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Lawyers’ Welfare and Protection Act, 2023 and our Judicial System  By Kashif Mirza

Byadmin

Jul 11, 2023

The writer is an

economist, anchor,

analyst and the

President of all

 Pakistan Private

Lawyers’ Federation

Lawyers Welfare and Protection Act, 2023 is enacted to provide welfare and protection of advocates through this legal framework and for the matters connected therewith or incidental thereto. The Lawyers Welfare and Protection Act 2023 is a crucial legislation aimed at providing security and protection to advocates and legal professionals in Pakistan. The act was enacted in response to the rising incidents of violence against lawyers, which often undermine the fair, impartial, and fearless conduct of legal proceedings before courts, tribunals, and authorities. The profession of lawyers plays a pivotal role in the administration of justice, the defense of human rights, democracy, and the rule of law. However, the recent incidents of assault, criminal force, intimidation, and threats caused to advocates, while they discharge their professional duties, have reached alarming heights. The Act defines in detail the categories which fall within the four corners of an ‘act of violence’ against an advocate. The offense of committing an act of violence against an advocate is punishable for a term of three years or a fine which may extend to One Lakh Rupees or both. This has also resulted in law and order situations and deficiencies in rendering professional services by advocates to their clients apart from causing a deep sense of fear in the minds of advocates. In order to protect advocates from the said assaults, criminal force, intimidation, and threats, it is necessary to enact legislation to protect advocates while discharging their professional duties. In this regard, a Bill namely “The Lawyers Welfare and Protection Elll, 2023” has been prepared and passed wherein, a mechanism has been devised to ensure that the advocates can render professional services without fear or external influence for the ultimate cause of the administration of justice and the rule of law. This law is also in consonance with the various UN General Assembly Resolutions and in line with the Eighth United Nations Congress held in September, 199O at Havana, Cuba, where it has adopted the “Basic Principles on the Role of Lawyers” which provides that the Governments shall ensure that layers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. If a person gets convicted under Lawyers Welfare and Protection Act, 2023 for the second time for a subsequent offence he may get imprisonment for a term of five years and a fine of Two Lakhs Rupees. The act of violence against a lawyer is nonbailable. Special Courts are to be established under this Act for trying offenses. The Lawyers Welfare and Protection Act, of 2023 talks about the welfare of advocates which includes the right of having legal advisory, the legal remedy for facing any difficulty in obtaining the financial facility, shahada package. The new law has triggered equivocal responses in 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…”. Offenses 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 a fine extending to Rs100,000 or with both. Repeat offenders of the same offense 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 offenses 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 blanket immunity to advocates in possession of privileged communication. This, in turn, will empower advocates to ensure a 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 ‘shahada’ package as is admissible to gazetted officers in BPS-18 of the government. The provision of the Shahada 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. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law for the time being in force. The provisions of the Code, to the extent not inconsistent with anything contained in this Act, shall apply mutation mutants. 

The Lawyers Welfare and Protection Act 2023 is a significant milestone in ensuring the safety and security of advocates and legal professionals in Pakistan. By imposing strict punishments for acts of violence against lawyers and establishing a designated court, the act promotes a fair and just legal system. Its enactment creates an environment where legal professionals can carry out their duties without fear, guaranteeing an impartial, fair, and fearless legal process in Pakistan. 

A true picture of the state of the justice system and the administration of justice will emerge from the functioning of the courts and the number of cases pending.

The law aims to make provisions for the welfare and protection of advocates. But, indeed, 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 safekeeping of the legal profession. According to the World Justice Project Rule of Law Index 2022-23, which measures whether ordinary people can resolve their grievances through the social justice system, Pakistan’s worst score in the world, and worldwide is 139. Unfortunately, in the Pakistani case, the performance of our judges has always been in demand. There are many reasons for this malpractice but one of the most important reasons is the Pakistani Justice System for this long-standing trend. Fifty-three thousand cases are pending in the Supreme Court, about 300,000 and five high courts, and about 2.8 million cases in four provinces and the state capital, according to the Pakistan Law and Justice Commission. Over the past five years, the number of cases pending in the Supreme Court has more than doubled to reach the highest level in the last 20 years. In 2006, the number of pending cases was 13,724. Today that has tripled. 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.” 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 color, caste, or creed. Substantially, the language and intent of the law, in toto, seem 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 the protection and welfare of advocates? Now it’s a time, that Lawyers must focus on speedy trials. There are about three million cases pending with the courts currently. The legal community should focus on pursuing the cases effectively without making their clients wait for years and become the torchbearers of justice.  There is an urgent need of judicial reforms in the Judicial System of Pakistan for speedy trial and to eliminate backlog of the pending old cases in Pakistan. The current system of governance in Pakistan is exploitative because it unjustly rewards the elite with excessive economic benefits by losing the poor contrary to Islamic law and social norms, which require the redistribution of wealth from the rich to the poor. It denies the justice of the weak against the crimes of the powerful in society. There is a need for an ideal social justice system and urgent policy action to be taken to ensure that Pakistan becomes a Muslim welfare state in its true sense when the legal, social, and economic exploitation of the poor and weak ends, enabling them to lead a dignified, God-given talent, and see their potential. We are talking about the independence of the judiciary and the strengthening of the administration of justice in order to provide justice and freedom for citizens. Only an effective and efficient justice system can ensure the enjoyment of basic rights by the average person. The level of civilization in a society can be judged by entering their prisons. A true picture of the state of the justice system and the administration of justice will emerge from the functioning of the courts and the number of cases pending. Pakistan’s post-colonial legal system is old-fashioned, facing modern challenges and failing to meet the country’s growing needs for global integration, reliable trade transactions, and justice for the common man. A framework for legal and judicial reforms is urgently needed for speedy trial and to eliminate the backlog of pending cases to ensure internal peace and harmony.

By admin

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