Syed Qaiser Abbas Shirazi vs Pakistan Bar Council etc.

PLJ 2020 Lahore 607 [Rawalpindi Bench Rawalpindi] Present: ABID AZIZ SHEIKH, J.

Syed QAISER ABBAS SHIRAZI--Petitioner versus PAKISTAN BAR COUNCIL through Secretary, Islamabad and 2 others--Respondents W.P. No. 2843 of 2020, decided on 23.11.2020.

Constitution of Pakistan, 1973-- ----S. 199--Legal Practitioners & Bar Council Act, 1973, S. 55--Pakistan Legal Practitioners & Bar Councils Rules, 1974, Rr. 22(2)(b) & 25(3)--Transparent election--Amendment in rules-- Vires of amendment--Challenge to--Maintainability of--Rules are admittedly not made by Govt. or with the approval of Govt. rather same are made by Pakistan Bar Council under Section 55 of the Act--For the purpose of maintainability of this constitutional petition, the first question will be whether these rules are of statutory nature and secondly whether Pakistan Bar Council and Punjab Bar Council are performing functions in connection with the affairs of Federation, Provinces or Local Authorities and as such amenable to constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution)--Neither impugned rules are statutory nor Pakistan Bar Council and Punjab Bar Council are amenable to constitutional jurisdiction of this Court--Therefore, preliminary objection was sustained [Pp. 610 & 613] A & B

2020 SCMR 631.

M/s. Hassan Raza Pasha and Raja Saad Mazhar, Advocate for Petitioner. Mr. Nayyar Abbas Awan, Assistant Attorney General alongwith Gulzar Ahmad, Assistant Secretary, Pakistan Bar Council.

Mirza Asif Abbas, Assistant Advocate General, Punjab for State.

Date of hearing: 23.11.2020.

ORDER

Through this constitutional petition, the petitioner has challenged the vires of amendment made on 16.9.2020 in Rule 14 of Pakistan Legal Practitioner and Bar Council Rules, 1976 (Rules) and for issuing direction to the respondents to issue ballet paper to the voters/members in accordance with sub-Rule 2(b) of the Rule 22 of the rules.

2.Relevant facts are that Respondent No. 2 finalized and published the final list of contesting candidates for the election of members of Punjab Bar Council for 2021-2025 on 03.11.2020. The Advocate General, Punjab while exercising power of Returning Officer of ensuing election of Punjab Bar Council declared that polling will be held on 28.11.2020. The grievance of the petitioner is that previously ballet papers were used to be prepared in such an manner that a voter record his vote on the ballet paper by putting “cross” or “tick” against the

name of candidate for whom, he intended to vote. However, after making impugned amendments in Rule 14 of the rules, pattern of ballot paper has been designed in such a way, that serial number and name of candidates in blank column shall be put by voters instead of merely cross and tick. At the time of filing of this constitutional petition, the main contention of the petitioner was that though Rule 14 of the rules was amended, however, Rule 22(2)(b) and Rule 25(3) of the Rules were not amended, therefore, merely on the basis of guidelines by Pakistan Bar Council, the requirement of said rules could not be dispensed with. However, during pendency of this writ petition, Rule 22(2)(b) and Rule 25(3) was also amended by Pakistan Bar Council through notification dated 21.11.2020 apparently to make these rules inconformity with amendment in Rule 14 of the rules. Though the petitioner has not specifically challenged in this petition the said subsequent amendments in 22(2)(b) and 25(3) of the rules, however, he submits that as amendments were made during pendency of this writ petition, therefore, as per settled law even without making any necessary amendment in the writ petition, he can argue on the legality on these amended rules as well.

3.Learned counsel for the petitioner argued that amendment in Rule 14 of the rules is not bonafide but only to facilitate certain candidates. He submits that if said amendment will remain intact, there will be no secrecy of ballet. Further submits that replacing the process from “cross or tick” to insert name of candidate by voters will be time consuming and not practical. On the amended notification dated 21.11.2020, he submits that amendment in Rule 22(2)(b) and Rule 25(3) of the rules cannot be applied retrospectively as election schedule was announced on 05.9.2020. He further submits that amendments are not yet been confirmed in meeting of Pakistan Bar Council under rule 91 of the Rules, therefore, the same has no legal effect as yet. On the question of maintainability of writ petition, he submits that not only the Pakistan Bar Council and Punjab Bar Council (respondents) are statutory bodies but even the rules framed by them are under the provision of legal practitioner and Bar Council Act, 1973 (Act), therefore, the impugned rules being statutory, this constitutional petition is maintainable.

4.Learned Law Officers on the other hand raised preliminary objection to the maintainability of this writ petition on the ground that impugned rules are neither framed by the Government or with the approval of government but merely by Pakistan Bar Council under Section 55 of the Act, therefore, these rules does not have any statutory force. Further submits that Pakistan Bar Council or Punjab Bar Council do not fulfill the requirements of “functional test”, hence not amenable to the constitutional jurisdiction of this Court. They placed reliance on Mirza Muhammad Nazakat Baig vs. Federation of Pakistan etc (2020 SCMR 631) and Abdul Sattar Chughtai Malik vs. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170). On merits, they submit that to ensure transparent election, Rule 14 of the rules was amended on 16.9.2020, whereby the ballet papers were to be supplied by the Returning Officer in accordance with directions and guidelines issued by Pakistan Bar Council and to resolve any ambiguity and bring conformity in the rules, Rule 22(2)(b) and Rule 25(3) of the rules were also amended through notification dated 21.11.2020. Submit that requirement of rule 91 of the Rules is merely a formality which will be done in due course. He submits that elections

are yet to take place on 28.11.2020, therefore, these amendments are not being applied retrospectively. He adds that these amendments are within the competency of Pakistan Bar Council under Section 55 of the Act and same being procedural does not affect the election schedule in any manner.

5.Arguments heard. Before touching merits of the case, I would like to decide the threshold question of maintainability of this writ petition. Mainly the petitioner has challenged the vires of amendment made in Rule 14 in the rules and subsequent amendments made in Rule 22(2)(b) and Rule 25(3) of the rules. These rules are admittedly not made by government or with the approval of government rather same are made by Pakistan Bar Council under Section 55 of the Act. For the purpose of maintainability of this constitutional petition, the first question will be whether these rules are of statutory nature and secondly whether Pakistan Bar Council and Punjab Bar Council are performing functions in connection with the affairs of Federation, Provinces or Local Authorities and as such amenable to constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution).

6.The above legal questions have already been decided by Hon’ble Supreme Court in recent reported judgment Mirza Muhammad Nazakat Baig vs. Federation of Pakistan etc. (2020 SCMR 631). In the said case, the vires of rule 9 of the Supreme Court Bar Association Rules, 1989 (Rules of 1989), were challenged. The said Rule of 1989 were also framed by Pakistan Bar Council under Section 55 of the Act in same manner as impugned rules are framed. The Hon’ble Supreme Court in afore-noted judgment held that neither the Rules of 1989 were statutory nor the Pakistan Bar Council or Provincial Bar Councils fulfilled the requirement of functional test, hence not amenable to the jurisdiction of this Court under Article 199 of the Constitution. Relevant observation of Hon’ble Supreme Court are reproduced hereunder: “A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also inter alia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so,

neither the Respondent nor any of its constituents or committees can be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No. 2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution ............

The next question that needs to be addressed is whether the Supreme Court Bar Association of Pakistan Rules, 1989 are statutory in nature which is yet another reason that correctly prevailed with the learned Division Bench of the High Court in recording a finding that the constitutional jurisdiction cannot be invoked against the Supreme Court Bar Association. This question came up for hearing before a Division Bench of the Lahore High Court in the case of Abdul Sattar Chughtai Malik v. Pakistan Bar Council through Secretary and another PLD 2007 Lahore 170). The following excerpt from the said judgment elaborates correctly interprets the law on the subject and is reproduced below:- “8. The rules are not statutory in nature, therefore, any violation of the statutes, regulations or rules would not attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution. In this context reference can be made to the cakes of Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60), Khalid Hussain v. The Chancellor, (Governor of Punjab) and others (NLR 1995 CLJ 219), Muhammad Umar Malik v. The Muslim Commercial Bank through its President, Karachi and 2 others (1995 SCMR 453) and Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194).

10.The Parliament is the law-making authority. It passes the Acts and empowers the Government under the relevant Act to make Rules for carrying on the business. A statute is the formal “expression” in writing of the will of the legislative organ in a State. A “Statute’ is a declaration of the law, as it exists or as shall be from the time at which such statute is, to take effect. It is usually called an Act of the Legislature. It expresses the collective will of that body. A Statute is the highest constitutional formulation of law, the means by which supreme legislature, after the fullest deliberation expresses its final will.

11.“Statute law” is defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor expressing will of the nation as the case may be. So, the Act passed by the Parliament and the Ordinance issued by the nation would be called the “Statutory Law”.

12.The Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the

parent Act. It can do anything if within its scope. The Rules or the Bye-Laws made under the Statutes or Act cannot over ride the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the section. The Rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority, empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the Act make the Rules. A Rule Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed.

14.The Supreme Court Bar Association is a Body, the Organization of lawyers, who are entitled to practise in the Supreme Court of Pakistan it has not been constituted under any Act of the Parliament. It is a non-statutory body, therefore, conditions or rules framed by this body would also be non-statutory rules and having no legal backing. The writ petition under Article 199 of the Constitution against a body, organization not constituted under the law would not be competent.”

Learned counsel for the appellant was unable to persuade us to take a contrary view than the one taken by the Islamabad High Court in the impugned judgment, by the Lahore High Court in the afore-noted judgment, and by this Court in a number of judgments including Abdul Sattar Chughtai Malik, v. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170), Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCMR 314), Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377) and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation. Wing), Islamabad and others (2017 SCMR 571). Further, the learned counsel for the appellant has not been able to demonstrate or point to any legal, procedural or jurisdictional error, defect or flaw in the reasoning and exposition of law undertaken by the Islamabad High Court in the impugned judgment. After carefully going through the provisions of the Legal Practitioners and Bar Councils Act, 1973 as well as the Supreme Court Bar Association of Pakistan Rules, 1989, we have arrived at the same conclusions as the learned High Court and find no reason to interfere in the impugned judgment”.

(emphasis supplied)

7.In view of law settled by Hon’ble Supreme Court in Mirza Muhammad Nazakat Baig supra, neither impugned rules are statutory nor Pakistan Bar Council and Punjab Bar Council are amenable to constitutional jurisdiction of this Court. Therefore, the preliminary objection is

sustained and (without commenting on the merits of case, lest it may prejudice the case of either party), this constitutional petition is dismissed being not maintainable. (M.M.R.) Petition dismissed