ACCOUNTABILITY OF LAWYERS AND JUDGES

 

ACCOUNTABILITY OF LAWYERS AND JUDGES

 

Canons of professional conduct and etiquette provide that every advocate is duty bound at  all times to uphold the dignity and high standing of his profession. No fear of judicial disfavour or public unpopularity should restrain an Advocate from full discharge of his duty and the Advocate should strive his best to plead the case of his client to his utmost ability, of course, within the bounds of law. An Advocate should not render any service or advice involving disloyalty to the law or disrespect to the judicial officer or corruption of any person  or persons exercising a public office or private trust. An Advocate is required not to indulge in deception or betrayal of the public. No Advocate is allowed to use his previous designation or post such as “Retired Justice”, Ex-Judge”, Ex-Attorney General”, “Ex- Advocate General” or any such other designation as prefix or suffix, either on letter-heads, name plates, sign boards, visiting cards  etc. The canons require an Advocate to maintain towards the Court a respectful attitude. A self-respecting independence in the discharge of professional duty, without denial or diminution of the courtesy and respect due to the Judges’ station is the only proper foundation for cordial, personal and official relations between the Bench and the Bar as per the canons.

 

If we keep these cannons (breach of any of which will amount to misconduct) in our mind and compare the condition and  state of affair prevalent today we will irresistibly conclude that there are only a few who are adhering to and following these rules. If we scrutinize routine individual conduct of the members of our profession and the conduct of the Bar Associations collectively a very sad picture emerges.

 

One of the important powers  conferred on the Bar Councils is the power to deal with the cases of misconduct and indiscipline of members. The  disciplinary jurisdiction has been taken away from the High Courts and is presently vested in the Bar Councils by the Legal Practitioners and Bar Councils Act. This change has not improved the conduct and discipline amongst the Advocates. The Legal Practitioners Act provides for the Constitution of Pakistan Bar Council and the Provincial Bar Councils. These Councils then elect Chairman and members of the Disciplinary Committee. The decisions of these Disciplinary Committees are appealable and an Appeal is filed before the Tribunal which is headed by a Judge of High Court in case of a Provincial Bar Council and a Judge of Supreme Court in case of Pakistan Bar Council.  We have watched with anxiety that over the  years, the Bar Councils have not been able to attract, barring a very few exceptions, the leading members of the Bar at the Provincial or Pakistan level. To make the Bar Councils function more effectively and to improve the discipline and image of the Bar and the legal profession, it is necessary to induct the leading members of the Bar into the Bar Councils. Basic and structural changes are, therefore, necessary in the existing set up of these Councils. Relevant sections of the Act need to be amended to provide for the nomination of the leading members of the Bar to the extent of atleast 25% of the total members of a Bar Council.  The power to nominate eminent members of the Bar may be conferred on the Chief Justice of Pakistan  and senior Judges of Supreme Court in case of Pakistan Bar Council and the Chief Justices and some senior judges of the respective High Courts in the case of Provincial Bar Councils. Further the election to the Pakistan Bar Councils should be direct so that manipulation and corruption which is the main characteristic  of every indirect election be avoided. As explained above in  order to properly discipline the profession, it is necessary that the senior most Judge of the High Court should be associated with the Disciplinary Committee of the Provincial Bar Council beside another judge of the High Court heading the Tribunal.  Like-wise in the  Pakistan Bar Council also at the preliminary stage of Disciplinary Committees the said Committee be presided over by the senior most Judge of the Supreme Court.

 

The legal profession claims to be an honourable and noble profession. Judges and the public both expect from the Advocates a much higher standard than those applicable in case of other professions. The loss of credibility of the profession is generally expressed and greatly felt. Banks and other financial institutions refuse to lend money to Advocates and the landlord will never knowingly let out his property to them. Generally there is lack of commitment on the part of lawyers and they are accused of charging high fees. In one way or the other they are even accused of protracting the litigation. Some complaints have been received by the Bar Councils accusing certain Advocates of charging exorbitant fee in the name of Judges. In a nutshell the image of the profession is one of inefficiency, corruption and over-crowding. We  should encourage the litigant public to bring forth these grievances to the notice of Bar Councils, which should take prompt action against their erring members. We have observed with pain that as the members of the Bar Councils are elected and they depend on the general vote, therefore, they usually show partiality towards  those against whom the allegations are leveled. Therefore, it has been suggested earlier that the Councils should have some nominated members also.

 A new syndrome has recently developed among the lawyers i.e. of embarking on strikes for remedying any and every grievance-sometime a demand for transfer of a particular judicial officer on whimsical grounds. Some time strikes are resorted to as a show of solidarity on the arrest or even on a registration of a bonafide case against a member of the Bar.

 Due to the Bar Councils being highly politicized and sharply divided into groups it is suggested that the institution of a legal Ombudsman be established. This institution should remedy the failure on the part of the Bar Councils and other professional bodies. In the event of the disciplinary bodies not acting effectively, the legal Ombudsman should take over the investigation of complaints and dispose of the same as per the law.

Advocates and more particularly senior Advocates be requested to provide free legal aid to the needy. There should be a well-organized machinery to monitor the legal aid provided by senior lawyers to the needy, poor and deserving litigants. Majority of lawyers in Pakistan start their career at a disadvantage because they belong to an economically weaker background as compared to those few who manage to monopolise the profession. These few enjoy a better economic background and have access to the financial backing. They have the means to access the right clubs and sufficient governmental influence which enables them to have constant flow of work with rich fee and thus they are put to a firm financial footing. In my opinion, therefore, there should be a robust support system for the disadvantaged lawyer. This  system may be from the Bar Councils or from the Bar Association with due supervision of respective High Courts. Lawyers and Advocates should be encouraged to form cooperative law firms. These Advocates will certainly be a strong force and would represent the interests which otherwise go unrepresented, against charging nominal fee from those litigants. They will in fact be the Awami Lawyers. These Advocates will be able to get more cases  for a nominal fee charged for each case rather  than have one case against charging exorbitant fee.

 

Accountability of Judges- Subordinate Judiciary: The Members of the sub-ordinate Judiciary are recruited to the Sindh Judicial  Services through selection and proper examination and thereafter appointed under the Sindh Civil Servant Act, 1973 and  are  governed by the Rules and Regulations framed  under the said Act.

 As per the Sindh Civil Servants (Efficiency & Discipline Rules) 1973, appropriate disciplinary action is to be taken and  minor as well as major penalties are to be imposed upon all these members of   the Sindh Judicial Service, who are guilty of “ misconduct” defined in the Sindh Civil Servants (Efficiency & Disciplinary Rules) 1973.

 As per the proviso of  Section 2(4) of Sindh Civil Service (Efficiency & Disciplinary Rules ) 1973, the  Authority is the Chief Justice of High Court or a Judge of the High Court who may be  appointed by him.

 As per  the Sindh Service Tribunal Act, 1973, Sindh Act XV of 1973 under Section 3-B, a Tribunal consisting of three Judges of High Court, the most senior  is designated to be the Chairman and the other two Judges  act as members of the Tribunal and  Tribunal so established  has the exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Members of the Subordinate Judiciary.

 

In order to monitor the conduct of the subordinate Judiciary in the High Court of Sindh, we have three offices of Member Inspection Team. They have elaborate arrangements for receiving complaints  which may emanate from an individual or from organizations like Bar Associations. The Members of the Inspection Team are senior Judicial Officers, who approach each case very carefully and give their recommendations to the  High Court Judge, who is the ultimate Incharge. If it is thought that the complaint or grievance is further to be probed into then such action is taken through the Members Inspection Team and details are called from the concerned Judicial Officer/Judge. If an action is needed to be taken, the same is recommended to the Chief Justice , who accordingly passes appropriate orders about taking the action. The work in the offices of the Members Inspection Team is entirely and wholly computerized and through the computerization of the whole process even ACRs of the concerned Judicial Officers can be read with just pressing of a single button.

 

Superior Judiciary:  In Chief Justice of Pakistan v. President of Pakistan and others, PLD 2010 SC 61, a larger bench of the Supreme Court has finally held that the Supreme Judicial Council, which comprises of  the Chief Justice of Pakistan and two most senior Judges of the Supreme Court and two most senior Chief Justices of the High Court is the forum entitled to the highest respect. The Constitution and a plethora of case law  decided under Article 209 of the Constitution of Islamic Republic of Pakistan very elaborately enunciate the mode and method to be adopted for proceeding against  a Judge of superior Court for his accountability. The Supreme Court in that case has categorically and on the strength of several cases already decided by it has held that the only forum to inquire into the conduct of the Judges of superior Courts including the Chief Justice of Pakistan in terms of Article 209  of the Constitution is Supreme Judicial Council established under Article 209.