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 entitled to practice the profession of law unless he is an advocate.

(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 such appointment, and such document has been filed in such Court
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 the 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 High 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).