It was February last year when Islamabad High Court witnessed a dark day after it was stormed by frenzied lawyers vandalized the property, laying siege to court rooms and holding the Honorable Chief Justice of the IHC hostage for three hours in his chamber. Likewise in December 2019, a group of lawyers ransacked emergency ward of Pakistan Institute of Cardiology Lahore in their show-down with doctors resulting in damage to property and loss of life. No amount of condemnation will suffice to justify the rowdy behavior and gross misconduct of lawyers in the two incidents including several in the past.
Law is a noble profession and requires noble men full of knowledge and wisdom with utmost obedience to law and reverence for the judicial institution including other state institutions. The bar exists for the purpose of ensuring access to and delivery of justice and uphold rule of law and not take law into their own hands. In the civilized western democracies bar associations coalesce efforts and resources to promote activities for dissemination of legal knowledge; promote legal research; set standards for legal education; advance the science of jurisprudence; fund studies of practical problems grappling the society; to assist members of legal profession to develop and improve their legal services to their clients, training and continuous professional development, general welfare of lawyers and improve/upgrade status of the profession.
The bar associations throughout Pakistan exist and operate for the general welfare of the legal fraternity. A cursory look at the object clause avail on the website of the most politically active and professionally vibrant bar association in the country reveals that it shall provide ‘facilities’ to its members in the performance of their professional duties; preserve, promote and safeguard ‘interests’ of the members; maintain highest ‘professional standards’ of probity; to generate ‘funds’ for attainment of its objects; provide good quality and hygienic ‘foods and snacks’ to its members inter-alia to work in the direction of ‘independence of judiciary’ and uphold ‘rule of law’ and hold in high stead the ‘dignity’ of the Court.
If one deciphers the terms used in object/mission statement of bar associations, the term ‘facilities’ include provision of workplaces/chambers within the premises of katchery, improvement of state-of-the-art bar rooms and good quality hygienic foods/snacks and full-stop. The term ‘interest’ of lawyers implies avoid police arrest and if a lawyer has any grievance against an individual or the state institution fellow lawyers take to streets damage public property and flex power muscles in incidents mentioned hereinabove and like such incidents. The ‘highest professional standards’ our worthy lawyers are well known to general public who are often let-down by their counsels and needs no further elaboration here. The ‘Funds’ as defined under section 17 of the Legal Practitioners and Bar Councils Act 1973 (the ‘Act’) includes enrolment fees, subscriptions, grants by federal and provincial governments and donations. The larger chunk of funds received by bar associations comes in the form of annual grants disbursed by the government as mandated under section 57 of the Act. The bar associations do nothing to expand their sources of revenue except depend solely on hefty sum of tax-payer money funneled by the government ever year. Further upholding the cause of ‘independence of judiciary’ is not the mandate of the Bar rather than the Bench itself under the Constitution of Pakistan 1973. The lofty ideal of promoting ‘rule of law’ loses its value when lawyers take to streets and vandalize public property and ‘dignity’ of high court is trampled when its chief judge is held hostage in his chamber.
If scope of activities of our bar associations as sketched above is juxtaposed with the range professional activities of global bar associations, one would conclude that our lawyers community neither have the vision, nor the conceptual clarity about their legal structure/model and not even have sufficient financial viability and autonomy to undertake a whole panoply of activities to raise the standards of service to their clientele and to engage in intellectual pursuits to raise and upgrade the status of the profession and earn respect and credibility that this noble profession rightly deserves.
The apex law regulator i.e. Pakistan Bar Council (PBC) and respective provincial bar councils including Islamabad Bar Council are best equipped with the powers and functions entrusted to them under the Legal Practitioners and Bar Councils Act, 1973 and rules made thereunder. For example, section 13 mandates PBC to promote legal education and prescribe standards of such education; to hold conferences, seminars, moots, lectures and jurist conferences for dissemination of legal knowledge; provide free specialized services for the promotion and enforcement of human rights; provide free legal aid and safeguard the interests, rights and privileges of lawyers. Section 56 empowers PBC to make rules for conduct of bar elections, to prescribe courses of practical training and continuous professional development; to regulate law firms in the country and constitute separate funds for special purposes and section 9 and 10 of the Act describes similar powers and functions for provincial bar councils and allow certain statutory committee in addition to such other [professional] committees as the bar councils deem fit for attainment of their objects and performance of their functions. However, all these good objects loses their eminence and relevance when bar associations lack the requisite legal capacity or legal structure/model and financial autonomy to undertake the wide-ranging expensive activities.
Section 56 (n) of the Legal Practitioners and Bar Councils Act 1973 requires provincial bar councils including Islamabad bar council to enact rules for recognition, de-recognition and functioning of the bar associations. The Islamabad Legal Practitioners and Bar Council Rules 2017, under its Chapter VIII, provides mechanism for recognition of bar association in the capital. However, a mere recognition by accepting memorandum of association (object clause) does not empower bar associations to undertake a whole host of welfare and broad range of activities for the growth and development of the legal profession as mentioned in preceding paras of this article. Consequently, whatever meager funds available with bar associations come merely from memberships or annual grants provided by the ministry of law and justice. This begs the question what options do we have under the applicable laws of the country. The Companies Act 2017, a recently revamped corporate law legislation, provide helpful guide and offers an out-of-the-box solution.
In order to overcome the paucity of funds available with bar associations, Section 42 of the Companies Act 2017 and Associations with Charitable and Not-for-Profit Objects Regulations 2018 provide a new dimension towards restructuring bar associations enabling them to unlock a vast pool of financial resources that may become available to them and also making member lawyers abide by and up-hold rule of law and not run-over it.
Under section 42 of the Companies Act 2017, a not-for-profit association may be incorporated as a public company limited by guarantee without share capital for promoting [legal] education, [legal] research, capacity building and training, promote activities for dissemination of legal knowledge, learning and general welfare of the lawyers. It further provides that the entity incorporated under this enactment may avail all privileges available to a limited company which includes raising funds from private stakeholders including wealthy corporate law firms and pool in their funds; solicit/accept donations, grants, gifts, cash or in kind contributions from lawful sources; borrow or raise money with or without security; to invest a certain prescribed sum from surplus profits of the organization into owing certain assets/securities/commodities; to create endowment funds and to enter into contracts/agreements with organizations for the promotion of its objects. All it cannot do is to engage in commercial, trading or political activity and cannot engage in activities which are repugnant to interest, security and sovereignty of the country. It is interesting to note that his section further requires members of the association not to indulge in anything against law or public order. This may also act as deterrent for lawyers to taking law in their own hands.
Another advantage is constant vigilance by the corporate watchdog i.e. the Securities and Exchange Commission of Pakistan (SECP) to whom annual returns are required to be filed by section 42 NPO (not-for-profit) organization and its annual audit will be conducted in accordance with international best practices and norms. Further, the Income Tax Ordinance 2001, under which such NPO has to get prior approval in terms section 36 (2) of the said Ordinance, offers one hundred percentage tax credit (section 100 C of the Ordinance) on income from donations; voluntary contributions and subscription, income from investment in securities; grants received from the federal government.
This model will alleviate the financial concerns of the bar associations and armed with this model they can engage in positive development of the profession, engage in continuous professional development of the lawyers community especially the young lawyers and upgrade status and respect of the profession with a view to gaining the due credibility and trust they cherish and desire in the society.