CAN AN ADVOCATE PLEAD HIS OWN CASE? By Ch. Bashir Ahmed, Advocate Lahore High Court, Lahore
It has been the practice in the courts throughout that whenever a practicing lawyer has to appear in his own case, he should not be in uniform. In other words, whenever a practicing lawyer appears in his own case, he should not be in uniform but should appear as an ordinary citizen. The precise question which arises for consideration and deliberations is whether the license issued to an advocate by the respective Bar Council is to appear in the courts for all other persons except himself or such permission also includes his person. I have chosen this topic to express my views as an advocate and to solicit views of my learned colleagues on the subject. The issuance of a license to practice law is regulated by the Legal Practitioners and Bar Council Act 1973. Section 22 of the Act which gives an advocate the right to practice is reproduced below for facility of reference. "Right of advocate to practice.--(1) Save as otherwise provided in this Act, no person shall be entitle ent itle d to t o prac p ractic ticee the t he profess pro fession ion of law unless unl ess he is an advoca adv ocate. te. (2) Subject to Article 207 of the Constitution and the provisions of this Act, the rules made there under and any other law for the time being in force (a) any advocate of the Supreme Court or a High Court shall be entitled as of right to practice throughout Pakistan, and to appear, act and plead before any court or tribunal in Pakistan; and (b) any other advocate shall be entitled as of right to practice throughout the Province for which the Bar Council on whose roll his name is entered has been constituted, and to appear, act and plead before any court or tribunal in such Province other than the High Court. (3) No advocate shall appear or act for any person in any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or some other person duly authorized by him to make mak e such suc h app oin tment, tme nt, and such docume doc ument nt has bee n filed file d in such suc h Court Cou rt or Tribunal: Provided that nothing in this subsection shall apply to a Public Prosecutor or any advocate appointed by the State; or an advocate when appearing on behalf of another advocate, if the advocate so appearing has filed a memo of appearance.
Provided further that an advocate may be allowed to appear for an accused in custody on his undertaking to file the document required under this subsection." The language of section 22 does not put an embargo on a practicing lawyer that he cannot appear in the court in his personal case and similarly it does not prohibit him to be in uniform while making such an appearance. The practice in vogue in the courts at present, and at times so required by courts, needs to be deliberated and discontinued for the reasons given in the following paragraphs. (1) On the issuance of a license to practice by the Bar Council such an advocate acquires a right to appear for other persons, in addition and not in exclusion of his vested right to appear for himself which he, like any other citizen, held before obtaining the license to practice. (2) When a practicing lawyer has to appear in the Court in his personal case, he may have some other cases of clients fixed on the same day. It will be very difficult, rather impossible, for him to put off his uniform of an advocate and to put on a civilian dress while making such appearance and to change it again to appear in the cases of his clients. There will neither be sufficient time nor suitable place to make such changes of dress. (3) We have seen many such instances that while arguing some case, the court finds that the advocate, who is of course in uniform, has prima facie committed contempt of the court and gives him a notice there and then to explain his position that why he should not be punished for contempt of court. The offense of contempt of court may be a criminal offence and the advocate has to defend himself in his personal capacity and not as an advocate. In such a situation the said advocate cannot be expected to change his uniform before saying anything in his defense. In some cases th e advocate has been sent to the jail direct from the court which renders the practice of changing uniform impracticable. (4) In support of the point that the advocate while appearing in his own case retains his status as an advocate, I will give a concrete example. I am an advocate of the High Court and I was before a Bench of the Honorable Judges of the Supreme Court in a personal matter. I was in civilian dress as is the practice in vogue. I had given my office address in my petition for leave to appeal. I had put the word "Advocate" after my name. The senior Judge Mr. Justice (Retd) Falak Sher objected to my writing the word "Advocate" after my name in the address, although I had not put that word after my name where I signed the petition. The Honorable Judge directed me to delete the word "Advocate" from my address and I complied with in obedience. But the question remains to be answered whether my license to be an advocate will be treated as suspended when I give my address in some petition before any court and when I appear before the court to pursue that petition. (5) I quote another instance where such a situation had arisen. I along with some other persons was appointed a "Member" of a corporate body by the Federal Government. We all were rendered non functional by the Federal Government by issuing a fresh notification of appointment of other persons be the expiry of our term of appointment,
which under the law could come to an end only if we resign or the Federal Government removes us for any of the reasons enumerated in the specific provision of law. My other co-members asked me to challenge this illegal action of the Federal Government. As I would have been one of the petitioners in such litigation, I was faced again with the same situation whether I should appear before the Hi gh Court in uniform to present the cases of other colleagues or in civilian dress to present my own case, simultaneously. For this reason I could not take up this case which professionally I could do. The above situation gives rise to another important question relating to fundamental rights. Under Article 18 of the Constitution of Pakistan it is my fundamental right to enter upon any lawful profession and the legal profession is definitely a lawful profession. I could not pursue this lawful profession and accept the case of my other colleagues and take up joint proceedings because of the practice in the courts that I could - not appear in uniform in such joint proceedings. In such eventuality, the present practice of the courts comes in conflict with fundamental right to pursue any lawful profession, which is guaranteed by the Constitution. (6) Now we examine this issue from a different angle. A doctor wears a uniform while performing his duty in the hospital but he can also give medical treatment to himself or to some other family member. An engineer wears a uniform at work but can also attend to his personal matters while in such uniform. An army man, police man and in short every other person while in uniform can attend to his personal matters then why an advocate while in uniform cannot attend to his personal matters, including appearance in courts in a personal case, without any deform or reform in his dress. Thus if an advocate is not permitted to appear in uniform, this would also amount to discrimination which is not permissible under the law. As I have stated above, I confront my colleagues in the profession of law to consider the episode and make deliberations to find some workable solution. I would also make a sincere request to the honourable courts to reconsider the present practice of not allowing the practicing advocates to appear in the court in personal matters while in uniform. (I will be available on cell no 03008422691 to answer any query).
