PESHAWAR: The Peshawar High Court has ordered the Pakistan Bar Council to give the call for strike only if the dignity, integrity and independence of judiciary and lawyer bodies are threatened.

A bench consisting of Justice Roohul Amin Khan and Justice Shakeel Ahmad also declared unconstitutional a provision of the Pakistan Legal Practitioners and Bar Council Rules, 1976, under which the non-observance or defiance of the PBC’s decisions by lawyers regarding strike or protests is deemed to be professional misconduct.

The court made the declaration while accepting a petition of lawyer Ali Azim Afridi, who had requested it to declare unconstitutional Rule 175-E of the Pakistan Legal Practitioners and Bar Councils Rules, which allowed the PBC to give the call for nationwide strike.

The petitioner had also sought the court to declare unconstitutional Rule 175-B to the extent of non-observance or defiance of the PBC decisions by lawyers regarding strike or protest to be deemed as misconduct.

Rules such protest should happen only if freedom of judiciary is at stake

The bench referred to several judgements of superior courts and observed that in the name of strike, no person had the right to cause inconvenience to any other person or in any manner a threat or any apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property.

“Taking out noisy and disorderly demonstrations for instance throwing of stones by the demonstrators would not obviously be within the meaning of Articles 18 and 19 of the Constitution. However, the right to strike or the right to declare strike may be restricted to appropriate cases or rarest of the rare cases in which the dignity, integrity and independence of the bar or the bench are at stake,” it declared.

The bench ruled that the validity of the impugned Rule 175-B relating to non-observance and defiance of the decisions of the PBC by any bar council, or bar association or any member of the bar (advocate) relating to strike, restraining the lawyers from making appearance in the courts in discharge of their professional obligations, considering appearance of lawyers in courts on the day of strike as gross professional misconduct making them liable to disciplinary action, when tested with reference to the provisions laid down in Articles 4, 8 and 18 of the Constitution offended those provisions and therefore, it had been struck down to that extent.

It added that every advocate, who had accepted a brief, was bound by duty to attend trial or proceedings of the court.

“However, no force or coercion should be employed against the lawyers who are not in agreement with the strike call and want to discharge their professional duties,” it ruled.

The petitioner insisted that Rule 175-B provided that non-observance or defiance of decisions and instructions of the PBC by any bar council or bar association or any member of the bar and advocate should be deemed to be a gross professional misconduct.

He added that the said rule amounted to blocking and hampering the appearance of the petitioner and other lawyers and people before courts.

The petitioner contended that the right to access to justice was a fundamental right provided for by the Constitution and as such, the call of strike and protest at national level prevented lawyers from performing their duty and that, too, to the discredit of people.

He said the Legal Practitioners and Bar Councils Act nowhere provided for action over non-observance and defiance of instructions pertaining to call of strike and protest issued by the PBC.

Published in Dawn, April 1st, 2023