Bar And Bench

Bar And Bench

“…It is in the interest of both the Bench and the Bar for advocates to uphold at all times the dignity and high standards of their profession and abide by the prescribed canons of professional conduct and etiquette.”[1]

In my previous article for Courting The Law[2], I primarily discussed that the two-fold duty of advocates is to be respectful towards the court and to also file a complaint of misconduct against a judge in the manner prescribed under the law instead of taking the law into their own hands.[3] This lays the foundation for the present discussion as well.

“…The Bar and Bench are two wheels of a chariot involved in the dispensation of justice. Both are supplementary and complementary to each other.”[4]

In common terms, the phrase “Bar and Bench” denotes all the lawyers and judges collectively. The Bar and Bench are the two main pillars on which the system of justice stands. Their interdependence on each other is such that the end product of fair administration of justice cannot be achieved without their collective efforts. A judge cannot singly deliver justice without the support of the Bar. As laid down by our Supreme Court:

“We have emphasised time and again that backlog and delays in quick dispensation of justice are serious threats to the existing judicial system of Pakistan. The judges cannot perform their duty without support and cooperation of the Bar…. The time has come when we have to take stern measures in order to preserve the system of administration of justice to discourage protracted trials, so as to improve access to justice and enable the accused to have a fair trial, so that those found guilty are suitably punished and innocent people are set at liberty. We should follow a middle course between the two well‑known maxims of “justice delayed is justice denied” and “justice rushed is justice crushed”.”[5]

The delivery of justice is not possible without improving access to justice, which is broadly defined as “an integral part of the rule of law in constitutional democracies and a hallmark of civilized society”.[6] The Bar and Bench that sail the same ship, cannot fight the high and challenging tides of the sea if they pick individual sides; a deadlock between these two organs is not sustainable for the country. The most important challenge today for the Bar and Bench is to improve access to justice. In the laudable words of the present Chief Justice of Lahore High Court, Justice Mansoor Ali Shah:

“Everyone has a right to have one’s day in court. Unimpaired access to justice forms the foundational pillar of rule of law and is a loud reminder that we live and breathe in a constitutional democracy where justice, even though blind, never sleeps.”[7]

The blame is for both the Bar and Bench to share. On one hand, the increasing culture of Bar representatives calling strikes over political or any other issue directly impedes access to justice, and this must come to an end. The society has better expectations from lawyers and doctors than boycotts, as both perform the noble functions of safeguarding the right to life and liberty enshrined in Article 9 of the Constitution. Even professional ethics require that “It is the duty of advocates to appear in court when a matter is called and if it is so possible to make satisfactory alternative arrangements.”[8] There must be better ways of registering protests instead of bringing the system of justice to a halt. It is without question that gone are the days of dictatorship. As a vibrant society, everyone must stand for what is right, but the way of standing must also be right. On the other hand, judges seriously need to do something about the pending cases. If they are insufficient in number, perhaps they could increase the working hours. If none of us step out of the comfort zone, the fruits of justice will remain in imaginations only.

For a proper workability of the legal system, it is imperative for both the Bar and Bench to strictly adhere to their respective codes of conduct, because no one is above the law.

“…For safe administration of justice, the Bench and Bar, both should have to discharge their duties vigilantly and strictly in accordance with law.”[9]

In addition to the other duties discussed in my previous article, the advocates are under a duty to ensure:

“A self-respecting independence in the discharge of professional duty, without denial or diminution of the courtesy and respect due to the judge’s station is the only proper foundation for cordial, personal and official relations between the Bench and the Bar.”[10]

Similarly:

“A judge should be god-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he [or she] should be strong without being rough, polite without being weak, awe inspiring in his [or her] warnings and faithful to his [or her] word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him [or her]. In the matter of taking his [or her] seat and of rising from his [or her] seat, he [or she] shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the court, while maintaining an equal aspect towards all litigants as well as lawyers appearing before him [or her].”[11]

Whenever there is a conflict between individuals from both the Bar and Bench, the first thing that happens is that the Bar unites to support its own member regardless of the merits of the matter. One of the major reasons why bar councils have not been able to take adequate measures to enforce professional ethics is that they are afraid to take hard decisions in fear of losing voters and supporters. With the exception and all due respect to some honest and upright members who are sincere in their work, bar politics has become a dirty game of winning elections by whatever means possible, due to the silence of the majority. Martin Luther King, Jr. warned:

“History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people.”

It seems that the leaders of global and domestic politics have successfully instilled a notion of “either you are with us or against us” in the minds of the people. If a politician talks about the corruption of other politicians, attacks are made on his or her private family life. Similarly, if an Advocate, without having any personal or political agenda, stands for the rule of law to bring his or her own house in order first, he or she is labeled as a traitor by some members of the Bar. “There comes a time when silence is betrayal.”[12] I say that time has come.

The recent incidents of lawyers physically attacking Lahore High Court, chanting contemptuous slogans and pelting stones in the garb of extending support to an accused (Multan Bar President in a contempt of court case) for not appearing before the Court despite service of notices, are condemnable. The constitutional right of freedom of assembly and speech are not so elastic that they can be stretched to make a mockery of the independence and dignity of the judiciary.

I am neither pro- Bench, nor pro- Bar. I am pro- rule of law, including the duty of advocates to be professionally ethical. Whether the grievance is of some of the members of the Bar against the alleged misbehaviour of a judge sitting in Multan Bench or the exercise of power in relation to the working of Benches by another judge, it must be raised before the competent forum instead of the Bar becoming “a judge in its own cause”. Regarding the establishment of benches, there are rules which state that, “The Chief Justice may, from time to time, pass such orders as may be considered necessary for the efficient working of the Benches.”[13] There is also a remedy provided in the Constitution to raise any grievance before the Supreme Judicial Council against a judge for misconduct.[14] The procedure for hearing complaints has also been prescribed, thus, it ought to be followed.[15]

Whether one is a member of the Bar or Bench, one must stand with what is right, in a cordial manner and without fear. Most of the issues that arise between the Bar and the Bench are due to lack of tolerance on both sides. The following has been observed in a case:

“…Without cordial relation between both these organs (i.e. Bar and the Bench) peaceful atmosphere cannot be created, therefore, this court is inclined to direct the respondent Advocate to further improve his behaviour towards the learned Presiding Officers of the court of law so that mutual harmony may prevail and nobody should suffer. Before parting with this judgment, I may observe here that, at the same time, the learned Presiding Officers may follow the instructions issued from time to time by the Superior Courts of the country qua their attitude towards the learned Advocates and the litigant public to avoid any untoward incident in future. It would create confidence of the people in both these important organs of the judiciary. At the last I must observe here that it was only due to lack of “tolerance” on the part of both the sides that, firstly, the matters cropped up into the form of resolutions by the learned Members of the Bar and, secondly, led to the filing of the instant contempt of court proceedings which was a painful study for me.”[16]

Every person who becomes part of the Bench has once been part of the Bar. Judges are not imported from some other planet. If we do not treat them with respect, nobody will respect us. How can you expect others to fall in line when your own conduct is shady? Having served as captain of the cricket team at Sadiq Public School, I never expected anything from my team which I myself did not do. If I expected them to be at the ground at 4:00 pm, I used to get there by 3:45 pm. If you do not lead by example, chances are that your words will not carry weight because people are smart enough to compare your words with your actions.

If anyone commits a crime, we talk of exemplary punishments, however, if the same crime is committed by someone from within our own house, we immediately come forward to the rescue and present all sorts of defences. How many times have we seen advocates standing unbiased when their own colleague is an accused person? Unity for a misguided cause is a disservice to the Bar – diversity, tolerance and the struggle for rule of law is the key to Bar’s success. Confidence of the general public in our legal system cannot be restored unless we all stand for across-the-board accountability.

Just as advocates are not above the law, so aren’t the judges. How many times have we heard of Supreme Judicial Council removing sitting judges for misconduct along with disentitling them of all benefits? Judicial appointment is a subject which hardly comes under discussion.

“….Unless the Bar and Bench both perform their sacred duties with due care, diligence and devotion, the purpose of National Judicial Policy will not be achieved.”[17]

In order to develop a relationship of mutual respect between the Bar and Bench, efforts are required on both sides. There are times when we see judges losing temper in the courtroom and adopting harsh behaviour in breach of their code of conduct. Such incidents leave a bad taste.

“…Bench and Bar are two indispensable wheels of the chariot of administration of justice. Both are supplementary and complementary to the institutional system of adversarial hearing. Violent language, dictative propensities on the part of an Advocate and impatience during the course of hearing of a cause on the part of the Judge are alien to the system of administration of justice. The administration of justice, briefly speaking, is a sustentative methodology for settling the dispute between the parties in a peaceful manner and through impartial procedure by an independent judiciary. It substitutes the flagrant course of armed encounter and blood feud and use of the physical force by the parties for settling their disputes. The system is scintillating embellishment of civilized behaviour. These objectives are achieved through strong arid independent judiciary. The concept of weakness or imperious behaviour is not known to this system. The source of system lies upon humility and patience on the part of the judiciary.”[18]

This is not the time for both Bar and Bench to take sides. If we must be on any side, it must be that of the rule of law. If both Bar and Bench stand with the rule of law, they will always stand together.

———-

References:

[1] Syed Ali Zafar, Advocate Bahria Town v. Govt. of Punjab, 2016 SCMR 141, para 19
[2] Duty Of The Advocates To Rule Of Law
[3] Rule 159 of Pakistan Legal Practitioners & Bar Councils Rules, 1976
[4] The State v. Mansoor-Ur-Rehman Khan Afridi, PLD 2000 Lahore 90 [DB], para 12
[5] Shoaib Mehmood  v. Iftikhar-Ul-Haq,  PLD 2001 SC 1049, para 2
[6] Isthiaq Ahmed v. Hon’ble Competent Authority, 2016 SCMR 943, para 12
[7] Arshad Mehmood v. Commissioner/Delimitation Authority, PLD 2014 Lahore 221 (DB), para 22
[8] Rule 166 of Pakistan Legal Practitioners & Bar Councils Rules, 1976
[9] Ayaz Ahmed v. Shamim Akhter, 2013 MLD 1897 [SC (AJ&K)], para 11
[10] Rule162 of Pakistan Legal Practitioners & Bar Councils Rules, 1976
[11] Code of Conduct for Judges of the Supreme Court and the High Courts, 2009, Article II
[12] Martin Luther King, Jr
[13] Rule 11, Lahore High Court (Establishment of Benches) Rules, 1981.
[14] Article 209 of the Constitution of Pakistan
[15] The Supreme Judicial Council Procedure of Inquiry, 2005
[16] The State v. Ch. Shahid Hussain, Advocate, PLD 2007 Lahore 560, para 6
[17] Al-Waqar Corpn v. Rice Export Corpn., 2011 MLD 266 [Sindh]
[18] Imran Raza Khan, Advocate v. S.S.P., Lahore, 2001 MLD 1735 [Lahore] (FB), para 20

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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One Comment;

  1. Malik Muhammad Ali said:

    Dear khan, u have also missed to discuss the judiciary playing pivotal role in the election in one’s favour or against. The right method for elevation to bench is through test,interview and physiological examination by amending the constitution, art 175A and also of 209 for fixing the time to decide the reference against the judge and also proceedings must be open to the extent of the leaders of bar.

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