The fight for welfare

The Lawyers Welfare and Protection Act, 2023 was passed by the National Assembly on March 29, 2023 – making waves across the country and capturing the attention of lawyers, jurists and activists alike.

The law aims to make provisions for the welfare and protection of advocates. Lawyers are the essential agents of the administration of justice in any functioning society. Their cause and purpose include upholding human rights and fundamental freedoms recognized by national and international law.

The profession of law is charged with the peaceful protection of every public right in the state, of every civil and religious right of the people in the state, and so the security and order of society. Life, liberty and property are in the ultimate safe-keeping of the legal profession.

In 1873, the chief justice of the Wisconsin Supreme Court, Edward G Ryan described the function of the legal profession in a government of law in the following words: “Society has instituted and set apart a body of men, trained to the knowledge and practice of the law; learned in its principles and processes, to interpret the law to society, to guide the business of society under the law, to protect the legal rights of society and its members, to look to the intelligent and faithful course of judicial proceedings, and to stand charged with the holy office of the administration of God’s justice among men.”

Not that long ago, a petition was moved in the Delhi High Court, seeking direction to the Delhi government to consider the enactment of the Advocates Protection Act in Delhi in the wake of the brutal murder of a senior advocate in broad daylight. Similarly, the Rajasthan government also tabled the Rajasthan Advocates Protection Bill, 2023 in the state legislative Assembly for protection of advocates from acts of violence.

Throughout history, we have seen competent individuals who were both lawyers and civil rights activists and firmly believed in the notion of constitutional supremacy coupled with the dispensation of justice for all regardless of colour, caste or creed.

What used to be a profession for the nobles, patricians and aristocrats now seems to be in the grip of pressure groups, mucky bar politics, unparalleled divide in the bar and bench, and self-proclaimed upholders of rule of law and protectors of the sacred constitution. We have seen the disappointing behaviour of these upholders of the constitution over the years (can anyone forget the unfortunate incident when lawyers besieged the Punjab Institute of Cardiology in 2019, resulting in the deaths of three people?). Or 2021 when lawyers ransacked the chamber of Chief Justice Athar Minallah? The Islamabad High Court subsequently suspended the licences of (21) lawyers.

The IHC along with other superior courts of the country while exercising the authority vested in them by the constitution have now become stricter in the test for determination of abrogation of rule of law by any person, be it a group of lawyers or any other such groups carrying out personal vendettas, ultimately trying to undermine the authority of the courts in maintaining rule of law.

The significance of these incidents is that they serve as a stark reminder that the constitution – the supreme law of the land – must always prevail and all must surrender to it.

The new law has triggered equivocal responses amongst the community. Chapter II of the law titled ‘Offence and Punishments’ relates to the same. An act of violence is defined under Section 2(1) (a) of the Act as: “…Any act committed by any person against an advocate with the intent to prejudice, affect or derail the process of impartial, fair and fearless conduct of cases before any court, tribunal or authority by which such advocate is engaged and shall include (i)harassment, coercion, assault, criminal force… (ii) harm, injury, hurt either grievous or simple, or danger to the life of such advocate, either within the premises of the courts or otherwise… (iii) coercion by whatsoever means, by any person or authority to reveal or part with privileged communication or material which an advocate is bound…”

Offences and punishments are governed by Section 3 of the Act. The language of the law states that any person committing the purported act/abetting the commission of the act of violence against an advocate shall be punishable with imprisonment for a term which may extend to three years or fine extending to Rs100,000 or with both. Repeat offenders of the same offence are also addressed in Section 3(2) with harsher fines and sentences.

Over the past few decades, lawyers in Pakistan have been subjected to acts of mass terrorism, murder, attempted murder, assaults, harassment and intimidation, as well as judicial harassment and torture in detention, merely for engaging in their professional duties as lawyers. Section 3(4) additionally fortifies the protection of advocates by making the offences committed under the Act “non-bailable, compoundable with the permission of the court and deemed to be a cognizable offense…”

Section 7 of the law provides a stipulated time frame within which trials are to be concluded within six months, alternatively where the stipulated time frame is not complied with, reasons shall be recorded by the court. Superficially, Section 9 of the A+ct distinguishes itself as the creme de la creme, ‘Privileged communication of advocate’.

Section 9(a) states that “no person, public servant or any authority shall have the power to arrest, detain, investigate any advocate under any law for the time being in force to obtain any document, material or any information pertaining to his professional duties”. Section 9(b) further elaborates by making any violation of Section 9(a) an “act of violence” as defined by Section 2(1)(a) of the Act. Consequently, considering the ongoing turmoil in the country, Section 9 plays its part by providing a blanket immunity to advocates in possession of privileged communication.

This, in turn, will empower advocates to ensure much smoother and streamlined dispensation of their duties without fear or external influence as the upholders, maintainers and protectors of human rights and fundamental freedoms as enshrined in the constitution.

Chapter III of the Act titled ‘Welfare of Advocates’ addresses a much-underrated aspect of the legal profession given the recent economic and financial slump. Section 10 of the Act requires every incorporated company having more than Rs20 million paid up share capital, autonomous body, corporation or statutory authority to engage at least one practicing advocate as its legal advisor on a retainer-ship basis.

Section 13 provides an advocate who is the victim of any act of terrorism or other aggression faced while performing his/her professional duty and whose assailants are unknown entitlement to the ‘shuhada’ package as is admissible to gazetted officers in BPS-18 of the government. The provision of the shuhada package for advocates is laudable as we have witnessed time after time how lawyers became victims of heinous crimes in the line of duty. The federal government has the power to make rules in order to carry out the purposes of the Act.

Substantially, the language and intent of the law, in toto, seems to trump the administration of justice; however, two issues remain unsettled. First, unless rules are promulgated expeditiously, the practicality and objects of the Act seem inefficacious. Second, and more importantly, does the act serve as a double-bitted axe, further intending to sanction and accredit an already turbulent and defiant group of individuals? Or does it irrefutably serve as a touchstone for protection and welfare of advocates?

The writer is a lawyer.