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The Supreme Court has declared government practice of using private lawyers to plead its cases in court as inappropriate. Justice Qazi Faez Isa wrote “This practice must stop,” in a 19-page judgment.

The judgment went on to say that the “[Paying] the fee of private advocate [constitutes] 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,”

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Engaging private counsel

This judgment came on the appeal of the Oct 6, 2015 order of the Islamabad High Court, which had rejected the plea of Rasheed Ahmad, who had been dismissed as chairman of the Pakistan Electronic Media Regulatory Authority (PEMRA) through a notification on April 14, 2014.

When this appeal came up for hearing in front of the three-judge Supreme Court bench, which is headed by Justice Dost Muhammad Khan, the court noticed that the government side was represented by a private counsel, but there was no record showing it had appointed him.

The Supreme court and other Provincial courts have also on a number of occasions raised this matter of the government using private lawyers to conduct its business.

The current Chief Justice of Pakistan Mian Saqib Nisar, when he was a judge of the Lahore High Court, had also questioned the Punjab government need for engaging private counsel by the Punjab housing department in 2007, when it had scores of lawyers working for its law ministry.

The court yesterday pointed out this out and said “The learned Judge [Mian Saqib Nisar] 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.”

Justice Isa also observed that private individuals have right to appoint any counsel, but the federal and provincial governments have large numbers of law officers that are paid out of the public exchequer.

The written verdict put this issue of engagement of private lawyers very forcefully, “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.”

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

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Judgment to stop the practice of engaging private lawyers

The court regretted that governments persist in engaging private lawyers for no justifiable reason, and recommended that the practice 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 court regretted that governments persist in engaging private lawyers for no justifiable reason, and recommended that the practice stop.

The written judgment also said that if the governments do not follow the correct procedures in engaging lawyers then any statement made before a court or comments/written statement that is filed is no longer binding on the concerned government.

In such cases, “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.”

However, it should be noted that PEMRA announced during its 123rd Authority Meeting, on 30 January, said that it would be engaging even more private lawyers to pursue its cases.

The federal governments ‘rules of business’ are conditional to Article 99 of the Constitution, list the ministries and divisions (Schedule I) of the federal government and distribute business amongst its different divisions (Schedule II).

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