Saad Rasool |
This week – in a sight that has become all too familiar over the recent years – our nation witnessed lawyers protesting across different districts of Punjab, ransacking public property, manhandling government officials, and boycotting courts (at the pain and peril of hapless litigants). Specifically, led by the district bars of Faisalabad and Gujranwala, members of the legal fraternity are demanding that benches of the honorable Lahore High Court be established in various other districts of Punjab, including Gujranwala, Faisalabad, Sargodha, Sahiwal, and DG Khan.
To this end, the protesting lawyers decided to vandalise the office of District Coordination Officer Faisalabad, Mr. Saifullah Dogar – who, incidentally, has no authority or involvement in the issue of creating a High Court bench in his jurisdiction.
In the circumstances, it is important to ask how, under the Constitution, can additional benches of a provincial High Court be created? Who has the authority, in this regard? How does such authority get exercised? Is there any merit in the demand being raised by the protesting lawyers? Or is this (sadly) just another link in the long chain of events that have come to be called ‘wuklagardi’ in our country?
This hypocrisy must come to an end. And the senior bar leadership, particularly in Lahore, must lend its support to the decision already taken by Full Court of LHC.
In terms of the law, Article 198(3) of the Constitution stipulates that the LHC “shall have a Bench each at Bahawalpur, Multan and Rawalpindi”, other than the principal seat in Lahore itself. Furthermore, Article 198(4) declares that a bench of the High Court may be established “at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice”.
And the honorable Supreme Court, per Al-Jehad Trust case (PLD 1996 SC 34), has deemed this “consultation” to be binding in nature. As a result, the effective process for establishment of High Court benches has to start with the consent and recommendation of the concerned Chief Justice.
Within this constitutional paradigm, over the past few years – especially since the fabled Lawyer’s Movement – a number of district bar associations across Pakistan have demanded establishment of additional High Court benches. And, the ferocity of this demand, corresponding to the belligerence of the respective district bars, has been the strongest in Punjab.
In 2016, as a result of such demands (boorishly expressed), the then Chief Justice of LHC, Justice Ijaz-ul-Ahsan was eventually persuaded (read: threatened) into assembling a Full Court of LHC, to deliberate and decide the issue. By the time the Full Court was scheduled, the Justice Ijaz-ul-Ahsan had been elevated to the honourable Supreme Court, and Justice Mansoor Ali Shah had taken oath as the Chief Justice of LHC, thus inheriting this contentious issue.
And under his leadership, for the first time, 47 judges of the honourable LHC assembled for 3 consecutive days, and decided against the establishment of new benches in the respective districts. In the aftermath of this decision, disappointing scenes of black-coats protesting (with some support from Pakistan Bar Council) surfaced across the concerned districts. Since then, while the SCBA has supported the Full Court’s decision, there has still been no concerted effort on part of the senior lawyers, especially in Lahore, to reach out and contain the periodic outbursts of protest – like the one we saw across Punjab this week.
The fabled Lawyer’s Movement – a number of district bar associations across Pakistan ave demanded establishment of additional High Court benches.
Why are certain members of district bar associations demanding the establishment of more High Court benches? Would it benefit litigants across Punjab? Or is it simply geared towards propping the personal fiefdoms of select district court lawyers? Would it help the project of justice? Or is it, instead, simply a turf-war? And even if such benches are to be established, what criteria should be used to decide the issue? Why should certain districts have a LHC bench, while others do not? Should such matters be left to the whims of bar politics alone? Or is there a deeper issue of judicial integrity and independence at stake?
Ostensibly, the demand for establishment of LHC benches emanate from the following rationale: 1) lawyers and litigants, from far off districts, have to travel a great distance to arrive at the High Court; 2) this increases the cost of litigation; 3) district court lawyers do not get enough exposure at the High Court level, thus affecting their personal growth; 4) district court lawyers, owing to lack of exposure and high court practice, have a lesser chance of being elevated to the bench; and 5) districts that do not have a LHC bench are being discriminated against.
These justifications, while sounding half plausible, are disingenuous at the core. To begin with, if discrimination is the central argument for demand of more LHC benches, then why stop at five more district benches? Members of the bar must be asked: why not have a LHC bench in every tehsil? Better yet, why not have a different bench for every town or locality within the district? A LHC Model Town bench, and a Mochi Gate bench? Or a LHC judge in every Civil Court complex?
As for the distance to be travelled by litigants and lawyers, and the consequent increase in litigation cost: here, those demanding new benches have half a point. It cannot be denied that traveling to the seat of High Court, especially for a poor litigant, entails inconvenience and expense. But this rationale is defeated by a cursory glance at the five districts that are demanding a bench; Gujranwala, Faisalabad, Sargodha, Sahiwal, and DG Khan. Each one of these is no more than an hour or two from one of the established seats of the LHC.
In fact, a lawyer or litigant from Gujranwala (Gujranwala bar being amongst the rowdiest advocate for this cause) can probably reach the principal seat faster (and cheaper) than from some of the far-flung areas of Lahore itself. And, in this day and age of modern communication and transport, can a two-hour travel-time really form the basis of altering the provincial court structure? Turning to the concern that district court lawyers have less exposure and prospects of growth, being away from the LHC bench.
The Justice Ijaz-ul-Ahsan had been elevated to the honourable Supreme Court, and Justice Mansoor Ali Shah had taken oath as the Chief Justice of LHC, thus inheriting this contentious issue.
First of all, in the recent past, there has been a concerted effort to elevate (to the bench) qualified lawyers from all areas of Punjab. Even otherwise, the truth is that no one can be blamed for lack of exposure, except the lawyers themselves. There is no prohibition for any licensed lawyer to appear before and practice in the High Courts. And there is no justification for a professional lawyer to not appear before the High Court, on account of distance or travel arrangements. In the circumstances, the professional growth of a lawyer depends on his/her own impetus to argue cases.
Each lawyer has to seek exposure; exposure cannot be thrust upon him/her. The lawyer that has to travel to the court in pursuit of profession; it is not for the court to travel to the lawyer’s neighborhood. And, in any case, there is tremendous exposure at the district court level itself. After all, under the law, civil cases up to Rs. 50 million are argued at the district level; original jurisdiction for most civil and criminal cases is at the district level; the writ of habeas can be heard in district courts; section 22-A/22-B CrPC is heard at the district level.
The truth is that the demand for more benches has nothing to do with convenience or professional growth. Instead, this demand emanates from a turf-war of meaningless eventualities. It is a lingering legacy of Iftikhar Chaudhary, and his promises made during the Lawyer’s Movement. Initially used as a means for gathering support in district bar associations, and later turned into a campaign promise during bar elections, the demand for more LHC benches is an attempt by certain members of the bar to expand their district court influence into the High Court, without having to develop the requisite professional expertise, and, in the process, to diminish the sanctity and esteem of the court.
The fault – for such demands to emanate and then fester – rests with the senior leadership of the bar, especially in Lahore. Majority of the senior lawyers in Lahore, despite opposing these demands, have held onto their convenient silence. Others, while opposing the idea of bench creation, during private conversations, have chosen to support the cause in public, for their own political interest.
This hypocrisy must come to an end. And the senior bar leadership, particularly in Lahore, must lend its support to the decision already taken by Full Court of LHC. Why are certain members of district bar associations demanding the establishment of more High Court benches? Would it benefit litigants across Punjab? Or is it simply geared towards propping the personal fiefdoms of select district court lawyers?
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission.