1. The petitioners and the respondent Nos. 3 to 22 are all elected members of the Pakistan Bar Council (Bar Council). The Bar Council, in its meeting held on 03.09.2016 by exercising majority vote reconstituted all its Committees that were constituted earlier on 25.01.2016. This was done by first suspending Rule 100 of the Legal Practitioners and Bar Councils Rules, 1976 in exercise of the power contained in Rule 185. At that time the tenure ordinarily available to the Committees under Rule 100 had not yet expired. The petitioners challenged the reconstitution of the Committees in Writ Petition No. 3394/2016 before the Islamabad High Court, which was decided vide judgment dated 13.10.2016. It was held that the term of the Committees is terminable by exercising the majority vote of the Bar Council. It was further held that as the Bar Council voted for the reconstitution of its Committees in a meeting in which it was not an item on its agenda, let a fresh meeting for the said purpose be convened. Aggrieved by such decision, the petitioners have preferred the present petition for grant of leave to appeal.
2. The main ground taken before us by petitioners’ counsel is that once the Bar Council constitutes a Committee, it shall continue to function without being interrupted by Bar Council in any manner until its entire term available under Rule 100 expires. In other words no change in the composition of Committees’ membership could be brought about during subsistence of the term available to the Committees. The petitioners’ counsel further submitted that Rule 185 was wrongly invoked as it is meant for removing difficulties only and cannot be used to remove the protection accorded to the tenure of the Committees under Rule 100. In the alternative, it was also argued by the petitioners’ Counsel that even if it is assumed that the Bar Council possesses the power to reconstitute its Committees before their term expires, in the past this has been done with the consensus of all members of the Bar Council whereas in the present case no such consensus was reached and thus the past practice which also has the force of law was not honoured by the Bar Council. The counsel for the respondents, on the other hand, argued that nothing in the Legal Practitioners & Bar Councils Act, 1973 or the Rules bars the Bar Council from reconstituting its Committees or remove the members from the Committees as the powers which the Committees exercise under the law originally vest in the Bar Council.
3. It may be clarified at the very outset that the Chairman of the Disciplinary Committee as well as Enrolment Committee are nominated by the Chief Justice of Pakistan from amongst serving Judges of this Court. They being ex-officio members are not under the authority of the Bar Council so they only cease to be members of the Committees when they cease to be judges of this Court or the Chief Justice of Pakistan in their place nominate other judges as Chairmen or the Committees which they chair complete their term. Except for these two exofficio members, the rest of the members of the Committees are chosen by the Bar Council from amongst its members and the issue involved in this case relates to such chosen members only.
4. Now taking the issue of past practice first, the history on this issue shows that on four occasions in the past, the Pakistan Bar Council reconstituted its Committees before expiry of their term. This happened in 56th meeting of the Bar Council held on 12.02.1987, 177th meeting held on 23.08.2008, 193rd meeting held on 25.5.2012 and 204th meeting held on 31.1.2013. In the 56th meeting, all Committees were reconstituted with unanimous decision. In 177th meeting, Committees were reconstituted by majority vote. Though objection under Rule 100 was taken in this meeting but the same was overruled. In 193rd and 204th meetings, Committees were reconstituted again by majority votes after suspending the operation of Rule 100 by invoking Rule 185. It can be seen that only on one out of four occasions in the past, reconstitution was done with the consensus of all members of the Bar Council. In the remaining three occasions, decision was taken by majority vote. From this, a consistent past practice of reaching the decision with consensus is not established. Had that been so, still the same cannot be given effect to for the simple reason that the petitioners have themselves based their claim on the interpretation of the Legal Practitioners and Bar Councils Rules 1976, which have the force of law whereas the claim of establishing past practice based on consensus occurred only once and that too when the Rules were already in operation. No customary practice or usage can be sought to be enforced which is contrary to the codified law. Past practice can never substitute codified law as no law can be made inoperative through obsolescence as long as it is in the field. Therefore, unless a solution to an issue could not be found in the law itself, the plea of past practice cannot succeed.
5. What triggered reconstitution of the Committees on 03.09.2016 is not an issue before this Court to decide. The issue is, was it done in a way that is permissible in law? The resolution of the controversy with regard to the tenure of the Committees verily lies in exploring the real intent behind incorporating Rule 100 in the Legal Practitioners and Bar Councils Rules, 1976. Rule 100 reads “The term of every Committee shall be the same as that of the Council itself unless the Bar Council when constituting the Committee provides otherwise.” This Rule has two parts. The first part reads “The term of every Committee shall be the same as that of the Council itself”. What this part conveys is that the Committees cannot outlive the life of the Bar Council that has constituted them. The day the term of office of a Bar Council comes to an end the then existing Committees stand decommissioned and all unfinished business of the Committees stand terminated. All members of the Committees then shall be deemed to be released of their authority and responsibility arising from or in connection with their assignment on the Committees. The second part of the rule reads “unless the Bar Council when constituting the Committee provides otherwise”. This part is simply intended to convey that it is not necessary that the term of the Committees to always remain co-extensive with the life of the Bar Council as the Committees could also be constituted for a different term i.e. a term which is shorter than the life of the Bar Council. Obviously under the second part of the Rule, no term can be fixed which lasts beyond the life of the Bar Council as it would defeat the very object of the first part of the Rule. So the second part of the Rule facilitates fixation of a term that is shorter than the term of the Bar Council. Rule 100 thus only provides for the maximum term for which the committees can last i.e. either equal to the life of the Bar Council or any period shorter than that. Thus the only purpose of incorporating Rule 100 was to provide terminus ad quem upon expiry of which the Committees automatically stand decommissioned. Nothing more is to be read into this Rule. By fixing a terminus point for the Committees under Rule 100, does it mean that the Bar Council cannot prematurely reconstitute its Committees as and when it deems appropriate? This is precisely the question, which needs to be explored next.
Further information regarding reconstitution of committees during elected term of Bar Council can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.