MUSHTAQ HUSSAIN, J.-By our short order dated 24-4-1972. We accepted the Writ Petition and declared the impugned order of the West Pakistan Bar Council dated 28-12-1971, suspending the licence of the petitioner, to be without lawful authority and of no legal effect. We, however, did not pass any order as to costs. The reasons which led us to pass that order are given below.
2. Mr. Yousuf Ali Khan, who is a Barrister-at-Law and an Advocate of this Court, was convicted by a Division Bench of this Court comprising S. Anwar-ul-Haq, J. (as be then was) and Muhammad Gul, J., by their order dated 17-12-1968 under Article 123 of the Constitution of 1962 read with section 3 of the Contempt of Courts Act, 1962. This order was passed in Criminal Original No. 150 of 1968.
3. The Judgment of the Bench contained the following observation also- "The proceedings in this case as well as in the connected case have revealed a serious mental defect in the respondent, having a direct bearing on his fitness to continue to act as an Advocate of this Court, and accordingly a copy of the orders in both these cases shall be sent to the West Pakistan Bar Council for necessary action to consider, in the interest of litigant public, whether the respondent is a fit person to continue on their rolls as an Advocate".
4. Consequent upon this observation, the petitioner was directed to appear before a Committee of the Bar Council on 21-2-71. This Committee referred the case to a Tribunal of the West Pakistan Bar Council.
5. On an application made to the Tribunal on behalf of the Advocate-General for the suspension of the licence of the petitioner under rule 51 of the Legal Practitioners and Bar Councils Rules. 1969 after some hearings, the Tribunal passed an order on 28-12-1971 directing that the operation of the licence I of Mr. Yousuf Ali Khan be suspended till the final deter--mination of the case referred to them. This order was communicated by the Secretary, West Pakistan Bar Council by letter dated 11- 1-1972 to Mr. Yousuf Ali Khan.
6. The petitioner felt aggrieved by this order and filed a petition under Article 98 of the Constitution of 1962 praying that- "The declaration prayed for be granted and the respondent be directed not to proceed with the matter any further. Since irreparable damage would be done to the petitioner if the operation of the impugned order is not suspended meanwhile, it is further prayed that the operation of the impugned order be suspended pending the disposal of this petition."
7. The petition came up for bearing on 14-1-1972 before one of us (Mushtaq Hussain, J.) who admitted the petition to a full hearing and issued notices to the West Pakistan Bar Council, the Advocate-General and the High Court Bar Association, Lahore. Since, in his opinion, the case involved interpretation of various fundamental laws, relating to the rights of the members of the Bar which could have far-reaching consequences of general public importance, he directed that the case be laid before his Lordship the Chief Justice for nomination of a larger Bench. By his order dated 14-1-1972, the learned Chief Justice directed that the case may be placed before this Full Bench.
8. When the case came up for hearing on 19-1-1972, the petitioner adverted our attention to the fact that since the filing of the petition the Supreme Court had convicted him for Con--tempt of Court and had sentenced him to undergo two months' Imprisonment, the natural consequence was that he would not be In a position to practice and the urgency, at least for the time being, disappeared.
The learned Advocate-General and other counsel appearing on that date agreed that the case should be fixed for a regular hearing on a date after two months. The case thus came up for hearing on 11-4-1972 with the result already referred to in the opening lines of this order.
9. The West Pakistan Bar Council functions by virtue of the Legal Practitioners and Bar Councils Act (III of 1965). Clause (a) of section 2 of this Act defines an "Advocate" as one who is "entered in any roll under the provisions of this Act." Clause (g) defines a "Provincial Bar Council" as "the East Pakistan Bar Council or the West Pakistan Bar Council constituted under this Act". Clause (h) defines a "Provincial Roll" as "a roll of Advocates prepared and maintained by Provincial Bar Council under this Act and Clause (j ) defines "Tribunal" as "a Tribunal constituted under this Act".
10. Section 3 which deals with the constitution and incorporation of Bar Councils, lays down that- "(1) There shall be constituted in accordance with the provisions of this Act,-
(i) ---------------------------.
(ii) ------------------------..
(iii) A Bar Council for the Province of West Pakistan to be known as the West Pakistan Bar Council."
The same section constitutes it as a body corporate having prepetual succession etc.
11. Section 5 deals with the composition of the Provincial Bar Councils and provides that- "(1) Each Provincial Bar Council shall consist of fifteen members, of whom-
(b) four shall be persons nominated by the High Court, of whom at least one but not more than two shall be Judges of that Court; and
(c) ten shall be elected by the Advocates (on the Provincial roll) from amongst their number."
12. Section.6 lays down that the Advocate-General of the Province shall be the Chairman ex officio of the Provincial Bar Council.
13. Section 10 lays down the functions of a Provincial Bar Council which include-
(a) to admit persons as Advocates on its roll; to hold examinations for purposes of admission; and to remove Advocates from such roll (b). ---------..
(c) to entertain and determine cases of misconduct against Advocates on its roll and to order punishment in such cases."
14. Chapter VII deals with the Conduct of Advocates and section 36 provides that- "36. Punishment of Advocates for misconduct.-(I) An Advocate on the Provincial roll may in the manner hereinafter provided, be reprimanded, suspended or removed from practice if he is found guilty of professional or other misconduct.
(2) Upon receipt of a complaint made to it by any Court or by any other person that any such Advocate has been guilty of misconduct, the Bar Council shall, if it does not summarily reject the complaint, refer the case for disposal to a Tribunal constituted under section 37 (hereinafter referred to as the Tribunal) and may of its own motion so refer any case in which it has otherwise reason to believe that any such Advocate has been so guilty."
15. Section 37 provides that- "37. Tribunal of Provincial Bar Council.-(1) The Provincial Bar Council may constitute one or more Tribunals and each such Tribunal shall consist of three persons elected by the Provincial Bar Council, of whom-
(a) One shall be from amongst the Judges of the High Court who, are members of the Provincial Bar Council, and he shall be the Chairman of the Tribunal; and
(b) two shall be from amongst the members of the Provincial Bar Council or from a panel of Advocates and persons who have held high judicial and legal office which panel shall be prepared and maintained by the Provincial Bar Council with the previous approval of the High Court;"
16. The resume of the provisions of the Legal Practitioners and Bar Councils Act made above would, inter alia, show that punishment of the Advocates on the roll of a Provincial Bar Council could be meted out only by such Bar Council after the case had been Inquired into by a Tribunal of the said Bar Council appointed under section 37. One of the members of such Tribunal has to be from amongst the Judges of "the High Court" who are members of the Provincial Bar Council. Under section 2(d) "High Court", in relation to a Provincial Bat Council, means the High Court of the Province for which that Council is constituted.
17. The Province of West Pakistan was dissolved by the Province of West Pakistan (Dissolution)
Order, 1970 (President's Order No. 1 of 1970) issued by General Muhammad Yahya Khan on the 30th of March 1970. Article 14 of this Order deals with the High Court and it lays down that- "14. There shall be established a High Court for each of the new Provinces consisting of the Chief Justice and such other Judges as the President may appoint. ---.. "
18. Article 4 of the said Order dissolved the Province of West Pakistan and constituted in its place four provinces to be known respectively as Baluchistan, the N. W. F. .P., the Punjab and Sind. By Article 3(b) of another Presidential Order, that is, High Courts (Establishment) Order 8 of 1970, "a High Court for the Province of Punjab and the Islamabad Capital territory to be called the Lahore High Court with its principal seat at Lahore" was created. It is not denied that Mr. Yousuf Ali Khan is an Advocate practising at Lahore within the jurisdiction of the Lahore High Court created by President's Order 8 of 1970. A Tribunal to entertain and dispose of a complaint of misconduct against him in accordance with section 37 of the Legal Practitioners and Bar Councils Act must consist of at least one Judge of this High Court who is a member of the Provincial Bar Council. It is not denied that the only Judge member of the Tribunal which passed the impugned order was Mr. Justice Abdul Kadir Shaikh, a Judge of the High Court of Sind & Baluchistan and that none of the Judges of the Lahore High Court was either a member of the said Tribunal or presiding over it. On the face of it, therefore, the Tribunal which passed the impugned order was not properly constituted and any order passed by it would not be an order complying with the provisions of the Legal Practitioners and Bar Councils Act, referred to in extenso above. Since the Tribunal is a creature of the Statute, it cannot exercise the powers conferred upon it by the statute unless its composition is in accordance with the statute from which it derives its authority.
19. Similarly, under section 37(I)(b), the other two members had to be from a panel prepared and maintained by the Provincial Bar Council with the previous approval of the High Court. "The High Court" means the High Court of East Pakistan or the High Court of West Pakistan. No such High Court exists at the moment and even the other two members could, therefore, not be said to have been appointed in accordance with the provisions of the Act. The Lahore High Court does not find any mention in the Act and even if therefore, such an approval had been taken, which we know for a fact was not taken from the Lahore High Court, the Tribunal would not be properly constituted.
20. We also find that section 38 which lays down the procedure for these inquiries specifically provides in sub--section (2)(a) that- "The Tribunal shall fix a date for the hearing of the case and shall cause notice of the day so fixed to be given to the Advocate concerned and to the Advocate-General of the Province and shall afford the Advocate concerned and the Advocate-General an opportunity of leading evidence. . ."
As would be clear from section 6 of the Act, the Advocate---General of the Province shall be the Chairman ex officio of the Provincial Bar Council. There was only one Bar Council a functioning in West Pakistan and the Advocate-General of West Pakistan was its Chairman. After its disintegration this officer was replaced by four officers, i.e., the Advocate-General of Punjab, the Advocate-General of N. W. F. P., the Advocate---General of Sind and the Advocate- General of Baluchistan. There was no Advocate-General of West Pakistan who could preside over the Bar Council. There is no doubt left after the perusal of the relevant provisions of the Bar Councils Act that "The Advocate-General of the Province" referred to in section 38 is either the Advocate- General of East Pakistan or the Advocate-General of West Pakistan. There being no Advocate- General of West Pakistan, the statutory requirement of service of notice upon him by the Tribunal could, therefore, not be met with at all.
21. The learned Advocate-General vehemently argued that Article 15 of President's Order 1 of 1970 was enough authority for the continuance of the Tribunal. This Article runs as follows:- "15. Other Courts.-Subject to the provisions of this Order and any order of the competent authority, all civil, criminal and revenue Courts, and all tribunals established under law, which were exercising jurisdictions and functions in the Province of West Pakistan immediately before the appointed day shall, as from that day, continue to exercise their respective jurisdictions and functions and all persons holding office in such Courts or tribunals shall continue to hold their respective offices."
He submitted that the Tribunal appointed by the West Pakistan Bar Council and its personnel continued to exist as it was on the day immediately preceding the dissolution of West Pakistan and the creation of three instead of one High Court made no difference. The fact, however, remains that it refers only to such Tribunals as can function within the four corners of the law which brought them into being. We have already seen that even E the composition of the Tribunal which passed the impugned order was not in accordance with the Act under which it was sought to be constituted and even though if it could continue to exist, it could not exercise any authority or jurisdiction in respect of Advocates of the High Court of Lahore who could be dealt with only by a Tribunal which was composed of a Judge of this Court and two Advocates borne on a panel previously approved by this High Court. Article 15, therefore, does not lend any support to the argument of the learned Advocate-General.
22. It was next submitted by the learned Advocate-General of Punjab that Article 21 required that any question or doubt as to the Interpretation of any provision of this Order shall be resolved by a decision of the President and that such decision shall be final and not liable to be questioned in any Court. The short answer to this submission is that there is no question of any interpretation of the provisions of the aforesaid Order or any doubt about it so far as we are concerned. We do not say that a Tribunal continued by Article 15 of this Order can or cannot exercise its jurisdiction and functions. All that we say is that the Tribunal which passed the impugned order, even though it may have been continued by the President's Order, does not have any jurisdiction with regard to the Advocates of this Court because the Tribunal does not fulfil the conditions laid down in the Legal Practitioners and Bar Councils Act and is not composed of persons as required by that Act. The interpretation of the Presidential Order is, therefore, not involved in this case in the sense in which it is referred to in Article 21 of the said order.
23. We should, however, not be understood as conceding that in a "State" as understood by any norms of law, political science or democracy it is possible for the Executive to wrest from the judiciary its jurisdiction to interpret any law promulgated in the country. The superior Judiciary is clothed with this jurisdiction as a delegate of the Sovereign who, in the r Islamic Republic of Pakistan, is God Almighty Himself exercising His will and Sovereignty through the people of this country. It is hardly possible to deny that the making of laws, their implementation and their interpretation are three separate functions performed by three independent delegates of the Sovereign in respect of its own particular field. The Legislature exercises that delegated sovereign power of the Sovereign to make laws and the Executive exercises it to implement them, the Judiciary does, in the same manner, exercise the delegated power of the Sovereign, to interpret laws made in pursuance of the exercise of the Legislative part of the powers of the Sovereign by the Legislature. The right to interpret and enunciate laws is an inalienable jurisdiction of the superior Judiciary delegated to it by the Sovereign which can neither be curbed nor can it be taken away.
24. State has been defined as "a people organised for law within a definite geographical territory" It is also said that they decided to so organise as they were fed up of the law of the jungle, i.e., might is right. Since the basis of a state is organization of a people for Law, it follows as a corollary that an independent body having the inalienable right to interpret such law must be brought into existence and that its pristine glory should be maintained. The absence of such a body or the curbing of its inherent power to interpret laws would be a negation of the very purpose for which the State is brought into existence and it is too late in the end of the Twentieth Century to say that this power to interpret laws can be taken away by any other organ of State, in any manner, whatsoever.
25. The Judiciary cannot exercise the functions of the Executive or the Legislature and, in the same manner, it is not open to the Executive to exercise the functions of the Judiciary. In fact, if the contrary were to be permitted, it will make the executive "Judges in their own Cause", a position which is not conferred even upon the judiciary.
26. In a democratic Islamic State where God Almighty enjoins that justice be dispensed between man and man and man and State, in all circumstances and at all costs even-handedly, tampering with the basic norm of Dispensation of Justice, namely, a person should not be a Judge in his own cause, is nothing short of permitting the Legislature or the Executive to interfere with Divine Commandments and it would be wholly correct to say that such could not be the intention of the other two organs of State In any form of Government which claims to be based upon the rules enjoined by God Almighty Himself.
27. I may, in this connection, refer to an observation in the judgment delivered by my Lord the Chief Justice of the Supreme Court in Miss Asma Jilani v. .The Government of the Punjab and another (PLD 1972 SC 139), where his Lordship has observed:- "In any event, if a grand-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grand-norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran.
Say, O' Allah, Lord of sovereignty, Thou givest sovereignty to whomsoever Thou pleasest Thou exaltest whomsoever Thou pleasest and Thou abasest whomsoever Thou pleasest. Pt. 3, Ch. 3, Al Imran, Ay. 27).
The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The function Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It Is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it"
"The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction.
This is a right which has consistently been claimed by this and other Courts of superior jurisdiction in all civilised countries and it is on the basis of this very right that this Court itself went into the question of the validity of the Martial Law in Dosso's case. If Muhammad Munir, C. J. In 1958 could feel that the Courts 'on being properly moved still had the right to say whether what had happened was legal or illegal' then what has happened since to take away that right. What was done in 1958 can still be done even though the result might well be different.
Learned Attorney-General does not seriously dispute the correctness of the contention that 'judicial power' is different from 'jurisdiction' and so far as judicial power is concerned it must exist In Courts as long as the Courts are there. In fact, he has been bold enough, and I admire him for his boldness, in characterising these provisions of the Presidential Order No. 3 of 1969, which seek to take away the judicial power itself as 'absurdities'. He frankly concedes that the Courts have and must have the power to determine all questions of their own jurisdiction. It is a proposition so well- settled that no one can challenge it."
"In the view that I have taken of the Presidential Order No. 3 of 1969 that it is a sub-constitutional legislation I cannot but hold that it could not have curtailed the jurisdiction that was given to the High Courts and to this Court by the Constitution of 1962, for, that jurisdiction was preserved even by the Provisional Constitution Order."
28. Any legislation which takes away the power of the Judiciary to interpret laws would, therefore, not be sustainable.
29. We are advisedly not entering into a full discussion of this problem and we are confining ourselves to the observations made in the paragraphs above only because we do not want to be construed as admitting the possibility of legislation which could purport to take away this power from the established Judiciary.
30. We, therefore, find that the Tribunal had no lawful authority to pass the impugned order and the same is declared to be without lawful effect.
31. We are purposely not going into the question whether the West Pakistan Bar Council could validly function in the changed circumstances in respect of the Province of Punjab or the High Court of Lahore because we can dispose of the petition by dealing with it in the limited sphere of the composition of the Tribunal. We have no doubt in our mind that the Legislature will, as soon as possible, consider the question relating to the existence of the West Pakistan Bar Council and take such action In the matter as it deems, expedient and necessary. We may respectfully say that it has already been delayed extra--ordinarily.