KARACHI, Dec 1: Elections to the provincial bar council for its next five-year term shall be held under the un-amended Legal Practitioners and Bar Councils Act, the Sindh High Court declared on Wednesday.

Upholding the validity of the presidential ordinance of Nov 3, which amended the 1973 Act, a division bench, comprising Justices Sarmad Jalal Osmany and Amir Hani Muslim, ruled by a short order and for detailed reasons to be recorded later that it could not be given retrospective effect to extinguish vested rights.

The order ensures that the Sindh Bar Council shall have strength of 42 members instead of 32 as stipulated by the new ordinance. The seats were increased from 38 in 1999 to 42 in 2004 in view of the increase in the number of lawyers under the old formula.

Districts south and east of Karachi shall have nine and six seats instead of six and four as fixed under the new ordinance. The Khairpur and Larkana districts shall have two seats each while the only seat from Mithi, abolished under the ordinance, stands restored. Advocate Zafar Leghari has already been elected unopposed to the seat.

A new date for the SBC polls will be announced by Advocate-General Anwar Mansoor Khan in his capacity as ex officio chairman of the council and returning officer for the polls.

Balloting is likely to be postponed again from December 27 to January 15 because of winter vacations. The nomination papers filed by the candidates will be duly scrutinized and accepted in the meanwhile.

The qualifying duration of legal practice will remain seven years instead of 10 years as prescribed by the new ordinance. Resuming his arguments earlier, SBC executive chairman Abrar Hasan dilated on the concept of vested rights or 'locus potentiae'.

He said a right was vested not only in the contestants who had filed their nominations in pursuance of the election notification issued by the advocate-general in September but also in the SBC members (voters), in general, to elect a particular number of candidates to the council in accordance with the qualification laid down by the (unamended) law.

Advocate Raja Qureshi argued that his client, petitioner-lawyer H.A. Bhatti, acquired a vested right when he filed his nomination papers and deposited the security amount. 'Once a constituency has been called upon to elect its representative, ground rules cannot be changed to the detriment of one or more of the candidates.

The NWFP lawyers have already elected a 32-member provincial bar council under the un-amended law and in accordance with the pre-existing qualification. His client has been rendered ineligible by the requirement of 10 years' standing at the Bar as he has practised law only for seven years' he said.

Advocates Abdul Hafeez Lakho and Ghulam Shabbir Shar, who appeared for petitioner-lawyers Asif Soomro and Liaqat Ali Shar from Larkana and Khairpur, respectively, argued that the ordinance was discriminatory inasmuch as it halved the seats of the two districts and left intact the seats allocated to other districts with the same number of advocates.

They said while under the old law, seats were allocated and could be reduced or enhanced in proportion to the number of lawyers practising in a particular district, the amended law sought to fix the strength arbitrarily and for good.

AG Anwar Mansoor Khan argued that a vested right could accrue to a candidate only after his nomination papers have been scrutinized and accepted. Mere filing of nominations conferred no right, for papers could be challenged for want of qualifications and rejected by the returning officer.

The impugned ordinance was a word-to-word reproduction of recommendations made by the Pakistan Bar Council, the apex regulatory body of the legal profession, and endorsed by the elected vice-chairmen of all four provincial bar councils.

Pakistan Bar Council vice-chairman Rasheed A. Razvi agreed that the impugned ordinance was based on the PBC recommendations but said he was intrigued by timing of its promulgation.

A bill containing identical provisions was pending consideration by the Senate committee concerned and it could have expeditiously been adopted by the parliament. He said legal fraternity was opposed to legislation by ordinance. He said he wrote to Senate leader of the house and PBC member Wasim Sajjad for early passage of the bill.

Deputy Attorney-General Nadeem Azhar Siddiqui said the president has unrestricted power to promulgate an ordinance on any subject within the federal domain, irrespective of pendency of a bill. The only condition under Article 89 of the Constitution was that the National Assembly should not be in session.