NRO review case: A question of precedent

It took a death threat to persuade the Supreme Court to allow the federation to get rid of its lawyer. For most non-lawyers who spent the best part of Thursday morning squatting on the pink carpet in Courtroom 1 – the seats fill up really fast for these morning shows – the question was, what’s the big deal about changing counsel?

The answer lies in the Supreme Court rules of business, which don’t allow parties filing review petitions to change horses midstream unless the court expressly allows them to. The logic is that since reviews are necessarily limited in scope – parties can’t introduce new material or raise new points – it’s best to stick to the people who were there in the first place: not just the original set of lawyers but also the same judges who heard the original petition and handed down the judgment. That way, someone who loses a case can’t bring in a fancy lawyer to reargue the case. While benches in the past have allowed change of counsel, such cases are very rare.

But that’s not why the current change of counsel is creating such a stir within some legal circles: The bigger worry is the reason. As Justices Saquib Nisar and Asif Saeed Khosa pointed out, allowing this change would result in the federation benefitting from the act of an individual and could set a dangerous precedent of encouraging such threats. And former chief justice of Pakistan Saeeduz Zaman Siddiqi is worried that such a decision will show that such threats work and may trigger me-too cases.

But other lawyers can’t see what the fuss was about in the first place. Their argument is that if the point of the entire exercise is to give the federation a fair hearing, why quibble over the technicalities? That too, when the rules themselves empower the court to grant such concessions? And especially when the court’s so anxious – by its own admission – to decide the case on merit and not toss it out on technicalities.

If nothing else, says this lot, it would have saved the court from being subjected to deputy attorney general KK Agha’s repeated mantra of “more time” and “fresh instructions”.





Published in The Express Tribune, April 15^th, 2011.