ISLAMABAD: The top court has taken strong exception to the practice of the federal and provincial departments of hiring services of private attorneys in different cases and paying huge sums from the public purse as their fees.
The Supreme Court has regretted that the governments persist to engage private advocates for no justifiable reason – a practice that must now stop.
It has also directed its office to send a copy of this judgment to the Attorney General of Pakistan (AGP) and all provincial advocates general, the secretary establishment division, the chief secretaries, the law secretaries and the finance secretaries for their information and compliance.
The three-judge SC bench – headed by Justice Dost Muhammad Khan and comprising Justice Qazi Faez Isa and Justice Faisal Arab – has issued a 19-page judgment in the case of the Pakistan Electronic Media Regulatory Authority (Pemra) former chairman Rasheed Ahmad.
Authoring the written judgment, Justice Isa says if the governments do not follow the order 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 judgment says.
The court observes that a private litigant has the right to engage services of any advocate if the advocate agrees to such engagement. However, 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 arises 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.
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.
The court observes that the AGP and the advocate general of the provinces are constitutional office holders and perform very important duties. It is their duty to advise on legal matters to their governments and perform such other duties of a legal character referred or assigned to them.
The judgment observes that the malaise of engaging private counsel is also prevalent in India.
However, India’s Ministry of Law and Justice, Department of Legal Affairs issued an office memorandum on January 16, 2015 stipulating that a private advocate could be engaged only for ‘compelling reason’ and that too only with the prior approval of the department, it adds.
The court also points out that the incumbent Chief Justice Mian Saqib Nisar also took exception to the engagement of a private counsel by the Punjab Housing Department in September 2007 when he was a Lahore High Court judge.
“The learned judge took umbrage at the waste of public resources, particularly when the office of the advocate general had a budget of Rs79 million; therefore, there was no justification to expend an amount of Rs1million on private counsel which was a waste of resources,” it says.
Published in The Express Tribune, February 9th, 2017.