law, medicine, and the ministry.
“Learned professions are characterized by the need of unusual learning, the
existence of confidential relations, the adherence to a standard of ethics
higher than that of the market place, and in a profession like that of medicine
by intimate and delicate personal ministration. Traditionally, the learned
professions were theology, law and medicine, but some other occupations have
climbed, and still others may climb to the professional plane.”[5].
Judiciary is the branch of Government for interpreting the laws and
administration of justice.[6]
Encyclopedia of crime and justice which is describing the role of
Counsel in
It was members of the legal profession, who not too long ago had
struggled for the supremacy of the law and restoration Supreme Court Judges
that were ramping through the apex Court. The incident attacking Supreme Court
by lawyers is one of many in recent memory that clearly indicates the
transformation of lawyers as a group from activists to vigilantes. Police
authorities in
ظفر
آدمی اس کو نہ
جانیے گا ہو
وہ کیسا ہی
صاحب فہم و
ذکاء
جسے عیش
میں یاد خدا
نہ رہی، جسے
طیش میں خوف خدا
نہ رہا
Bahadur Shah Zafar[9]
(Zafar, don’t consider such a person a
man, who does not remember God in affluence and who does not fear God in anger,
no matter how wise he may be).
English translation has been done by research scholar.
All the partners in the Criminal justice System feel like
acquitting themselves in passing the blame to the arena of the other agency.
The net result has been that lawyer blames
the judiciary, the judiciary find fault in the superior judiciary. Both of them
find social apathy responsible for criminal injustice and social exploitation.
The society does not know the rules of the game and the lawyers as players and
umpires have the field day. This double role of the lawyers as players and
umpires in the justice game has an adverse effect upon the quality of criminal
justice in recent years. Specially from 2007 to 2014 the law has not gone far
enough to take care of those who violate the law in applying it on live
situations in society.
All the members of subordinate judiciary from Civil Judge/Judicial
Magistrate B.S. 17 to District and Session Judges B.S. 21 in
Statement of the
Problem
The impact of the legal profession on the dynamism of the system
and quality of Criminal justice in
In Pakistani society and culture there is no check at all from the
Federal, Provincial Government and Pakistan Bar Council on Secondary Sources
available for law scholars doing research work on law books with incorrect
versions and misprinting of ordinances. In a recent judgment authored by Mr.
Justice Jawwad S. Khawaja on February 10, 2015 in a case relating to incorrect
version of section 23 of the contract Act, 1872, and misprinting of certain
sections of the Patent Ordinance, 2000 in different Law Journals and manuals on
a Suo Motu. The order also asked that the Code should include in foot-notes,
particulars of comments made from time to time in different statutes published
in the code besides marginal notes should also be made to cross reference with
the provisions of one statute with related provisions in another statute. The
sample of the Pakistan Code published by the Member of Publication (1968) may
be adopted and improved. A legislative or administrative regime should also be
prepare with effective enforcement and prosecution mechanism to ensure that law
publications for sale to the public are error free and, where applicable, have
the permission of the government owning copy sighted material.[13] As
mentioned in the judgment an improvement in publication 1968 for footnotes and
other methods the best international and HEC Pakistan approved book is
suggested for valuable scientific improvement, A Mammal for writers of
Research Papers, Thesis and Dissertation, 8th Edition, Chicago
Style for students and researchers by Kate L. Turebian, The University of
Chicago Press, London, 2013.
It should be clear that there is no culture of research
orientation in
The result is that some articles are written without any research
orientation in
There is no access of research scholar except lawyers to easily
contact for their research assignments to the members of subordinate Judiciary
or the Higher Judiciary.Therefore ninety nine percent research conducted in the
field of laws at LL.M level in the Pakistanpublic and private universities are
cut and paste and no more. In the opinion of intelligentsia writings on the
subject of law particularly are not original and creative except writings of Mr. Justice (R) Fazal Karim, Mr. Justice
(R) Mian Allah Nawaz and Mr. Justice Asif Saeed Khan Khosa of the
A Judicial case file study was conducted by this research scholar.
The record room of District and Session Judge,
Asif Saeed Khan Khosa writes for such type of cases as the first
level a Chief Justice, like a good captain, should intervene and try to bring
his responsibility home to that Judge. At the second level the Supreme Judicial
Council is to be activated in this regard against that Judge. Richard M. Nixon,
a former President of the United States of America, had once remarked that “An
effective administrator has to be a good butcher” if need be, some butchery may
also be resorted to here in larger public interest for sending a strong signal
to all concerned. As the third level temperate public comment on the Judge is
conduct or attitude should not be discouraged or punished.[15]It
also falls in violation of the article 37(d) which says, “ensure inexpensive
and expeditious justice” therefore the present judicial case study proves it as
a worst example of delayed justice and denied justice.[16] A
scholar writes “there is a time for our judiciary to indulge in introspection.
The 21st amendment is less a solution to our problem of terror and
more a vote of no confidence in our judiciary. The anger felt by the few good
men who keep our dysfunctional Justice System must be initiating Judicial
reforms.”[17]
Source:
Dawn,
It has been observed through ‘Dawn’ picture that the black coats
are dragging a security man with state uniform, which also indicate the worst
condition of rule of law. “This is a sorry state of affairs that 5000
complaints have been lodged over the past few years but to date only 17
disciplinary actions have been taken and that too against non-professional
lawyers”. This was observed by his Lordship Mr. Justice Jawwad S. Khawaja while
referring to a report submitted by Chairman of Executive Committee of the
Punjab Bar Council Chaudhry Abdus Salam during the hearing of appeal against
the order dated July 21, 2012 of former Presiding Officer Ms. Farhat Jabeen
Rana of Sheikhupura.[18]
Perjury today seems be the rule rather than the exception. The
lure of wealth in a private profession competing for success and affluence in a
developing society takes a heavy toll of ethical scruples. The unscrupulous
ones increasing in number care little about the peer reprimands. Rather, they
accuse the custodians of professional ethics for being guilty and having
violated the norms much earlier to be there, where they stand. The socially
incriminating conditions strive to find lawyer accomplices and with waiving
professional sanctions and declining ethics the unscrupulous ones can make easy
and heavy money, helpful to go high in professional esteem as well. The net
result is the miscarriage of justice and increasing harassment of the weak and
the innocent victims to whom the Police Station the Bar Room and Court room of
the subordinate judiciary in
Objectives of
Study
It was an observational study to determine mainly the causes
behind boorish and insulting behavior of lawyers which are approximately,
80,000 in Pakistan[19]
towards Judicial Officers in Pakistan belonging to subordinate Judiciary from
Civil Judges/Judicial Magistrate to District and Session Judges B.S. 21 and
Revenue Courts from Collectors to senior members Board of Revenue, B.S. 22 and
submissive behavior of these Judicial officers while accepting their insult.
(2) To compare ninety nine
percent lawyers who belong to almost all the Political and Religious Parties of
Pakistan and some of them always remain loyal entity to of every ruling party
since independence to date at Central and Provincial Governments level on the
other hand with those who are only Government and Civil Servant and without any
Political and active participative religious background at all.
(3) To correlate among the
bar, subordinate Judiciary, Revenue Courts prima facie almost their having same
level of corruption, incompetency and boldly accepting Sifarish
(Favoritism and Nepotism) which perhaps have become the sole reason for
accepting their insult as members of being in group or primary group.
(4) The object of present
study is also to have a sound bridge among these basic pillars of criminal and
revenue justice so the system could survive successfully and their mutual
respect and confidence could be restored even if required after amending the
constitution of Islamic Republic of Pakistan, 1973.
Research
Questions
1. Why
Civil Judges, Judicial Magistrate, Additional and District Session Judgesand
Judicial Officers of Revenue Courts from Collector to Senior Member Board of
Revenue are being insulted by lawyers particularly in Punjab province and
2. Do the lawyers, want the protection
provided to members of sub-ordinate judiciary under the Constitution 1973
should be waived or extended to them in the same manner?
3. Why
the subordinate judiciary and Judicial Officers of Revenue Courts are
tolerating their insult, as they are allegedly involvement in corruption,
incompetency or considering, the lawyers are acting to the implied consent from Superior Judiciary or having strong
political and religious background?
4. Is
it that hundred percent entrant as Civil Judge/Judicial Magistrate in
Significance of Study
Research Methodology
Epistemology is a theory of knowledge rather than beliefs. There
are three different epistemological positions, positivism, interpretivism and
realism. Positivist approach to social research typically means that
quantitative data are collected while in interpretivist approach means having
qualitative rich in detail and desertion description data collection. Realism
starts from research that leads to action and therefore collecting qualitative
and/or quantitative data. Critical realism is revealing hidden structures and
mechanisms, uncovering power relations and dominant ideologies.
This research paper will use both primary and secondary data. The
primary source would be semi-structured interviews, conducted by the research
scholar by selecting randomly from any of the members of Central and Provincial
Civil Services Bureaucracy, judicial officers of the subordinate judiciary,
presiding officers of revenue Courts including MBRS, lawyers, police officers,
prosecution service officers, prison department officers, media both electronic
and press representatives, litigants both victim and accused, general public
and faculty members of law colleges, universities of public and private sectors
of Pakistan. Secondary data would be collected from related reference books,
research journals and leading newspapers.
Legal Profession and its
Historical Background
From the Roman days the law experts were regarded as a support
structure to law Courts which depended quite heavily upon their knowledge of
the local or conventional laws, obtained in the Empire. The later development
of Anglo-Saxon jurisprudence, envisaged a very close and interdependent
relationship between the judge and the persons of law available of the former
for assistance. Even the beginnings of the Jury Trail or Institution of Jurors
or Justices of Peace can be traced back to the philosophy of legal experts of
unwritten laws, continuing from the Roman times.
Source:
Frank Schmalleger, Criminal Justice Today, Fifth Edition,
(New Jersey: Prentice Hall, US, 1999),125
With the rise of democracy the notion of Rule of law acquired
prominence and an organized profession of knowledgeable man of law was accepted
as an essential ingredient of the Court system developed to dispense Justice
and protect the civil liberties of citizens against the arbitrariness of the
executive. The creation of Universities in the Anglo-Saxon Countries specially
contributed to the development of science of jurisprudence. Gradually studies
in law, developed their respective specializations and student with law degrees
took to the profession of law as Attorneys and Barristers at law. Advocates or
lawyers in free societies became professionals. In other words the expectations
of professionalism forced these men of law of acquire high degree of
specialized knowledge of the discipline and also to maintain a high level of
professional standards implying exacting standards of professional ethics in
practicing law at the bar.[23]
Thus the birth and growth of bar as a professional support
structures to the Court system in a democratic country was motivated by the Courts
review and interpret the application of law in a given case after examining the
prosecution and defense arguments, for which the law experts should be
available to both the sides and they should present a battle of arguments,
presented by facts and evidences in front of a judge umpire who should reach to
a judicious decision on the basis of legal aid and judicial inputs provided
within the frame work of law.These law experts, besides being knowledgeable
specialists must be free, independent and available to all on payment of a
professional fee, no matter whether the client is a victim or a suspect or an
accused because no body is guilty unless proved and convicted by the process of
an open trial.The advocates will defend nothing but the truth, a concept which
has to be value-free and ideology insulated. They were expected to play the
soldiers of justice and a repository of juristic acumen. As disciplined players
of the law game it is immaterial for them whether the strong wins or the
innocent loses or the weak has the truth or the ignorant turns the law against
himself.
The middle man Institution of the Bar was to help the Court and
not to indulge in perjury. The theory is that a reasonable certainty of the
citizen’s rights and duties is an essential element of the Rule of Law. This is
particularly important with regard to the definition and interpretation of
offences in the criminal law, where citizen’s life or liberty man be at stake.
Such certainty cannot exist where retroactive legislation makes criminally
punishable acts or omissions which at the time they took place were not so
punishable, or if punishable, involved a less serious penalty.[24]The
faith of a free society in the individual requires that the guilt of each
accused should be proved and hominem in his case. Guilt by association and
collective guiltare inconsistent with the assumptions of a free society. Those
who have the custody of arrested persons have a particular responsibility to
respect the presumption of innocence.
The circumstances in which an arrest may be made and the persons
of entitled to act should be precisely laid down by law. Every arrested person
should be brought before an independent Court within a very short period,
preferably 24 hours, before which the legality of the arrest is determined.
Immediately on arrest an accused person should be informed of the offence with
which he is charged and have the right to consult a legal adviser of his own
choice. He should be informed of this right in a way appropriate to his
education and understanding. This right should continue up to and during trail
and during the period when an appeal may be pending. Detention pending trail is
only justified when exceptional circumstances are proved to the satisfaction of
an independent Court which should otherwise allow bail on reasonable security.
Permission to detain beyond the period prescribed should only be given by an
independent Court and such permission should be reviewed at reasonably short
intervals, when the detaining authority should be required in Court to justify
the continued detention.
Bars of
Not Withstanding the nuances of colonial philosophy British people
could not help nurturing a judicial system, rooted in the liberal philosophy of
eighteenth century
The history of the Bar Council of Pakistan, India and the Bar
associations[25] in
the provinces of both countries of sub-continent contain illustrious names of
great sons of India and Pakistan who entered into this learned profession of
advocates and laid down brilliant traditions of judicial excellence and
professional ethics in the nineteenth and twentieth century. Fortunately, the
bar in
Professionalism and nationalism helped the
Relationship between the members of the Bar and the leadership of
the Nationalist movement which bestowed a very special kind of social prestige
upon the profession, so much so that the nation of social responsibility of the
bar in terms of justice paled into insignificance. It was almost inconceivable
that the members of the Bar whose leaders were the heroes of the masses in
freedom struggle could be socially exploitative, irresponsible and delinquents.
Heavy preponderance of the advocates in the legislatures of the countries have
been a historical fact. As elites they represented the masses in legislatures
in the British days and almost the entire politics was recruited from their
ranks. The over representation of advocates in the law making and actively
participation in all the political and religious parties including ruling
political party as valuable workers. The over representation of advocates in
the Parliament, in the Assemblies and in the active field as political valuable
workers before, during and after elections has strengthened the vested interest
of lawyers as a profession in India and Pakistan politics.
Bar of Pakistan after
After independence and social changes in
Like all other professions in the changing society of
The advocates in
Everybody knows and admits that lawyers are expected to talk of
technicalities and defend their clients in the law Courts by taking recourse
behind procedures, case laws, rulings and technical details.[27]
Apparently, in Pakistani, these procedures and technicalities are more liable
to be abused and can render Court battles as sham debates to justify larger
amount of fees contracted with the clients. Once the issue of professional
ethics is forgotten, the learned lawyers can go to any extent in distorting the
procedures by all sorts of malpractices. They can make technical differences
between a corrupt practice and a malpractice and there by excuse the latter
through legal formulations. The
Lack of empirical research and evaluative studies have generated a
very special kind of stagnation and there is an appalling need of creative
thought and dynamic action to adjust the system with democratic transformation
of the society. As professionals the Advocates are their own judge and have to
spell out their own professional ethics. They are very critically related to
the society in general and bench in particular. It is common experience that
perversions of changing social order have infected the judicial system through
the medium of the Bar. The counsels organized into the Bar Council of Pakistan
context of popular awareness taking the country side. Paradoxically enough the
Bar Council of Pakistan, which is an elective body of the lawyers and has the
professional responsibility of cleaning it. Its elitist leadership of veterans’
commands respect of the co-professionals but has difficulties in arresting some
of the perversions which have made inroads into the profession, because of the
elitism of its decision making apparatus.
Challenges before and after February
2010 to February 2015:
Some of the following are immediate challenges which have
paralyzed the field of Criminal Justice administration generally since
independence and particularly after February 2010 to February 2015.
Masses hire lawyers to fight against police excesses or police
arbitrariness, but in practice this protection goes only to those who can
afford and more often than not, those who can afford are the people who need
not be protected if the police has shown guts to net them in. In other words
when police is blamed for inefficiency, corruption, halting response and delays
in handling criminals, they point their finger towards the men of law and
Justice or learned counsels and members of subordinate Judiciary who by and
large help the criminals and contribute to inefficiency, delay and corruption
in criminal justice system. Worse still, when police is criticized for this
behavior and loses its image the legal profession continues to do the same
thing with lot of social prestige in the name of freedom and law.[28]This
myth of legal defiance from open market tends to operate in favor of the
criminal and against the victim in
The technical legal complications are often created deliberately
to buy time, destroy evidence, charge more fees and keep the clients hanging
around. All this self-defeating exercise of the vested interests can keep going
in the name of justice and elaborate procedures to avoid injustice. The
profession presents a united front against the client Judiciary and the
society. The seniors not only condone but come to ready defense of all sorts of
malpractices of the procedure of the juniors in the interest of professional image
and social exposure. Being self appointed judges of their procedures and
practice without any criticism or sanction from within and without the
attorneys at the Bar have put the Court system to ransom. Therefore, recently
talking on the issue a scholar in an exclusive conversation with his another
colleague lawyer, declared “law is part time intellectual prostitution”.[30]
The younger generation of lawyers, Judges and Judicial Magistrates
do not tend to see and still less accept the conventional image of the
profession. The concept of success being too much linked with money, perhaps
there is already any lawyers and members of subordinate judiciary in Pakistan
who undertake professional exercises in test cases for the poor without any
reward. Worse still, the national press does not report legal battles in their
total nudity and the media is terribly inhibited in reporting about Court
situations, which are exclusive concerns of the lawyers and subordinate
judiciary. The poor, illiterate and innocent victims of crime keep filing past
their offices and bar rooms, and the Court rooms of Judicial Officers with
depressed looks and also behaving before them like their humble domestic
servants. Most of them keep waiting in the corners of the Bar and Courts rooms
for hours. They are forced to keep visiting their counsels and readers of
Judges/Judicial Magistrates and Session Judges according to the convenience of
the latters. Illiteracy and ignorance of law being exploitable commodities
specially in Pakistani culture and society.
A scholar writes about destroying the first constitution by higher
Judiciary is little more than a shame. He further says that, “Once the first
constitution is destroyed, it is doubtful that any succeeding one, no matter
how successfully drafted, will ever be truly accepted. A tradition which makes
it possible for new leaders to replace old documents with other which appear
preferable to them not only denies constitutionalism but makes reference to it
little more than a shame. The extent to which the events of
When Justice Munir became Law Minister in 1962, he appointed
Sardar Iqbal and Maulvi Mushtaq Hussain as judges of the West Pakistan High
Court. Both of them were fairly competent but their competence had no
comparison to their bloated egos and un-satiated ambitions They soon became
rivals and, in the process, extended their rivalry amongst judges in the West
Pakistan High Court and amongst the members of the Bar They caused the judges
and the lawyers to be divided into factions led by either one of them. Each
faction of judges was known to be pre-dispose and exceedingly accommodating to
its own faction of lawyers and exceedingly accommodating to its own faction of
lawyers and hostile to rival faction.[34]
A scholar writes at the same time about the dominance of Executive
in the shape of Bureaucrats as in Ayub’s term of office was the golden era for
them. They had become so drunk with power that in 1967, Ghulam Yazdani Malik,
Commissioner of Bahawal Pur Division, openly abused and slapped a member of the
West Pakistan Assembly from Bahawal Pur who circulated a pamphlet against him
for his excesses and injustices, in the premises of the West Pakistan Assembly.
It is important to note that despite his outrageous conduct, he was shielded by
his fellow CSP Officer for quite some time.[35]The
victim member of the West Pakistan Assembly was a renowned Spiritual Leader of
Uch Sharif’s famous Shrine and instead of this publically insulting event, his
sons have also been continuously winning the same seat till present General
Election 2013. It shows that there is no place of moral values at all in the
politics of
Matters became worse when Sardar Iqbal was appointed Chief Justice
of the Lahore High Court in 1972. Unfavorable practices developed amongst
members of the judiciary was based on favoritism and nepotism (Sifarish).
It was no surprise that the pent up feelings of the lawyers against such
practices found expression through their representatives in 1975 Sheikh Shaukat
Ali, President Lahore High Court Bar Association exploited these feelings and
targeted Chief Justice Sardar Iqbal to settle old scores. The secretary of the
Bar and a very close friend of him targeted Maulvi Mushtaq due to some personal
domestic dispute. The judges decided to strike back with their favorite weapon,
the law of contempt of Court. They submitted an unqualified apology in both
cases. It was the formal and informal beginning of abusing and beating each
other since that it has become a continuous phenomena up till February
2015.Such was the state of judiciary when the Constitution (Fifth Amendment)
Bill was moved before the parliament in September 1976 to clip the wings of
judiciary.
During the tenure of Mian Nawaz Sharif as Chief Minister Punjab
(1988-90) Honorable Chief Justice of Lahore High Court used to frequently visit
the office of the Chief Executive/C.M. for paying his regards. The C.M. became
fed up of these useless regards and directed his former C.S.P (DMG) Secretary
to ask Chief Justice not to visit C.M’s office because it is insulting for C.J
to sit and kept on waiting for his turn like other visitors. Instead C.J. kept
on visiting not daily but once in a week. It was told by a former Chief
Secretary Punjab during the research process.
Not only have the politicians failed the judiciary, but even the
judges have themselves undermined the institution The judges of the Superior
Courts have generally offered no serious resistance to any government trying to
undermine the judiciary as an institution. The judges who were superseded did
not resign in protest. The situation is all the more unfortunate in a country
where the Police, Bar and subordinate Judiciary including Revenue Courts are
allegedly corrupt and brutal and the administration indifferent. In these
circumstances, the Superior Judiciary necessarily becomes the last resort and
hope for the common citizen and if the institution loses its credibility, then
it is indeed tragic.
Due to the lack of political stability in the country,
irresponsible governments, frequent military takeovers, and constitutional interruptions,
the judiciary has been burdened with the task of determining questions which in
a suitable constitutional set-up would be left to the politicians and
parliamentarians to resolve. It is generally believed that the Superior
Judiciary in
The brightest side of
Conclusion and Recommendations:
Some thing has to be done to strengthen the moral fiber and
professional caliber with legal research work orientation and progress of the
member of the learned legal profession. The present state of the legal
profession, being far from satisfactory, warrants the following reforms:
(a) The Pakistan Bar Council should disaffiliate sub-standard colleges and Universities. Only youngsters of merit and proven integrity should be allowed to enter the law college of the Country for LL.B Degree with one year period in 3rd year of LL.B should be made mandatory for Research Report on any topic relating to Law. This would be one paper as named “Research Methodology”.
(b) The present
practice of allowing entry into the legal profession to practice in subordinate
Courts should be taken by provincial Public Service Commission of each Province
or through National Testing Service Pakistan, I-8/2 Islamabad (N.T.S). For
conducting interviews Registrar of Provincial High Court should be a permanent
member in case of written examination by PPSC of a province and Chairman in
case written examinations is arranged by N.T.S. The supreme Court and the High Courts
should hold annual Entrance Examination for their respective bars for getting
licenses of High Courts and Supreme Court respectively. This second screening
will bring the real professionals and as in
(c) The law in
(d) The mal-practices
in the legal profession in
(e) The bar should consider building a ‘citizens-lawyers’ initiative within each bar association to encourage lawyers to stay engaged with community needs and movements. Involve young lawyers in such initiatives to raise the consciousness and sensibilities of the bar. Perhaps Pakistan Bar Association could take the initiative to create a ‘Public Policy Lawyers Wing’ that will function as an informed participant in the national policy debates There are so many areas where the bar must guide the government and judiciary in formulating appropriate policy such as on issues of space derbies, sharing of satellite space, international piracy laws arid trade policies.
(f) Getting a law degree is one of the easiest things in our country. There are several spurious colleges that do not test for eligibility, do not insist on attendance, have no library or infrastructure and worse, hardly have any teachers. Therefore, there is a need to establish an academy for lawyers along the lines of the National and Provincial Judicial Academies to offer focused short duration courses on new developments in law, refresher courses, use of technology, to increase efficiencies and more Such an academy, could then be associated with a Center for legal system policy as recommended above. A’ certain minimum number of course credits should be made necessary for being designated a senior counsel or being eligible for judgeship, government posts or bar association/councils posts.[36]
(g) The bar councils must diversify their functions and eradicate the politics of numbers. The executive and disciplinary functions must be made separate from the general council as early as possible. It must be under full-timers with prescribed minimum years of practice qualification to ensure that these wings are manned or advised by wisdom and experience. Provisions must be made for non-elected advisors, who may not vote, but have a moral authority to guide. There is a need of formal client funds protection mechanism. Theft of client’s trust funds should be a concern to the entire lawyer community.
(h) The Pakistan Bar
Council should have also take appropriate steps by making a strike only for an
hour in any working day so that the poor litigant should not suffer,. In most
of cases they do not have any direct or indirect relation to these strikes.
Moreover it has become a culture to give a call for strike. In
(i) The Pakistan Bar
Council should prove to take bold steps by encouraging the procedure already
existed in the criminal justice system by sending those guilty lawyers who have
committed offence of insulting, abusing, locking and beating a Judicial Officer
of subordinate judiciary from Civil Judge/J.M to Session Judge and Collectors
to MBRs of Revenue Court. This would be a service to rule of law in
(j) Administration
means progress but
There should be a permanent committee at all the 36 Districts of
Punjab and also in other Provinces under the Chairmanship of District and
Session Judge with Vice Chairman, President District Bar concerned other
permanent member should be president of Tehsil Bar Associations of the
concerned District. The work on war footing should start simultaneously in all
district of Punjab Province. A notice in person to all lawyers and at the
notice board of Bar rooms should be affixed that within one month all members
are requested to submit attested photocopies of certificates from Matric or
equivalent to LL.B to the President District Bar, Vice Chairman of the
Committee. In case of non compliance of the request list of defaulters should
be sent to Punjab Bar Council to suspend their licenses forthwith. One month
more should be provided to them for the compliance of previous request. After
this their license should be cancelled straightaway with a registration of
criminal case under relevant laws. An affidavit should also be sought that
while doing their LL.B from any University of Sind Province or any other
province they were not doing any Government, Semi-Government or Private jobs
from where they were regularly getting pay and allowance. At the same time they
had to show their law college availability in person where it could be halting
and back to serving place would have been possible by traveling. Were they
permitted from their concerned competent authority? Such type of certificate
should be made mandatory for all with their affidavits.
Those lawyers who submit attested copies of certificate in time
their certificates and degrees should be sent by the District Committee to
concerned Boards and Universities with the official covering letter from
District and Session Judge of the concerned. After verification, in case any
certificate or degree or affidavit sent to concerned authority has been
declared as fictitious then same procedure should be adopted as mentioned for
lawyers having fake certificates and degrees. There cases should be sent to the
Punjab Bar Council for cancellation of his/her license and also registration of
a criminal case under relevant laws.
Something should also be done to strengthen the moral fiber and
professional caliber of the members of Subordinate and Higher Judiciary
together as being Judicial organ of
Justice (R) Fazal Karim writes that Mr. justice Muhammad Munir
narrated “an amazing incident” in his reply to the address of welcome as the
new Chief Justice of the Lahore High Court, Lahore. A representative of a
British Soup manufacturers, who wanted to invest in
(a) To make conditions conducive for the functioning of a democratic judiciary, it is worth a public debate whether Judges should be recruited from the bar or the Judicial Career on the Bench should not be kept open for lateral entries to members of the bar. His past hovers over his new career and the previous associations run counter to his new image of infallibility. To enhance professionalism among Judges an All Pakistan Judicial Service (P.J.S.) may be constituted. The meritorious ones, desirous for careers on the Bench ‘only’ should compete and the Junior, Senior and selection level cadres may be created at District, Province and Central levels. Those who love freedom, money and legal acumen should stay in the Bar. But those lawyers who wish to enjoy Social respect, Judicial creativity and independence against all allurements must adorn the chairs on the Bench. Such type of 50 percent senior lawyers should be elevated in the High Courts. 25 percent should be from PAS (DMG) and if they do not opt than total number should be taken from the concerned Former Provincial Civil Service (Executive) PMS for elevation. Remaining 25 percent should be made elevated from the Service Cadre of District and Session Judges of the Province concerned. Interview should be made mandatory Chaired by Chief Justice of the Supreme Court, concerned Chief Justice High Court and the most senior Psychologist available in the Province concerned as members of Interview Board. Pakistan Constitution 1973 would be amended.
(b) As regards the
sovereign will of the people, the model of the United States of America, where
the President of America sends names of the prospective candidates for scrutiny
before the Senate and the senatorial scrutiny is conducted through electronic
media after inviting objections from the citizens of the USA and the objections
so raised are put to the prospective recommendees to answer such objections
before the masses through electronic media. In case of
In order to ensure the transparency and
merit in the appointment of judges, it is suggested that the Judicial
Commission before formulating recommendation against any vacant post for higher
Judiciary, should make public the names of the prospective recommendees/appointees
through electronic/print media for inviting objectives to his appointment
within 30 days of publication. Chief Justice of
The opinions rendered by the Judicial
Commission and Parliamentary Committee of Senate and National Assembly shall be
made public documents and copies of these opinions shall be made accessible to
every citizen of Pakistan at a very marginal expenses and without any delay
Furthermore, these opinions shall be made justice-able.
(c) In
a democratic system there cannot be a concept of authority without
corresponding responsibility. The Bench cannot afford to enjoy a fair image of
silencing popular criticism in the name of contempt of Courts. The Social
responsibility of the Judges has to be seen in terms of an effective democratic
accountability of the Bench. A public and open dialogue on Judicial behavior
and relationships can help in operationalizing this responsibility and
accountability in democratic terms.
(d) But
when all the privileges and honours seem justified, no Court in a democratic
system in
(e) Article 209 (6) of
the Constitution 1973 should be amended that President of Pakistan would be
bound before taking any action first to get a approval of two-third majority of
the Upper house of Parliament, Senate only. This is compulsory for the
Supremacy of Parliament as it is almost in every democratic country of the
World except
(f) One of former
Chief Justice of Lahore High Court Lahore through his close relatives took
boldly bribe in cases of the appointment of Civil Judges/Judicial Magistrates
B.S. 17 in millions of rupees and now this group is famous in their service as “cash
group”. The same was the case of 150 lawyers recruited in the same way in
1974-75 by the Government of Z.A. Bhutto Former Prime Minister of
(g) During the
research process it has been expressed with great concern that C.J/J.M
competition exams should be taken by Punjab PSC forth with. It should be for
all Law Graduate as this condition
remained operative since the creation of P.P.S.C.The last about five
examination had been taken by imposing of two years mandatory practice as an
Advocate. It is also one of the basic causes of lawyers frequently insulting
member of subordinate judiciary and sometimes insulting judicial officers of
Revenue Courts. Moreover, it is a discriminating behavior that Judiciary has
been made from B.S. 17 to Judge of Lahore High Court 100 percent from the
profession of lawyers community. Therefore, mandatory condition of two years
practice as an advocate should be waived forthwith. Lahore High Court, Lahore
was pleased to allow the C.J/J.M with lawyers having experience of 10 years to
appear in the competitive examination of Additional District and Session Judge
B.S. 20 for the first time.It should be relaxed to PAS (DMG) PMS (Former
P.C.S., E.B.,) otherwise it would be a discrimination on the part of honorable
Lahore High Court, Lahore which is in violation of article 3 of the
Constitution of Islamic Republic of Pakistan, 1973. For both competitive
examinations in B.S. 17 and in B.S. 20 officers having LL.B Degree and required
experience for B.S. 20 posts from the PAS (DMG), Former PCS (E.B), PMS should
be allowed in the larger interest of justice. It would definitely enhanced the
standard of present Subordinate and Superior Judiciary. The best available
example is Former Justice Kyani who was a Civil Bureaucrat.
(h) Civil Judges/Judicial
Magistrates after qualify the competitive examination would go for four month
pre-service training at Provincial judicial Academies, one month more, Revenue
training at Provincial BoRs and one month more training for Civil and Criminal
Cases with Registrar’s Office of concerned High Court. A total training would
be six months as it is provided in the same way to PMS officer at Management
and Professional Development Department, Upper Mall,
(i) The collectors up
to SMBR B.S. 22 of the Revenue Courts as Appellate Revenue Court at Provincial
level in Pakistan could be arrested on the spot while getting bribe by the
raiding party of Anti Corruption Department of the Province concerned while
Civil Judge, Judicial Magistrate up to District and Session Judge B.S. 21
Appellate Court at District Level could not be arrested by any authority in
Pakistan. They are subordinate to High Court concerned. Almost all the lawyers
were of the view, when members of the subordinate judiciary could not be
arrested even after getting the bribe boldly why are they be sent to Judicial
lock up?
There are two suggestions for solving the problem. First
suggestion is that the members of the subordinate judiciary should be held
responsible before Anti Corruption Department of the province. Second
suggestion is that there should be a cell at District level. One officer in
B.S. 17 as Civil Intelligent Officer with two Inspectors intelligence B.S. 16
each, the peon, one Chowkidar and one Suzuki Pick up 800cc with a driver would
be under the control of High Court of a Province. The committee would have the
power of raiding any member of subordinate Judiciary with the prior written
approval of District and Session Judge of concerned District. For raiding
District & Session Judge only, the Civil Intelligent Officer who would be
also exercising the inherit power of Magistrate First Class, would request the
Registrar of High Court on telephone to get the prior permission. The members
of the subordinate Judiciary would remain in his/her house arrest or at in any
building taken on rent by the concerned High Court. After the finalization of
the inquiry by the High Court he or she would be at the mercy of High Court to
excuse or punish him/her any way according to the law/rules.
The system now requires rule of law and justice between lawyers
and members of subordinate judiciary, new updated codes/laws instead of present
PPC 1860 and Cr.P.C. 1898 with some amendments through scientific research
methods, having the Ph.D in Law as a permanent Incharge Research Cell under the
The Holy Book Quran as a primary source
and these stanzas of the poem “BOL” bring secondary source were remained a
spirit of inspiration.
Speak, for your lips are
free
Speak, your tongue is still yours,
Your upright body is yours
See how in the blacksmith’s shop
The flames are hot, the iron is red,
Mouths of locks have begun to open,
Each chain’s skirt has spread wide.
Speak, this little time is plenty
Before the death of body and tongue:
Speak, for truth is still alive.
Speak, say whatever is to be said.[40]
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