No More Strikes, Please!
When terrorists struck at a local court in Charsadda on March 7, 2016, and killed more than a dozen innocent people, right inside the court premises, court-going lawyers all over Pakistan felt not only sad but personally insecure. Back in 2014, we saw something similar happen in the heart of Islamabad’s district courts complex. So we know what it feels like. While it is a sad situation, the question is: what can private citizens do about something like terrorism? I suppose only the state can stop it.
Quite naturally, the incident received condemnation from all over the country. In Islamabad’s legal community, however, the incident triggered a heated debate about the lawyers’ strikes and the legal status of this practice. Unlike terrorist strikes, the issue of lawyers’ strikes is something on which the informed opinion of citizens and young lawyers can actually make a difference. In fact, it makes all the difference.
Since this debate has far-reaching implications for the court system all over the country, let me recap it for the for the benefit of the wider reading public.
First, a quick background about the locus of the discussion. The discussion took place on a WhatsApp forum called “Law Talks”, hosted by two young and ambitious Islamabad-based High Court lawyers. On this forum, more than two hundred and fifty of the city’s practicing lawyers regularly discuss legal and socio-legal issues. Immediately after the incident, the administrator of the group asked the newly-elected President of the Islamabad High Court Bar Association: “Will the lawyers call a strike tomorrow against the brutal attack?”
Past experience had given us ample cause to expect that the answer would be “Yes”. For more than half a decade, I have personally witnessed justice being defeated in this country’s court system by its worst enemy: delay. In an op-ed I wrote recently, I pointed out that, contrary to popular opinion, shortage of judges is not the only cause behind the enormous delays encountered by litigants in our court system[1]. It’s probably not even the most significant cause. Delay is the product of a perverse legal culture which has taken hold of our community. The practice of frequent “lawyers’ strikes” is an integral part of this culture. The figures are astounding. In the year 2014, my research concluded that the Islamabad District Bar Association had called for strike on more than 50 days of the year[2]. In such conditions, a common law system such as ours, where judges rely heavily upon lawyers, simply cannot function.
Before proceeding further, let me clarify that I do not intend to vilify the bar leaders who frequently call for strikes. They, like other actors in the game, act in response to the larger institutional environment of our judicial system. The sociology of the lawyers’ strikes is complex and understudied. We need to use an evidence-based method for answering the basic question: who wins and who loses from lawyers’ strikes. But that discussion is for another day. Here, let us come back to the Whatsapp discussion.
The thing is that after the Charsadda terrorist incident, when everyone was anticipating a call for strike – for one full court day, possibly 3 days, even a whole week – the newly elected President gave us a huge surprise: “No strike. Please pray for the deceased and condemn the terrorist”, he announced on the WhatsApp group.
Young lawyers flocked in support of the bar leader’s unexpected decision. A senior government lawyer also wrote in support: “Condemnation of Charsadda event and solidarity and dua for the affectees is in order. Strike is not… Decision of the IHCBA … will help curb the unhealthy trend of frequently calling strikes”. Taking a cue from the changing winds, even an old time bar leader, who in his tenure had been quite comfortable with exploiting the politics of strikes, added: “Strikes are not the solution. Just pray for them collectively during the intervals in court day”. For a while, it seemed that both young lawyers and senior bar leaders had reached a consensus that the era of strikes should be behind us.
One minute later, these hopes were dashed.
“As per decision of Pakistan Bar Council, lawyers of Islamabad will also observe a strike tomorrow,” the President then announced.
So, this time around, it wasn’t the angry, young, briefless lawyers of the district Bar Associations pushing for strikes. It was the venerable Pakistan Bar Council itself, a body comprising exclusively of senior Supreme Court lawyers, who were indulging in opportunistic politics. The Notification issued by the PBC that day reads as follows[3]:
“Dr. Muhammad Farogh Naseem, Vice-Chairman and Mr. Abdul Fayaz, Chairman, Executive Committee, Pakistan Bar Council have strongly condemned the terrorists attack in Courts of Shabqadar, Charsadda, KP in which more than 13 innocent persons including two clerks of lawyers and police officials, have been martyred whereas two lawyers being in critical condition, are in the ICU of a local hospital besides many others seriously injured. For condemnation of this tragic incident they have appealed the lawyers to observe country wide strike tomorrow, i.e. Tuesday, the 8th March, 2016. The lawyers, as such, while observing strike will hold protest meetings in their bar rooms and wear black bands to condemn the tragic incident.
Deploring the utter failure of the federal and KP governments in maintaining law and order situation in the province and to provide security and safety to the people, they have demanded the government to arrest the culprits and bring them to book at the earliest.
While expressing solidarity with bereaved families, on behalf of the legal fraternity, they have emphasized the need of evolving foolproof practical strategy and plan for improving the law and order situation in and around courts throughout Pakistan ensuring safety and security of the judges, lawyers and litigants.
– SECRETARY”
One of the lawyers on the group, who himself practices in the Supreme Court, immediately caught on the irony of the situation. He asked, “[IF SC lawyers sitting in the PBC have called for a strike] why is there no strike in the Supreme Court?”
The administrator of the group asked: “Come to think of it, what is the message being delivered and to whom, by not appearing before courts and naming it a strike?”
“What do we achieve by going on strike? Non-appearing fetches what?”, asked another member. He also suggested an alternative: “Peaceful protest in the modern world is symbolic. By wearing a band or a pin. Shows condemnation, awareness and moral support. That is how protests are recorded as support to a certain cause”.
Soon however, the group moved on from simple condemnation of lawyers’ strikes to an examination of its legal status. That is where the discussion got truly fascinating.
I took the position that the PBC’s notification cited above is an illegal notification because “neither the Pakistan Bar Council (PBC), nor any other bar council, possesses the statutory power to enforce a strike. A decision made without statutory foundations doesn’t bind us. Nor the Islamabad High Court Bar Association (IHCBA). If anything, IHCBA can register its protest against the PBC’s causal approach towards strikes.”
The Bar President replied to this objection, saying: “As per law, we are bound to follow the decisions of the PBC”. He went on to reassure the group members that while his hands were presently tied by a PBC notification, he personally remained opposed to strikes.
The senior government lawyer who had opposed the strike came to my aid. He subtly challenged the President’s claim about the legal status of strikes by posing two questions:
“1. What is the legal provision binding the IHCBA to follow the PBC’s decision to observe a strike?
2. What is the legal provision empowering the PBC to call a strike of lawyers in the first place?”
Over the next couple of hours, dozens of lawyers of all orientations pitched in their responses to these two questions. Most shared my view that neither the Legal Practitioners and Bar Councils Act, 1973 nor any other law empowers the PBC to issue a strike call, i.e. ask lawyers to boycott courts. And even if one of the councils calls for a strike, the associations are not legally bound by such a decision. Here’s is the crux of my arguments.
The bar councils are statutory bodies and they can only perform such functions as are conferred upon them by the Legal Practitioners Act. The functions of the PBC are expressly listed down in Section 13 of the Legal Practitioners Act. As the apex regulator of the legal profession at the national level, its functions relate mostly to matters of enrolment, disbarring and setting standards of legal education. Calling for strikes in not mentioned anywhere. The only one amongst the PBC’s enumerated functions which could possibly be stretched in support of calling lawyers’ strikes is this: “safeguard[ing] the rights, privileges and interests of advocates on its rolls including initiation of measures for fair and inexpensive dispensation of justice by subordinate courts and tribunals”. The PBC might try and claim that boycotting the courts is, on occasion, necessary for effectively bargaining with the courts and thereby safeguarding the interests of advocates vis-à-vis the judge. So, if, for instance, a member of the judiciary unnecessarily insults a member of the bar, the relevant bar council may instruct all lawyers enrolled with it to boycott that particular court, and such tactics might be helpful in safeguarding the interests of the lawyers’ community at large.
Regardless of whether you agree with this interpretation of Section 9, it is largely irrelevant. In practice (which I have documented through research), the stated object of most lawyers’ strikes is not the redressal of grievances against the judiciary. The stated object of most strikes is to seek redress against marauding terrorists, delinquent policemen, inefficient governments, diligent taxmen, inflation, etc. It is hard to understand how boycotting the courts can help lawyers deal with such problems.
The functions of the provincial bar councils are also listed down in Section 9 of the Act and are almost identical to the PBC’s functions; there too one finds no mention of strikes. In 1982, clause (i) was added to Section 9 which states: “and to comply with directions given to it by the Pakistan Bar Council.” But, as lawyers are fully aware, this duty of compliance extends only to “directions” issued legally. No law could possibly require the provincial bar councils to quietly comply with a direction issued by the PBC without lawful authority and without jurisdiction.
During the discussion, it was pointed out that the very concept of “strikes” is an opportunist borrowing from the law of industrial relations. The power of to call for enforceable strikes (and employ similar collective bargaining tactics such as go-slow, etc.) was an extraordinary power that 20th century legal codes conferred upon the elected leaders of labour unions, in view of certain social realities. Semi-skilled manual workers in factories comprised a uniquely dis-empowered and voiceless segment of our society. Giving their elected leaders the power to call enforceable strikes was necessary to help them collectively negotiate with the factory owners for earning a fair wage and getting decent working conditions. The legal regime governing labour unions, presently the Industrial Relations Act, 2012, expressly vests this right in labour leaders.
While some lawyers in Pakistan are actually quite poor, as a group, lawyers are placed on the opposite end of the spectrum of social empowerment. They comprise one of the most powerful and vocal occupational groups in our society and rank second only to members of the armed forces. Lawyers sit in large numbers in Parliament, the Federal and Provincial Cabinets, local governments, the bureaucracy, media and, of course, have an exclusive hold on the superior courts. Every single corporate concern in the country is required by law to have at least one lawyer advising it and many have even placed lawyers on their boards. To visualize this phenomenon, consider this: at present, the head of the executive (PM), the judiciary (CJP) and the legislature (Chairman Senate) are all persons whose primary education was a law degree and two of them earned their living through the practice of law, up until they became state officials.
This being the case, how can the bar councils possibly claim that the only way they can secure the interest of lawyers is by boycotting the courts? How can a man like Farogh Naseem justify resorting to strikes for getting his message across when he stands almost daily on the floor of the Senate of Pakistan, regularly addresses the Supreme Court of Pakistan and appears on prime time tv talk shows.
*****
Actually, if the Legal Practitioners Act has anything at all to say about lawyers’ strikes, it’s something negative. Under the Act, lawyers are, first and foremost, officers of the courts and their primary obligation is to assist the courts in administering inexpensive and expeditious justice. The Legal Practitioners and Bar Councils Rules, 1976 framed under the Act, contain a full chapter on a lawyer’s “duty towards the court”, including the following Rule 166:
It is the duty of advocates to appear in court when a matter is called and if it is not possible to make satisfactory alternative arrangement.
Rule 166 implies that in case a lawyer decides to register his protest by not appearing in a particular court on a particular day, it would be his duty to find some other lawyer who can appear on his behalf and pursue his client’s brief in a satisfactory manner.
*****
Throughout the Whatsapp discussion that day, the only text that any lawyer could cite in support of the practice of lawyers’ strike is Rule 175-E of Legal Practitioners and Bar Councils Rules, 1976. It says:
“No Bar Association or group of bar associations, any bar body or forum shall be authorised to give strike or protest call to the members of legal fraternity at national level without prior approval of the Pakistan Bar Council”.
The argument runs like this: Since Rule 175-E has vested the PBC with the power to “approve” a certain category of strikes called by other lawyer bodies, it has also impliedly given the PBC the power to issue strikes calls of its own. Anyone familiar with the general principles of our administrative law will tell you that no, this is not how it works. Executive bodies like the Bar Council cannot claim plenary powers; they enjoy only such powers as are expressly vested in them by law. Rule 175-E does not expressly vest the PBC with any power to call strikes and that is the end of the story.
In addition, let me point out that Rule 175-E itself stands on very weak footing because it has no basis in the parent statute – the Legal Practitioners Act. The PBC cannot make a rule regarding strikes unless some section of the statute allows it to make such rules. As we have noted above, it doesn’t. Rule 175-E is only a somewhat thoughtless addition, grafted on the existing rules in 2008 amidst the heat of the “lawyers’ movement”. Whatever the political exigencies of the moment might have been, it should not be given too much weightage.
For many years now, some members of our bar have held the view that lawyers’ strikes reflect bad politics. But in the Whatsapp discussion, the lawyers of Islamabad stumbled upon something equally significant. There is a strong case to be made that lawyers’ strikes are illegal. Statutory regulators of the profession, i.e. the bar councils, cannot issue directions regarding strikes because the law has simply not vested this power in them. And bar associations cannot call upon lawyers to boycott courts because it amounts to encouraging them to violate Rule 166 of Legal Practitioners and Bar Councils Rules, 1975, made by the Pakistan Bar Council itself.
*****
Since this discussion took place on March 7, my colleagues and I have been researching comparative law on the issue of the legality of lawyers’ strikes. We have found dozens of reported cases of the superior courts of the Republic of India dealing with this issue. The leading case is Ex-Capt. Harish Uppal v Union of India (AIR 2003 SC 739) where a number of public interest petitioners urged the Supreme Court of India to take notice of the practice of lawyers’ strikes and declare it as illegal. A three-member bench of the Court was constituted, notices were issued to all the bar councils and all sides were heard at length.
The court in the Harish Uppal case reviewed a large body of case law in which the superior courts had already pointed out the lack of legal justification behind the practice of lawyers’ strikes. It cited, amongst other cases, the following: John Koshy & Ors. vs. Dr. Tarakeshwar Prasad Shaw ((1998) 8 SCC 624), Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. ((1999) 1 SCC 37), Koluttumottil Razak vs. State of Kerala reported ((2000) 4 SCC 465) and B. L. Wadehra vs. State (NCT of Delhi) & Ors. (AIR (2000) Delhi 266). A paragraph form the Delhi High Court ruling may be relevant here:
“[L]awyers have no right to strike i.e. to abstain from appearing in court in cases in which they hold vakalat for the parties… There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case… Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted… Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial”.
Ultimately, in Harish Uppal’s case, the Supreme Court of India held as follows:
“…[L]awyers 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”.
To make this blanket ban more reasonable, the court did carve out a small exception:
“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”.
Since the Harish Uppal case, the issue of lawyers’ strikes has remained hotly debated in India. The views of some authors are cited in the bibliography underneath and are worth reading.
The take away from this piece is simple: if you are a young lawyer irked by the practice of lawyers’ strikes and the suffering it needlessly inflicts upon litigants, please be assured that you are not alone. Many lawyers, especially the younger ones, feel that way. In fact, many amongst the bar leaders are also beginning to realize the gravity of the issue. Thankfully, a debate has been stirred in the legal community about this practice. Soon, this debate might even find its way into the courts, as it has done in the Republic of India, and there in the courtroom you will discover that the law is actually on your side.
—–
Bibliography and References:
http://ijesls.com/Strike%20By%20Lawyers%20And%20Professional%20Misconduct-Damini%20Mehta.pdf
http://legalperspectives.blogspot.com/2011/01/lawyers-right-to-strike-law-revisited.html
http://www.lawgazette.co.uk/analysis/lawyers-right-to-strike/65705.fullarticle
[1] http://www.thenews.com.pk/print/96974-No-more-judges-please
[2] https://drive.google.com/file/d/0B1fVFudV49EZa3VORUUzaHJ1RXc/view?usp=sharing
[3] http://pakistanbarcouncil.org/march-07-2016/
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.
