KARACHI: The Sindh High Court (SHC) has ruled that the Karachi Bar Association (KBA) cannot prohibit its members from representing the clients in cases involving lawyers and their family members.
A two-judge constitutional bench of the SHC, headed by Justice Mohammad Karim Khan Agha, said that such a ban violates various constitutional provisions, specifically the fundamental rights to a fair trial, freedom of association and freedom to practice one’s profession.
It also advised the lawyers to file a complaint before the SHC if the KBA harassed or prevented them from handling such cases and the court will review these complaints to determine whether such restrictions violate Article 10-A of the Constitution.
The bench in its order said, “We pass this order in an effort to maintain a balance between the parties. Any member of the Karachi Bar Association who wishes to act in cases involving the murder or rape of a family member of an advocate shall not be prevented from doing so, as under the law they have every right to represent such cases.”
Ban on representing people in cases against member of legal fraternity violates constitutional provisions, bench remarks
It was hearing a petition filed by a lawyer against the KBA and others and the petitioner contended that he was forced to withdraw his vakalatnama (power of attorney) from a bail application for his client since a lawyer was complainant in the case side and petitioner was pressured by the KBA and other lawyers, who were allegedly using their positions to extort money from people by lodging false FIRs.
He also submitted that a resolution passed by the KBA in March last year, barring its members from pleading the cases against the lawyers and their family members, was unconstitutional because it discriminated against litigants who were up against advocates.
The bench in its order also noted that KBA president Amir Nawaz Warraich turned up and acknowledged that the resolution passed by the KBA on March 12, 2024, apparently to violate fundamental rights outlined in the Constitution, particularly Articles 10-A, 17 and 18.
He further emphasised that members of the KBA cannot be prohibited from appearing in such cases.
“If a member of the Bar chooses to act in a case involving other members of the bar, they cannot be restricted or prevented from doing so and shall remain free to act according to their own discretion and the mandates of the Constitution under Article 10-A, which specifically provides that an accused has the right to appoint counsel of their own choice. We place our faith and trust in the words of the President KBA”, the bench in its order added.
It also directed the KBA not to pass any resolution in future restricting any member from acting in a case where other members of the KBA were involved and no coercion or threats must be made against any member who chooses to act for such accused.
The KBA president also assured the bench that if any member of the KBA attempted to pressure or intimidate a lawyer who acts against the March 2024 resolution, the association would take disciplinary action against them.
The bench said, “In view of the above facts and circumstances of the case, and based on the statement of the President of KBA, it is ruled that the Karachi Bar Association (KBA) cannot prohibit its members from taking on cases that involve other KBA members. Such a ban violates the Constitution of Pakistan, specifically the fundamental rights to a fair trial (Article 10-A), freedom of association (Article 17), and freedom to practice one’s profession (Article 18)”.
“The KBA President admitted the unconstitutionality of the previous resolution and committed to ensuring lawyers can act freely. He also promised to take disciplinary action against any member who harasses or pressures a lawyer for handling such a case”, the bench concluded.
