SC takes strong exception to govt engagement of private counsels in cases

 

ISLAMABAD: The three-member bench of the Supreme Court, headed by Justice Dost Muhammad Khan and comprising of Justice Qazi Faez Isa and Justice Faisal Arab, has issued a 19-page judgement in the case of former chairman PEMRA Rasheed Ahmad. The bench on January 23 already rejected plea against his dismissal.

Justice Qazi  Faez Isa while authoring the written judgment said that if the governments do not follow before engaging a private advocate then any statement made before a court or comments/written statement that are filed would not be binding on the concerned government.

“To pay the fee of such private advocate would constitute financial impropriety by the person who does so on behalf of the government, subjecting him/her to disciplinary action in accordance with the applicable law.”

The court observed that a private litigant has the right to engage the services of any advocate, subject to the advocate agreeing to such engagement, and pays for his/her services.

However, it further said that the federal government and the provincial governments have a host of law officers who are paid out of the public exchequer.

“If a government contends that none amongst its law officers are capable of handling cases then the question would arise why incompetent persons have been appointed. In such a scenario the public suffers twice, firstly, they have to pay for incompetent law officers, and secondly, they have  to pay again for the services of competent counsel the government engages," says the verdict.

It also directed its office to send a copy of this judgment to AGP and all provincial Advocate Generals, the Secretary Establishment Division, the Chief Secretaries of the provinces, the Law Secretaries of the federation and provinces and the Finance Secretaries of the federation and the provinces for their information and compliance.

 Justice Isa holds that the public exchequer is not there to be squandered in this manner and the State must protect, “the belongings and assets of the State and its citizens from waste and malversation”.

The court observed that Attorney General for Pakistan and the Advocate General of the provinces are constitutional office holders (Article 100 and Article 140 respectively of the Constitution) and perform very important duties. It is their duty to give advice on legal matters to their governments and perform such other duties of a legal character referred or assigned to them.

The court has regretted that the governments persist in engaging private advocates for no justifiable reason, which practice must now stop. It also directed its office to send a copy of this judgment to AGP and all provincial Advocate Generals, the Secretary Establishment Division, the Chief Secretaries of the provinces, the Law Secretaries of the federation and provinces and the Finance Secretaries of the federation and the provinces for their information and compliance.

 The judgment says that incidentally the malaise of engaging private counsel was also prevalent in India, where there is a similar legal regime with regard to the enactment of rules and how government business is to be conducted (Article 78 and 166 respectively of the Indian Constitution) and in this regard ‘allocation of business’ rules have been made.

The Government of India’s Ministry of Law and Justice, Department of Legal Affairs has issued “Office Memorandum” dated January 16, 2015 stipulating that only for “compelling reason” private advocate can be engaged and this too only with the prior approval of the department.

The court has regretted that the governments persist in engaging private advocates for no justifiable reason, which practice must now stop.

 The court also pointed out that present Chief Justice Mian Saqib Nisar, when he was a judge of the Lahore High Court, had taken exception to the engagement of a private counsel by the Punjab Housing Department in September 2007.

“The learned Judge took umbrage at the waste of public resources, particularly when the office of the Advocate General had a budget of seventy nine million rupees, therefore, there was no justification to expend an amount of one million rupees on private counsel which was a waste of resources. Justice Mian Saqib Nisar (as he then was) observed that the Government was causing loss to the national exchequer by engaging private counsel despite the availability of enough law officers to dispense its work.”