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P L D 2017 Supreme Court 231
Present Sh. Azmat Saeed, Umar Ata Bandial and Faisal Arab, JJ
MUHAMMAD SHOAIB SHAHEEN and others—Petitioners
versus
PAKISTAN BAR COUNCIL and others*—Respondents
Civil Petition No.3345 of 2016, decided on 16th November, 2016.
(On appeal against the judgment dated 13-10-2016 passed by the Islamabad High Court Islamabad in Writ Petition No.3394 of 2016)
Per Faisal Arab, J; Sh. Azmat Saeed, J, agreeing; Umar Ata Bandial, J dissenting.
(a) Custom/usage —
No customary practice or usage could be sought to be enforced which was contrary to the codified law—Past practice could never substitute codified law. [p. 237] A
(b) Law
—No law could be made inoperative through obsolescence as long as it was in the field, fp. 237] B
(c) Pakistan Legal Practitioners and Bar Councils Rules,1976-
Legal Practitioners and Bar Councils Act (XXXV of 1973),
S.15—General Clauses Act (X of 1897), S. 14—Reconstitution of Committees by the Pakistan Bar Council before expiry of their tenure— legality—[Per Faisal Arab, J: Rule 100 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 (“Councils Rules*) made . ihe term of the Committees co-terminus with the term of the Council or p any other term fixed by the Pakistan Bar Council ("the Council") at lime of creating them—Said Rule did not mean that the Committees could not be reconstituted and shall remain absolutely immune from Council's interference till their whole term expired—Council could not be prevented from exercising its power to withdraw its delegated outhority from a set of Committee members and entrust it to another as and when deemed appropriate]—[Per Sh. Azmat Saeed: Minimum tenure of the Committee was fixed by the Council—Such power once exercised or not exercised was not exhaustive and could be re-exercised again]—[Per Umar Ata Bandial, J; dissenting: Legal Practitioners and Bar Councils Act,
1973 (uthe Act”) and the Councils Rules did not provide any provision for removal from office of an elected Chairman or member of a Committee of the Council by any means whatsoever—No impeachment, recall or vote of no confidence mechanism was available in the Act or the Councils Rules for authorizing remedial action by the Council—
Term of office of Members of the Committees ran co-terminously with the term of the Council because notwithstanding the Council’s one time power to fix a shorter term of the Committees at the time of constituting them, the Council did not do so, and thereby confirmed the full term of five years for such Committees—Such accrued right of Chairmen and Members of the Committee could not be defeated by a majority vote in the Council without a suitable amendment in the Councils Rules to incorporate the right of the members of the Council to bring a motion of no confidence or of impeachment—His Lordship issued certain directions in such regard] [Minority view]—Petition was dismissed accordingly and leave was refused.
Pakistan Bar Council (“the Council”), by exercising majority vote reconstituted all its Committees, at a time when the tenure available to the Committees under Rule 100 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 (“the Councils Rules”) had not yet expired. Council suspended Rule 100 before reconstituting the Committees. Petitioners challenged the reconstitution of the Committees on the basis that no change in their composition could be brought about during subsistence of their available term.
Per Faisal Arab, J: [Majority view
Rule 100 of the Councils Rules could not be interpreted so as to tie the hands of the Council and render it powerless that it could not reconstitute its Committees as and when deemed appropriate. Mere fixation of term of an office did not necessarily mean that the possibility to prematurely terminate such term stood ruled out, therefore it was not legally tenable to maintain that simply because Rule 100 had made the term of the Committees co-terminus with the term of the Council or any other term fixed* by the Council at the time of creating them, the Committees could not be reconstituted and shall remain absolutely immune from Council’s interference till their whole term expired. In order to make premature changes in the composition of Committees, the Bar Council did not need to suspend the provisions of Rule 100 of the Councils Rules. Committee was a body that exercised authority originally vested in the Council, which was delegated to the Committees through the mandate of law or through a decision of the Council itself.
Members of the Committees simply held office in the Committees during the pleasure of the Council. In its capacity as the principal, the Council had the inherent power to decide to reconstitute its Committees in an appropriately convened meeting. In exercise of such power, the Council may of its own choose to give reasons though it was not obliged by law to do so. No provision of the Legal Practitioners and Bar Councils Act, 1973 or the Pakistan Legal Practitioners and Bar Councils Rules, 1976 required that an opportunity of hearing was to be first given to a member of the Committee which the Council intended to prematurely replace. Not even a notice period was envisaged to be given to the member sought to be removed from the Committee before induction of a new member in his place. Rule 100 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 could not be used as a shield to prevent the Council from exercising its power to withdraw its delegated authority from a set of Committee members and entrust it to another, [p. 239, 240] C, D, E, F & G
[Per Sh. Azmat Saeed, J; agreeing with Faisal Arab, J] : [Majority view]
Life of the Committee was determined by Rule 100 of the Councils Rules, which empowered the Council to fix the tenure of the Committee at the time of constituting the same. Minimum tenure of the Committee was, thus, not fixed by the statute (i.e. Council Rules) but by the Council. Such power once exercised or not exercised was not exhaustive and there was nothing to prevent the Bar Council from reexercising of such power in terms of the principle laid down in section 14 of the General Clauses Act, 1897. [p. 242] H
Per Umar Ata Bandial, J; dissenting: [Minority view]
Neither the Legal Practitioners and Bar Councils Act, 1973 (“the Act”) nor the Councils Rules made any provision for removal from office of an elected Chairman or member of a Committee of the Council by any means whatsoever. Both the Act and the Councils Rules also did not address the matter of cessation of membership of Committees. Hence no impeachment, recall or vote of no confidence mechanism was available in the Act or the Councils Rules for authorizing remedial action ( by the Council. In the present case, no difficulty, or inconsistency in the application of the Act or the Councils Rules was noted by the Council to justify the suspension of Rule 100 of the Councils Rules. No ground for dissatisfaction with the Chairmen and members of all Committees was disclosed or discussed in the General Meeting of the Council wherein all Committees were reconstituted. In the facts of the present case Rule 100 of the Councils Rules envisaged in mandatory words that the term of office of members of the Committees shall run co-terminously with the term of the Council; this was because notwithstanding its one time power to fix a shorter term of the Committees at the time of constituting these, the Council did not do so, and thereby confirmed the full term of five years for such Committees. Consequently, it was an accrued legal right of the Chairmen and members of the Committees that the tenure of their offices equalled the full term of the Council. Such right of elected office bearers could not be defeated by a majority vote in the Council without express authority under the Councils Rules, i.e. a suitable amendment in the Councils Rules to incorporate the right of the members of the Council to bring a motion of no confidence or of impeachment as may be deemed appropriate against, inter alia, members and Chairmen of the Committees. [Minority view]
[pp. 247. 249, 250, 256] I, J, L, M & 0 Muhammad Nawaz Sharif v. Federation of Pakistan PLD 2009 SC 644 ref.
His Lordship directed that the Council must incorporate an appropriate mechanism within its Rules setting out the conditions on which the terms of the Chairmen and members of the Committees may be terminated by the members of the Council; that an amendment in the Pakistan Legal Practitioners and Bar Councils Rules, 1976 was therefore necessary for carrying out the scheme of the Act and for enforcing better democratic governance of the Council; that in case the Council failed to frame the requisite amended Rule(s) within a period of six months, then as a default measure, the presently elected members of the Committees and the Disciplinary Tribunal of the Council shall be deemed to have a term of two years rather than five years. [Minority view] [pp.257, 258] Q & R
Per Umar Ata Bandial, J:
(d) Interpretation of statutes —
—Generally, the power conferred on a competent authority to suspend or relax rules was construed narrowly because it permitted deviation from the applicable law. [p. 249] K
(e) Constitution of Pakistan —
—Preamble—Democratic order—Fundamentals—‘Rule of law9 and ‘rule by the chosen representatives of the electorate' were the two fundamental pillars of a democratic order, [p. 253] N
Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 ref.
(f) Statutory functionary
Accrued legal rights—Scope—Statutory functionaries did not have the authority to take away accrued legal rights of affected persons, [p.256] P
Alsamrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 and Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.
Hamid Khan, Advocate Supreme Court, Shoaib Shaheen, i Advocate Supreme Court and Ahmed Nawaz Ch, Advocate-on-Record (Absent) for Petitioners.
Ms. Asma Jehangir, Advocate Supreme Court, Syed Qalb-i-Hassan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate on Record for Respondent No. 12.
Kamran Murtaza, Advocate Supreme Court for Respondent No.5.
Azam Nazir Tarar, Advocate Supreme Court for Respondent No.8.
Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondent No.9.
Qousain Faisal, Advocate Supreme Court, Ghulam Mustafa Kandowal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate on Record for Respondent No.20.
Nemo for other Respondents.
Abdul Rashid Awan, DAG for Attorney General.
Date of Hearing: 16.11.2016 -
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