2025 PLP 1902 (CLC)

DR. KHURSHID IQBAL, J.

By means of the Amending Act No. XXXV of 2018, dated 01.06.2018, the period of an advocate's standing at the bar-as part of his/her qualification for election as a member of a Provincial Bar Council ("PBC") and the Islamabad Bar Council-on the day of filing nomination papers, has been enhanced to fifteen (15) years. This amendment was introduced in clause (b) of subsection (1) of section 5A of the Legal Practitioners and Bar Councils Act, 1973 ( the Act, 1973 ). Mr. Naeem Ahmad Khattak in the instant petition, and Malik Immad Azam Khan, in the connected one, both learned advocates of the High Court from Peshawar and Kohat, respectively, have challenged the amendment, terming it ultra vires the Constitution, contending that it is against the settled legal principles and jurisprudence. The question of law being one and the same, we propose to dispose of both the petitions through this single opinion.

2. The case of Mr. Khattak concisely is that the duties and responsibilities of members of a PBC are not "hyper-technical" which a practising lawyer having 10 years of standing can easily perform. The impugned amendment, he adds, as far as experience goes, tends to put a member of the PBC at a higher pedestal than even a judge of High Court whose appointment requires 10 years standing at the bar. In this perspective, he contends, the impugned amendment offends Articles 4, 18 and 25 of the Constitution.1

3. Mr. Azam pleads that the impugned amendment is prompted by mala fide because it militates against his aspiration to be elected as a member of the PBC. He contends that the impugned amendment is also against the ratio of the Supreme Court [SC: 2018] ruling in Mustafa Impex.2 He further avers that a law must stand the test of certainty and reasonableness. In this respect, his next contention is that the Act, 1973 has been introduced to give fair chance to every practising lawyer to participate in the election process, so the impugned amendment is, as he asserts, "patently unreasonable" and against the true import of "the parent enactment" (apparently, the Act 1973). He refers to the cases reported as PLD 1963 SC 4863 and PLD 2006 SC 6974, stating that a law repugnant to the Constitution would be liable to be struck down. Ground 'H' of the petition is worth perusal: H. That it is the settled principle laid down by the superior courts that the law if is invented [sic] does not passed the following test would be contently be declared ultra- vires i.e. i) If the stated procedure for making that law has not been followed. ii) If the newly enactment law is repugnant to the provision of some other statute. iii) If that law is conflict with parent Act itself. iv) If newly enactment is uncertain, v) If newly enactment is unreasonable.

4. On 23.11.2022,notice under Order XXVII (1) of the Civil Procedure Code, 1908 (C.P.C.) was ordered to be issued to the Attorney General of Pakistan with the direction to the Additional Attorney General to submit his authorization if the former is unable to appear before the Court. The Court also issued direction that a copy of the proceedings and debate of the Standing Committee and the Parliament be produced.

5. The sole ground the Federation (respondent No. 1) set up in its comments submitted in the instant petition is that the tenure of experience has been increased in order to ensure that most experienced lawyers are elected as members of a PBC. Its comment in response to grounds A-C in the instant petition, reads as under: Not admitted. It is submitted that a Member of the Provincial Bar Council has to perform certain duties and has certain responsibilities with regard to functions of the Provincial Bar Council. The purpose of the amendment is that more experienced person is required to be elected as a member of the Bar Council, so Bar Council can be benefited of his experience and dedication.

6. We heard Mr. Ali Azeem Afridi, and Mr. Muhammad Farooq Malik learned counsel for the petitioners and Mr. Sanaullah, learned Additional Attorney General for the Federation at length. The main thrust of the arguments of learned counsel for the petitioners is that the impugned amendment aims at discriminating against the younger lot of the practising lawyers as it creates a hurdle in their way to become members of the PBC. They relied on Mustafa Impex.

7. The sole and simple question for determination by this court is that whether the impugned amendment is in accordance with the Constitution. The impugned amendment reads as under: 5A. Qualifications for membership of a Provincial Bar Council [and Islamabad Bar Council], - A person shall be qualified to be elected as a member of a Provincial Bar Council [and Islamabad Bar Council] if he: [(a) ... (b) has, on the day of filing of the nomination paper, been and advocate for not less than [fifteen] years: (c) ... Provided that [footnotes omitted].

8. It is pertinent to mention that initially the standing at the Bar was 07 years, which was enhanced to 10 year vide amending Act No. XII of 2005, and now enhanced to 15 year vide the impugned amendment. A plain reading of the above text of the impugned amendment shows that it is clear in its language which does not invite any other interpretation. It simply states that as part of the qualification for a member of a PBC, a standing of 15 years is required.

9. The jurisprudence on judging the vires of a law is consistent long standing and well settled. In Lahore Development Authority,5 (SC:2015) in which the vires of certain provisions of the Lahore Development Authority Act, 1975, were considered, the Supreme Court distilled a number of principles from a wide range of cases and academic works on constitutional law. Those principles are reproduced as under: 65. [...] I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; V. The Court will not decide a larger constitutional question than is necessary for the determination of the case; VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; VIII.The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; IX. Mala fides will not be attributed to the Legislature, In Mumtaz Hussain6 (SC: 2010), the Supreme Court ruled, A statute is not open to construct as a matter of course. It is open only where the language used in the Statute requires interpretation i.e. where the Statute is ambiguous or bears two or more constructions or is of such doubtful obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. In the perspective of the above guidelines, we were not successfully persuaded that the impugned amendment fails to reconcile with the Constitution; could not be favoured where more than one interpretation is possible; is invalid beyond reasonable doubt; vitiates the letter of the Constitution; prompted by mala fide; uncertain or ambiguous; and, doubtful to a reasonable mind.

10. It would be helpful to know the functions of a PBC which are stated in section 9 of the Act 1973, reproduced below:

9. Functions of a Provincial Bar Council and [Islamabad Bar Council], - (1) Subject to the provisions of this Act and the rules made thereunder, the functions of a Provincial Bar Council and Islamabad Bar Council shall be- (a) to admit persons as advocates on its roll: to hold examinations for purposes of admission; to prepare and maintain a roll of such advocates [of the province [or Islamabad Capital Territory] as well as of each [district]; and to remove advocates from such roll; (b) to admit persons as advocates entitled to practice before the High Court and to prepare and maintain a roll of such advocates: (c) to entertain and determine cases of misconduct against advocates on its rolls and to order punishment in such cases; (d) to safeguard the rights, privileges and interests of advocates on its rolls, including initiation of measures for fair and in-expensive dispensation of justice by the subordinate Courts and tribunals; (e) to promote and suggest law reform; (f) to manage and administer the property and funds of the Provincial Bar Council [and Islamabad Bar Council] and to invest any of its funds; (g) to conduct the election of its members; [(h) to prescribe conditions for the recognition and functioning of, and to recognise and derecognise, Bar Associations]; (i) to perform all other functions conferred on it by or under this Act [and to comply with directions given to it by the Pakistan Bar Council from time to time]; and (j) to do all other things necessary for discharging the aforesaid functions. (2) A Provincial Bar Council [and Islamabad Bar Council] may, in accordance with the rules framed by it, and within the limits of the funds at its disposal for that purpose, make free legal aid available to indigent litigants. The spectrum of these functions is broad and wide. Efficient and effective performance of these functions require that advocates sitting as members of a PBC shall have rich adequate knowledge and competence with sufficient practical experience at the bar. Enrolment of advocates for lower courts and a high court is a heavy responsibility of the members which require personal maturity and professional experience. A PBC's dealing with cases of misconduct filed against practising lawyers is of quasi-judicial nature, involving ascertainment of facts and application of law. Such function, at the tribunal level, is purely judicial, in which two members of a PBC along with a judge of High Court act as judges to decide complaints for which, in addition to knowledge and competence, the need and importance of experience could not be denied. The role of a PBC in law reform is of utmost importance. Law reform is a highly complex and sensitive task requiring identification, understanding and analysis of, and critical thinking about complex legal issues. A law reform initiative tends to have far reaching implications for not only legal system itself but for society at large. For a PBC to play such a vital role, in tandem with a vast array of other stakeholder, indeed require seasoned lawyers having dedicated a considerable part of their lives to the legal profession. Then, the management and administration of a PBC's property and funds earnestly require significant knowledge, and expertise in areas, such as, budgeting and accounting. This function of a PBC has wider and long-term consequences for vast array of services, for example, welfare, training and pupillage, healthcare, of the entire community of the legal practitioners. The conduct of elections of Bar Associations, in itself is not an easy task that could be handed over to inexperienced advocates. Such process is not only technical, but also requires long term experience of having conducive interaction with practising lawyers across the province which could be achieved over a sufficient period of time. Then, the recognition and de-recognition of Bar Associations is no less a difficult enterprise. Such a function, it must be stated without any exaggeration, requires deep insight about the problems and prospects of granting recognition and/or deciding on the issue of de-recognition of a Bar Association in a particular area of a district. Such challenges could be well handled only by experienced hands sitting at the helm of affairs. Indeed, there is an irrefutable assumption that greater experience will be always more efficiently and effectively helpful than lesser experience.

11. Experience is an effective and enduring tool of learning. It is a process in which an individual engages to do something in a real-world set-up. It helps individuals to gain knowledge, develop skills and think critically. Also known as learning by doing, it is an activity of applying conceptual knowledge in a real-life situation. Learning concepts as the starting point is essential. Application of concepts, involving participation in an activity, however, is the next, rather more crucial stride. With direct participation in an activity, one gets an opportunity to learn a range of valuable skills, such as, communication, team work, problem solving and decision making. Experience of partaking in practical activities helps individuals explore their strengths and weaknesses, enabling them to confront challenges. Interaction with other individuals is a valuable experience, offering opportunities of expressing preferences, knowing values and encouraging perseverance.

12. The significance of experiential learning in professional life hardly needs emphasis. Professional experience portrays a practitioner's perspective, a proof of what an individual has achieved hands-on. Experienced professionals perform their jobs more efficiently. Longer experience plays an instrumental role in helping not only oneself but also guiding those having lesser experience, emboldens individuals to cope difficult challenges, make tactical decisions and handle complex situations, Seasoned professionals acknowledge the need of improving their knowledge and skills while critically reflecting on their successes and failures.

13. While experiential education is not a separate or what may be called a discrete academic discipline, in essence, it is a didactic approach utilized across various disciplines, including most notably, in law. Mandatory pupillage for new entrants in the legal profession is a typical example. A robust and well thought out pupillage programme guarantees effective learning for newcomers. It is in the above perspective that the 15 years' experience for election of a legal practitioner to a PBC, a regulatory body, need to be understood in the case in hand.

14. The importance of professional competence on the touchstone of considerable experience could not be underestimated. Needless to say, a legal practitioner having longer experience is expected to have a rich and useful experience of interaction for a proper but practical knowledge of a vast array of factors, ranging from their basic needs and interests, professional and structural problems to ensuring qualitative professional competence, welfare, and infrastructural challenges.

15. Experience as a key requirement for membership of a PBC ensures a certain level of legal knowledge and competence. These requirements, often involving a specific number of years of practice at the bar, help guarantee that elected members have a practical understanding of the legal system and can effectively represent the interests of lawyers across the province. The functions of a PBC's stated in section 9 of the Act, 1973 reproduced above, their significance and the need of experienced advocates for their able and result-oriented performance discussed in greater details in para 10 above, has persuaded us to hold that the enhancement of threshold of experience is duly warranted.

16. Adverting now to the objections of the petitioners. The tests one of the petitioners has described in ground 'H' [reproduced in para 3, above) are not compatible with the above principles. For example, the vires of a law cannot be adjudged on the ground of procedural defect in the process of legislation. Nor could the petitioners show what they call "some other statute" to which the impugned law is repugnant. In the same way, not a single provision of the Act, 1973 (which the petitioners call 'parent Act') was cited that is conflictual with the impugned law. Moreover, the test of 'uncertainty' the petitioner proposes is baseless. The mere fact that the impugned law has raised the threshold of experience to 15 years in no way tends to render the impugned law uncertain. The test of 'reasonableness' though could be linked with the reasonable doubt principle; however, the principle states that a law shall not be ruled unconstitutional unless its invalidity is beyond reasonable doubt. Even then the principle states that if a reasonable doubt arises about a law's invalidity, the court shall go for a favourable interpretation. Learned counsel for the parties were unable to make out any of those naive tests which have no support from even a single precedential authority.

17. So far as reliance on Mustafa Impex (PLD 2016 SC 808) is concerned, the judgment is distinguishable. It addressed fiscal and legal powers of the federal government, holding that policy decisions or subordinate legislation with binding legal consequences must emanate from the Cabinet, not solely from the Prime Minister. However, the present case involves a legislative amendment passed through the proper parliamentary process, not an executive directive or fiscal measure. The impugned provision neither constitutes subordinate legislation, nor does it fall within the realm of budgetary discretion. It reflects a conscious legislative choice to raise the eligibility threshold for membership in Bar Councils, aiming to secure more experienced representation. No procedural irregularity, constitutional infirmity, or conflict with the parent Act has been convincingly demonstrated to warrant striking it down under the standards elaborated in Mustafa Impex or the settled jurisprudence on vires. In Fazlul Quader7 (SC: 1963), it was underlined that the fundamental principle of constitutional construction is to give effect to the intent of the framers of the Constitution. In the Wattan Party8 case [SC: 2006), it was held that the Privatization Commission Ordinance, 2000, was not ultra vires the Constitution, notably the fundamental rights. Learned counsel for the parties could not convince us to how the impugned amendment is in conflict with the above referred two judgments.

18. The petitioner's contention that the impugned amendment infringes his fundamental rights under Articles 4, 18 and 25 of the Constitution has not persuaded us. Article 4 ensures that every citizen shall be dealt with in accordance with law, and as noted earlier, the impugned amendment is a duly enacted legislative measure passed through the prescribed parliamentary process, without any procedural impropriety. Article 18 guarantees the right to enter upon any lawful profession, but the right is subject to reasonable restrictions imposed by law in the interest of the profession itself. The amendment in question does not bar the petitioner or any advocate from practicing law, but merely regulates eligibility for membership in a representative professional body, a regulation squarely within the permissible scope of Article

18. As regards Article 25, which mandates equality before law and equal protection of the law, it is well-settled that reasonable classification is permissible if it is based on intelligible differentia and bears a rational nexus to the object sought to be achieved.9 Here, the classification drawn between advocates having less than fifteen years of standing and those exceeding it, rests on the intelligible criterion of professional experience, which has a direct and reasonable nexus with the effective performance of the functions of a PBC. No element of invidious discrimination has been shown. Therefore, the impugned amendment does not offend the guarantees enshrined in the cited constitutional provisions.

19. For the foregoing reasons and legal principles cited, the instant petition as well as the connected one, being devoid of merits, stands dismissed. MH/131/P Petitions dismissed. 1 Article

4. Right of individuals to be dealt with in accordance with law, etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular:- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do.

18. Freedom of trade, business or profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent:- (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. 2 Mustafa Impex, Karachi v. The Government of Pakistan through Secretary Finance, Islamabad (PLD 2016 SC 808). 3 Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486). 4 Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad (PLD 2006 SC 697). 5 Lahore Development Authority v. Ms. lmrana Tiwana (2015 SCMR 1739). 6 Mumtaz Hussain v. Dr. Nasir Khan and others (2070 SCMR 1254). 7 Mr. Fazlul Quader Chowdhry, supra n. 3. 8 Wattan Party, supra n. 4. 9 Hadayat Ullah v. Federation of Pakistan (2022 SCMR 1691).