Access To Justice Hampered By Strikes

Access To Justice Hampered By Strikes

“… The rule of law depends upon public confidence and public acceptance of the judicial system; therefore, anything which tends to undermine that confidence in the judicial system must be strongly discountenanced.”
– Muhammad Mansha v. The State, PLD 1996 SC 229,
per Fazal Karim J.

The rule of law is the bedrock of any civilised society. It is the supremacy of the regular as opposed to arbitrary power. Access to justice has been recognised by our courts as “an integral part of the rule of law in constitutional democracies and a hallmark of civilized society” (Ishtiaq Ahmed v. Hon’ble Competent Authority, 2016 SCMR 943, para 12).

It is a well recognized inviolable right enshrined in Article 9 of the Constitution” (Sh. Riaz-ul-Haq v. FoP, PLD 2013 SC 501).

It has also been defined by the Full Bench in Arshad Mehmood v. Commissioner/Delimitation Authority, PLD 2014 Lahore 221, para 21 on the basis that,

No one must be hindered either by law, administrative procedures or material resources from addressing himself or herself to a Court or Tribunal for the purpose of vindicating his or her rights.”

The Full Bench then went on to say in para 22 that,

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.”

Even in a country with an unwritten Constitution like the United Kingdom, Lord Diplock observed the following in the case of Bremen Vulkan Schiffban and Maschinenfabrik v. South India Shipping Corp, 1981 AC 909:

“Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.”

Likewise, Steyn L.J. in R. v. Secretary of State for Home Dept., ex parte Leech, 1993 (4) All ER 539 held that,

“It is a principle of our law that every citizen has a right of unimpeded access to a court.”

In Raymond v. Honey 1983 AC 1, 1982 (1) All ER 756, Lord Wilberforce described it as,

“…a ‘basic right’. Even in our unwritten Constitution, it ranks as a constitutional right.” 

It is an undisputed fact that litigation takes time. Its inability to meet the expectations of litigants to get speedy justice has adversely affected the confidence of the public in litigation, compelling recourse to alternative dispute resolution (ADR) mechanisms, where possible. Whenever delayed justice comes under discussion, the most convenient excuse and obvious mistake made by the general public, politicians and even members of the Bar is to hold the judiciary blameworthy for not delivering speedy justice. The Bench can do nothing without the support of the Bar.

“We have emphasised time and again that backlog and delays in quick dispensation of justice is a serious threat to the existing judicial system of Pakistan. The Judges cannot perform their duty without support and cooperation of the Bar…. A 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 that: “Justice delayed is justice denied” and “Justice rushed is justice crushed”.”
- Shoaib Mehmood  v. Iftikhar-Ul-Haq,  PLD 2001 SC 1049, para 2. 

The support of the Bar is a sin qua non for the judicial organ to efficiently function because:

“…the Bar and Bench are two wheels of chariot involved in the dispensation of justice. Both are supplementary and complementary to each other.”
- The State v. Mansoor-Ur-Rehman Khan Afridi, PLD 2000 Lahore 90 [DB], para 12.

The Advocates who appear in courts are also under a duty to preserve the dignity of the judiciary.

“Learned Advocates and the legal fraternity in general, is in fact, the custodian and preserver of the dignity, independence and sanctity of this judicial institution. It must be remembered that their own respect and reverence is attached with the sanctity and reverence of this judicial institution. If a fraction of the legal fraternity is out to disfigure  the face of this sacred institution or to annihilate its image of impartiality, sacredness, sanctity and independence, none would be there to save them and this institution.”
- FoP v. Mian Nawaz Sharif, PLD 2009 SC 284, para 33.

On a frequent basis, we hear about announcements regarding lawyers’ strikes, sometimes on serious issues, sometimes on trivial ones and sometimes on issues having no legal foundation. For whatever reasons these strikes are called, there is nothing noble about a strike no matter how noble the cause is because the end-result is the obstruction of access to and delivery of justice, when the duty of the Bar is, in essence, to further the access to and delivery of justice.

“…the Bar exists for the purpose of ensuring access to and delivery of justice. The Bar is also meant to stand up for upholding the rule of law. But the Bar can discharge these functions only if its members abide by their code of conduct and are subjected, like everyone else, to the rule of law.”
- Salamat Ali v. State, 2014 SCMR 747, para 3.

The protests in a democratic society can be better registered democratically without stultifying the adjudicatory process through boycotting courts, which undermines the independence of the judiciary and its ability to function without any pressure and control. Our Founder, Quaid-e-Azam Muhammad Ali Jinnah also advocated the following:

“I insist you to strive. Work, work and only work for satisfaction with patience, humbleness and serve thy nation.”
(All India Muslim Students Conference Jalandhur, 15 Nov 1952).

He did not encourage us to stop performing the important duty of advocacy (complimentary and supplementary to the dispensation of justice) through strikes, strikes and more strikes. These boycotts unduly stall the machinery of justice and hamper the discharge of constitutional and statutory duties by the courts.

The question regarding the constitutionality of the strikes/boycotting courts was a question squarely dealt with by the Indian Supreme Court in Ex Captain Harish case, (2003) 2 SCC 45, para 35, where it was held that:

“… lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not 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 Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that 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. It is held that 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. It is being clarified that 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 Advocate 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. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him.”

As members of the Bar, we shall conduct ourselves in a manner which bolsters confidence of the general public in the legal profession. When members of the Bar go on strike and representatives discourage the advocates to appear in court, the system suffers because performance of the noble duty of administering justice is impeded. The Honourable Chief Justice Syed Mansoor Ali Shah (the then Justice) in Ch. Imran Raza case, PLD 2016 Lahore 497, para 4 has also stressed upon the matter in the following words:

“The strength of the Bar is not in its number but in its ability to stand up for justice and fairplay on the strength of reason, law and equity. The mark of a good lawyer is his unwavering boldness and unfaltering courage to stand and fight for what is right. Law is a noble profession and requires noble men – full of knowledge and respect for the law and judicial institution.”

We cannot import a new system from abroad, we have to make the present system workable. It is possible if we derive assistance from the following:

“O you who believe!  Stand out firmly for justice…”
– Sura An-Nisa, Ch. 4, verse 135 of the Holy Quran.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation 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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