Plight Of Fresh Law Graduates

graduation

Plight Of Fresh Law Graduates

On the first day in law college during orientation, institutions traditionally invite senior lawyers to deliver motivational speeches to young students and enlighten them with their experiences. The speakers, upon the desire of the concerned institutes, highlight perks and privileges of the legal profession. However, very few talk about different challenges of the profession, especially for young entrants.

Through this piece I wish to point out the challenges that the upcoming legal generation could face. There is no profession around the world where educated people are recruited without paying a single penny. During the course of studies, it is always expected that one will at least earn enough to manage everyday expenses.

However, in the profession of law there is limited scope for young entrants to learn as they are mostly assigned the tasks of seeking adjournments and making attendance on behalf of their seniors. For this reason and for the lack of proper policies in place, the profession is now in its worst position. The term wuklagardi is also prevalent for various reasons.

In light of the above, I took the initiative of filing a petition before the honorable Lahore High Court in order to safeguard the constitutional, statutory and fundamental rights of new entrants/young lawyers enrolled as advocates in the Punjab Bar Council.

My contentions in the said petitions were the following:

  1. Young doctors, accountants and other professionals after graduating from their respective colleges/universities are entitled to elicit paid house jobs and/or internships from relevant institutions so that they are able to polish their professional skills. But on the other hand, it has been witnessed that all over Pakistan, young lawyers after graduating with a law degree from their respective law colleges/universities are neither getting any stipend nor salary due to the non-existence of directives/guidelines or mechanisms designed by Pakistan Bar Council (claimed as the apex professional body).
  1. Apart from that, the Legal Practitioner and Bar Council Act 1973 and Pakistan Legal and Practitioner Bar Council Rules 1976 describe the provisions conferring that Pakistan Bar Council has power to enact a rule/mechanism as mentioned in The Act and Rules. They are reproduced below:

Legal and Practitioners and Bar Council Act, 1976


55. Power of Pakistan Bar Council to make rules;

The Pakistan bar council may, by notification in the official gazette, make rules to provide for:

(i) Matters pertaining to management, administration, utilization and investment of the fund of the Pakistan Bar Council;

(j) The constitution of separate funds for special purposes by the Pakistan bar council


13. Functions of the Pakistan Bar Council;

Subject to the provisions of this Act and The Rules made thereunder, the functions of Pakistan Bar Council shall be. —

(f) To safeguard the rights, privileges and interests of advocates including initiation of measures for fair and inexpensive dispensation of justice by the subordinates courts and tribunal;

(g) To promote and suggest law reforms;

(m) To perform all other functions conferred on it by or under this Act;

(n) To do all other things necessary for discharging the aforesaid functions.


Likewise, Pakistan Legal Practitioners and bar Council Rules, 1976:


Chapter XI- Finance

128(1). The chairman shall be responsible for realizing all moneys due to the Bar council and for the management, administration, and utilization of the funds of the council.

129(d). The Bar council may constitute a separate fund for any special purpose which shall be administered and regulated in such manner as the bar council may specify.

But still the Pakistan Bar Council has failed to formulate the policy/mechanism on standardization of stipend/salary of law graduates in the Legal Profession.

  1. It is also pertinent to mention here that the Pakistan Bar Council has already formulated many other rules relating to the employees’ pension, service, free legal aid, etc. but still fails to redress the woes of young lawyers/new entrants. This deprivation of their fundamental rights creates frustration among young lawyers. As a result many of them are forced to leave the profession.

I also put forth the following arguments before the honourable Lahore High Court in order to support my contentions:

  1. According to Part-II, Fourth Schedule, Constitution of Pakistan 1973, under the entries of the federal legislative list, entry number 11 lists legal, medical and other professions as federal subjects. meaning that the polices, rules and statutes with regard to the legal, medical and other professions would be formulated by the federal legislature.
  1. Comparatively, the Rules of Pakistan Medical & Dental Council 2016 framed under Pakistan Medical Dental Council Ordinance 1962 state that all public and private institutions shall be responsible to provide a paid house job to their graduates. Unfortunately, in the legal profession, there is neither any such policy nor any rules framed under the Act or the Rules which could address or manifest any stipend/salary for young law graduates.

Similar to the Pakistan Medical and Dental Council (PMDC), the Institute of Chartered Accountant of Pakistan (ICAP) through its Council of Institutes has also formed a mechanism to support its trainees/interns financially by way of formulating Training Regulations and Guidelines. The relevant part is reproduced below:

6. Contract, Training Period and Stipend

(4) Stipend

“The stipend shall be paid through banking channels and shall not be less than the minimum stipend specified by the council.”

In light of this, discriminatory treatment is being meted out to young law graduates, therefore, the Act and Rules should be declared unconstitutional and prejudicial to their fundamental rights.

  1. According to a case cited as PLD 2004 Lah 376:

The fundamental rights are primordial in nature, which are imperative and essential for the very existence, development, progress, prosperity of the citizen of the State, and are necessary for the growth and expression of their personalities. These are basic in character because, they enable a citizen to chalk out his own life in the manner he likes the best; these are the rights which a citizen possesses as a creature of the nature, and are natural in form. However, for the precise identification, extent, guarantee and the enjoyment of such rights in an ordered democratic society, such as ours; the whole nation entered into a contract and by a unanimous resolution endorsed the right in the Constitution of 1973; on account of the above, the political powers of the State stood security for the sanctity and inviolability of these rights; enabling the citizen to successfully resist the political authority in the State and assert his rights in the case of breach. The provisions of Article 4 of the Constitution have made these rights inviolable and inalienable by conferring a right upon every individual to be dealt with in accordance with law and by specifically providing that “No person shall be prevented from or be hindered in doing that which is not prohibited by law.”


“It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of these rights. And in case of any violation, and encroachment thereof, the judiciary specially the superior courts of the country by means of Article 199(2) and 184(4), have been made responsible to provide remedy to those citizens, whose rights have been encroached by the State, or its functionaries.”

Therefore the Act and the Rules should be declared unconstitutional and void ab initio because they are subject to discriminatory interpretation.

Simultaneously, Part-III, Rule 21 of the Pakistan Medical and Dental Council Rules states the following:

All Public & Private institutions shall be responsible to provide a paid house job to their graduates and any graduate of any other institution doing house job or internship in the institution. The amount of stipend or salary by whatever name called paid to house officer or internee in private sector hospitals shall not be less than the highest amount paid in any public sector hospital of that province. Honorary house jobs in special circumstances shall also be allowed in approved public sector hospitals if an applicant and a hospital so desires but the institution shall not allowed house job beyond the slots allocated by the council for house job in relevant institution.

But the Act, viz-a-viz Rules, lacks any such policy which talks about the betterment of the legal profession. Similarly, the Council of Common Interests (CCI) plays no role in the formation of regulations.

The honourable Supreme Court of Pakistan in its reported judgment cited as PLD 2007 SC 394 also notably states the following:

“Pakistan Bar Council, the petitioner, is the apex professional elected body of lawyers established under the Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as “Act”). One of its primary functions under this Act is “to promote legal education and prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils”. It has been empowered to make rules to carry out its functions which include rules to provide for “the standards of legal education to be observed by the universities in Pakistan and the inspection of universities for the purpose.”

This shows that the Pakistan Bar Council is a regulatory body and has power to make regulations regarding the prescribed minimum standard of stipend in this context.

In the same judgment, a committee was constituted to propose reforms in the legal profession, unfortunately, there was no importance given to stipend or salary.

Even otherwise, the Rules should be declared unconstitutional and ultra vires because such rules have been framed without the consultation of Cabinet. A case cited as PLD 2016 SC 808  Mustadfa Ampex Vs. Federation of Pakistan states the following:

“Any Act, or statutory instrument (e.g. the Telecommunication (Re-Organization) Act, 1996) purporting to describe any entity or organization other than the Cabinet as the Federal Government is ultra vires and a nullity.”

It is already established jurisprudence that people in similar situations should be treated in a similar manner. It is also stated that,

“If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violation of Articles 8 and 25.”

Hence, the right to life includes every aspect of the quality of living which would include supreme adjectives like the pursuit of happiness (reliance is placed upon PLD 1993 SC 341).

Stipend is being given to medical practitioners, accountants and other professionals for rendering services in house-jobs/internships and while legal practitioners are deprived of a stipend/salary. This is discrimination and a blatant violation of Articles 3, 4, 14, 18, 25, 37 and 38 of the Constitution of Pakistan 1973.

Such a discriminatory practice is neither a ‘reasonable classification’ nor does it conform to ‘intelligible differentia principles’ (reliance is placed upon PLD 1997 SC 582: Ilahi Cotton Mills vs. Federation of Pakistan).

The superior courts have already laid down dictum that equal work means equal pay. Similarly, in foreign jurisdictions like the USA and UK, etc. law practice is considered to be the noblest of professions and there exist policies and mechanisms to accommodate law graduates/professionals by way of issuing guidelines/directives from time to time.

One can also have a look at the case cited as PLD 1993 SC 341 where the following was held:

“Application of Art. 25 ‑‑‑ Principles ‑‑‑ any law made or action taken in violation of principles contained in Art. 25 is liable to be struck down.


Following are the principles for application of equality clause of the Constitution‑‑‑ 


(i) That, equal protection of law dogs not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike;

(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) That no standard of universal application to test reasonableness of a classification , can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) That in order to make a classification reasonable it should be based‑‑‑

(viii) On an intelligible differentia which distinguished persons or things that are grouped together from been left out;

That the differentia must have rational nexus to the object sought to be achieved by such classification.

Where the statutory functionary acts mala fide or in a partial, unjust oppressive or discriminatory manner, his/her action can be challenged for violation of equality clause of the Constitution.”

It is also a lamentable fact that the Council of Common Interests has not paid heed to this issue of public importance. Under Articles 153 and 154 of the Constitution of Pakistan 1973, the Council of Common Interests is supposed to look after the welfare of young law graduates by formulating the policy on determination of stipend/salary.

According to Article 154 of Constitution of Pakistan:

“The council shall formulate and regulate policies in relation to matters in part II of the Federal Legislative list and shall exercise supervision and control over related institutions.”

Since legal, medical and other professions are included in Part II, IV Schedule of the Constitution, the Council of Common Interests should be directed to formulate policy on the stipend/salary and remuneration of law graduates doing internships or other legal work in law offices.

In the past, the honourable Lahore High Court has issued directions to Pakistan Bar Council to reform the legal profession.

In a judgment reported as PLJ 2016 Lhr 462, the Honourable Lahore High Court issued directions to Pakistan Bar Council to set aside the exemption being granted to foreign law graduate from appearing in Bar Council exams. The judgment held that people in similar situations should be treated similarly.

Furthermore, this point of view has also been endorsed by the Kerala High Court with the ruling that there should be some stipend for young entrants.

During the course of proceedings, I emphasized on the violation of Article 3 and Article 9 of the Constitution of Pakistan. The learned judge, after hearing all my arguments, closed the file and said empowering these words:

“Good luck, gentleman.”

I did my part in trying to help the legal profession and I am hopeful that this cause gets taken up by other concerned stakeholders as well.

 

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

Muhammad Waseem A. Rana

The writer is a gold medalist in Law from the University of Punjab. He is currently practising law at Saad Rasool Law Associates.



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