ISLAMABAD: A Supreme Court judgement has declared ‘improper’ the government practice of engaging private counsel to plead their cases in court.

“This practice must stop,” wrote Justice Qazi Faez Isa in a 19-page judgement.

“[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,” cautioned the verdict.

The judgement came in an appeal on a different matter — it related to a Oct 6, 2015 order of the Islamabad High Court rejecting the plea of Rasheed Ahmad, who was dismissed as chairman of the Pakistan Electronic Media Regulatory Authority (Pemra) through a notification on April 14, 2014.

When the appeal came up for hearing before a three-judge Supreme Court bench, headed by Justice Dost Muhammad Khan, the court noticed that the government side was represented by a private counsel, and that there was no record to show that the government nominated him.

Justice Isa deplores additional burden on national exchequer, questions employment of ‘incompetent persons’

A private litigant has the right to engage the services of any advocate, but the federal government and the provincial governments have a host of law officers who are paid out of the public exchequer, wrote Justice Isa.

If a government contends that none amongst its law officers are capable of handling cases, then we must ask why incompetent persons have been appointed, the verdict questioned.

In such a scenario, the public suffers twice; first, they have to pay for incompetent law officers and then they have to pay again for the services of competent counsel.

The public exchequer is not there to be squandered in this manner, the verdict regretted adding the Supreme Court had observed in 2012 Muhammad Yasin case that the State must protect, “the belongings and assets of the State and its citizens from waste and malversation.”

This court also took strong exception to the Sindh government’s engagement of the services of a private counsel for the 2015 Mahmood Akhtar Naqvi case instead of the “advocate general and law officers from his office.”

The high courts of different provinces and the Supreme Court of Azad Jammu and Kashmir have also expressed concern over the government practice of engaging private counsel from time to time.

The rules of business of the federal government, made pursuant 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).

The Information, Broadcasting and National Heritage Division, the respondent in the sacked Pemra chief’s case, was listed at number 16 of this schedule and none of the subjects mentioned there under permitted the engagement of private counsel, the judgement clarified, adding that legal proceedings and litigation concerning the federal government — except for litigation concerning the revenue division and attorney general and other law officers of the federation — are mentioned under the ‘Law, Justice and Human Rights Division’.

“There is nothing on record to show that [the respondent] had been permitted by the law division to engage a private counsel, let alone the reason for doing so,” the judgement regretted.

Incumbent Chief Justice of Pakistan Mian Saqib Nisar, when he was a judge of the Lahore High Court, had also taken exception to the engagement of a private counsel by the Punjab Housing Department in September 2007. At the time, Justice Nisar had observed that the government was causing losses to the national exchequer by engaging private counsel, despite the availability of law officers to do the work.

Published in Dawn February 9th, 2017