Majority opinion: SC upholds IHC verdict on PBC bodies

Jusice Umar Bandial writes dissenting note

ISLAMABAD: A Supreme Court judge has urged the Pakistan Bar Council (PBC) to amend its rules for impeachment or a vote of no confidence against its chairmen and committees.

“It is necessary that the council must in exercise of its power under Section 55 of the Act, incorporate an appropriate mechanism within its Rules, setting out the conditions on which the terms of its chairmen and members of the committees may be terminated by members of the council,” says Justice Umar Ata Bandial, who dissented with majority views.

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Justice Azmat Saeed Sheikh and Justice Faisal Arab, while issuing the verdict, have upheld the Islamabad High Court (IHC) judgment. The majority judges rejected Hamid Khan lawyers group’s plea against the Islamabad High Court’s verdict, which allowed the council to reconstitute the committees. The SC reserved the verdict in November last year. All PBC committees have remained suspended for the last six months.

Justice Faisal Arab, while authoring the main judgment, has observed that the bar council has inherent power to decide in an appropriately convened meeting to reconstitute its committees (which in the present case was not done).

“In exercise of such power, it may on its own choose to give reasons though it is not obliged by law to do so. Rule 100, therefore, cannot be used as a shield to prevent the bar council from exercising its power to withdraw its delegated authority from a set of committee members and entrust it to another,” says the main verdict.

However, Justice Umar Ata Bandial issued a dissenting note, wherein he stated that an amendment in the Rules is therefore necessary for carrying out the scheme of the Act and for enforcing better democratic governance of the council as contemplated by the Act and the Rules. The substantive terms of the amended rules are left to the able and experienced hands of members of the Pakistan Bar Council who are all advocates of this court.

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Justice Umar expressed concern over the absence of a mechanism or recall otherwise in the Act or the Rules, the accountability of the chairmen and members of committees by the majority in the council stands totally blocked.

“To our minds, the elements of transparency in actions, the confidence of and accountability before the electorate are crucial for the functioning and development of democratic governance in any institution,” he further said.

The court said: “It is undisputed that the council is constituted by the statute and all its proceedings and actions are regulated and governed by democratic norms that are laid down in the Act and the Rules.

Justice Umar Ata Bandial says that in case the council fails to frame the requisite amended Rule(s) within the given timeframe, then it is observed that 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.

“In other words, they shall upon the lapse of two years after their election to their offices be required to secure a fresh vote of confidence of the majority of total members of the council in order to retain their offices.

“At the said election of the committees, the council shall, if so inclined, have the opportunity to fix a shorter term of the committees. The fresh elections for constituting the Committees and Disciplinary Tribunal of the council shall accordingly be held in the month of January 2018 on a date fixed by the chairman of the council”, says Justice Bandial.