Bar councils rules are not challenge-able in writ petition.
 |
| Bar councils rules are not challengeable in writ petition . |
عدالت نے فیصلہ دیا کہ پاکستان بار کونسل اور پنجاب بار کونسل کے بنائے گئے قواعد آئینی دائرہ اختیار کے تحت نہیں آتے، لہٰذا درخواست قابل سماعت نہیں۔
**سید قaiser عباس شیرازی بمقابلہ پاکستان بار کونسل
** کے مقدمے میں، جو لاہور ہائی کورٹ راولپنڈی بینچ نے 23 نومبر 2020 کو فیصلہ کیا، عدالت نے پاکستان بار کونسل کے قواعد میں کی جانے والی ترامیم کی آئینی دائرہ اختیار کے تحت جانچ کی۔
**اہم نکات:**
1. **ترمیم کی مخالفت**: درخواست گزار نے قواعد کے قاعدہ 14 میں کی جانے والی ترامیم کو چیلنج کیا، جو پنجاب بار کونسل کے انتخابات میں بیلٹ پیپر کے فارمٹ کو تبدیل کرتی ہیں۔ درخواست گزار کا کہنا تھا کہ ترامیم نے ووٹ کے راز داری کو ختم کر دیا ہے اور یہ عمل غیر عملی ہے۔
2. **بعد کی ترامیم**
: درخواست دائر ہونے کے دوران، قواعد کے قاعدہ 22(2)(b) اور قاعدہ 25(3) میں بھی ترامیم کی گئیں تاکہ قاعدہ 14 کی ترامیم کے ساتھ ہم آہنگی پیدا کی جا سکے۔
3. **ابتدائی اعتراض**:
مدعا علیہان نے عرضی کی قبولیت پر ابتدائی اعتراض اٹھایا۔ ان کا کہنا تھا کہ یہ قواعد پاکستان بار کونسل نے قانونی اختیارات کے تحت بنائے ہیں، جو کہ سرکاری یا حکومتی منظوری سے نہیں ہیں، اور بار کونسلز وفاقی یا صوبائی معاملات میں شامل نہیں ہیں۔ لہٰذا، ان پر آئینی دائرہ اختیار کا اطلاق نہیں ہوتا۔
4. **عدالت کا فیصلہ**
: عدالت نے ابتدائی اعتراض کو برقرار رکھا، اور **مرزا محمد نذیر بیگ بمقابلہ وفاق پاکستان** کیس کے فیصلے کا حوالہ دیا۔ عدالت نے قرار دیا کہ پاکستان بار کونسل اور پنجاب بار کونسل وفاق یا صوبائی معاملات میں شامل نہیں ہیں، اور ان کے بنائے گئے قواعد بھی قانونی نہیں بلکہ انتظامی نوعیت کے ہیں۔ اس وجہ سے، درخواست قابل سماعت نہیں تھی۔
خلاصہ یہ ہے کہ عدالت نے درخواست کو غیر قابل سماعت قرار دیتے ہوئے مسترد کر دیا، کیونکہ قواعد قانونی نوعیت کے نہیں تھے اور بار کونسلز آئینی دائرہ اختیار کے تحت نہیں آتیں۔
Must read Judgement
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