SC frowns on lawyers’ court absence during bar strikes

The Supreme Court has strongly disapproved the lawyers’ practice of non-appearance before the courts when they go on bar strikes.

The top court directed the superior bars to ensure that the prestige of the legal profession was not undermined by advocates who observed strike for a lesser cause than to protect and defend the Constitution in the public interest.

“Copies should also be sent to all provincial bar councils and the Pakistan Bar Council, who undoubtedly will remind advocates of their professional duties and ensure that the prestige of the legal profession is not undermined by advocates who strike for a lesser cause than to protect and defend the Constitution in public interest,” a four-page judgment authored by Justice Qazi Faez Isa said during the hearing on post-arrest bail of an accused involved in a murder case.

A division bench of the apex court led by Justice Isa heard the matter.

The petitioner’s counsel stated that he was arrested on May 17, 2018 and remained in detention since then.

Referring to Clause (b) of the Third Proviso of Section 497 of the Criminal Procedure Code, 1898, the lawyer submitted that the petitioner was now entitled to bail as his trial had not concluded within a period of two years (as mentioned the cited provision) and the delay was not occasioned by the petitioner.

He said that a high court on June 23, 2020 had directed a trial court to conclude the trial preferably within three months.

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He said the trial was not concluded despite the passage of four years and seven months since the petitioner’s arrest and over two years and six months since the said direction was issued.

The apex court had sought a report from the trial court to understand why the trial had not concluded.

A report submitted by additional sessions judge Multan, who is conducting the trial, mentioned a number of reasons, including strikes by lawyers and the absence of some of the co-accused (who are on bail).

The order stated that a detained accused must not be made to suffer on account of his counsel’s choice to observe strike or do so in solidarity with his colleagues.

"The Pakistan Bar Council has enacted the ‘Canons of Professional Conduct and Etiquette of Advocates’ which stipulates that, ‘it is [the] duty of the advocates to appear in court when a matter is called’ and ‘make satisfactory alternative arrangements’ if he is unable to."

The court noted that the advocate representing an accused must discharge his duty towards his client.

Every relationship functions on the basis of trust, and when trust is broken, the relationship flounders and unravels, which also has societal repercussions, the order said.

It said that the Constitution commenced by stating that the “exercise of authority is a sacred trust”.

The order stated, “An advocate representing a detained accused fails to perform his professional duty and breaks his client’s trust if he does not attend the court.

"An accused person like any other has the inalienable right to ‘enjoy the protection of law and to be treated in accordance with law’ but if advocates strike and trials are postponed this constitutional right of the accused is negated.

"The Constitution also mandates that ‘no action detrimental to the … liberty’ of anyone be taken ‘except in accordance with law’ therefore, if the trial of a detained accused is delayed on account of strike(s), and subsequently, the accused is acquitted then the additional incarceration suffered by the accused would have been detrimental to his liberty."

The order stated, "We also note that at times a case is adjourned because the complainant’s advocate is not in attendance. It is clarified that a court does not have to wait for the complainant’s advocate to attend court, much less adjourn a case due to his absence, because the State counsel, employed at taxpayers’ expense, is required to prosecute cases."