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Detainees should not suffer if advocates go on strike, says SC

Detainees should not suffer if advocates go on strike, says SC

ISLAMABAD: The Supreme Court held on Monday that a detained accused should not be made to suffer because his advocate was on strike.

“The Pakistan Bar Council (PBC) has enacted the Canons of Professional Conduct and Etiquette of Advocates which stipulates that ‘It is duty of advocates to appear in court when a matter is called’ and ‘make satisfactory alternative arrangements’ if he is unable to,” observed Justice Qazi Faez Isa in a judgement.

Justice Isa, who headed a two-judge SC bench, observed that an advocate must discharge his duty towards a client.

“Every relationship functions on the basis of trust and when trust is broken the relationship flounders and unravels, which also has societal repercussions,” observed Justice Isa.

Justice Isa says in 2007, courts were boycotted because the superior judiciary was dominated by judges who took an oath of allegiance to a dictator

The bench had taken up an Oct 24 appeal by Shahbaz Akmal against the Multan bench of the Lahore High Court. Advocate Shakir Ali, who represented the petitioner, said his client was arrested on May 17, 2018, on a murder charge registered on April 9, 2018, in Multan.

The petitioner has been under detention since then and as his trial has not wrapped up within two years, he is entitled to bail, Shakir Ali contended.

The counsel said the Lahore High Court had directed the trial courts on June 23, 2020, to wrap up the trial in three months, but the trial has not concluded despite the passage of over four years since the petitioner’s arrest and over two years since the directive was issued.

When a report was sought from the trial court to explain why the trial had not been wrapped up within the stipulated period, the Additional Sessions Judge in Multan cited strikes by lawyers and the absence of some of the co-accused, who were on bail.

Sacred trust

Justice Isa observed in his judgement the Constitution states at the outset that the exercise of authority was a sacred trust. “If an advocate representing a detained accused does not attend court, he fails to perform his professional duty and breaks his client’s trust.”

An accused person has a right to ‘enjoy the protection of law’ and to be treated in accordance with the law, but if advocates go on strike and trials are postponed, this constitutional right is negated, Justice Isa regretted.

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 strikes and subsequently, the accused is acquitted the additional detention suffered by the accused would have been detrimental to his liberty, Justice Isa said.

Justice Isa recalled that during the lawyers movement in 2007, some superior courts came to be presided over by those who took an oath of allegiance to a dictator (in violation of their constitutional oath of office) or by those who were not appointed in accordance with the Constitution.

“Therefore, to protect and ensure compliance with the Constitution for the benefit and protection of the people, strikes were called and courts were boycotted.”

However, Justice Isa added, if an advocate goes on strike for a lesser or personal reason, it would be appropriate to first return the professional fee received from the client. An advocate should not stop working at the expense of the client, the judge emphasised.

The apex court directed the trial court to conclude the petitioner’s trial expeditiously within two months from the date of the receipt of this order.

Published in Dawn, January 10th, 2023

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