The Fable Of Government Lawyers
Legend has it that the federal and provincial governments have an army of lawyers at their disposal, working respectively in the Offices of the Attorney-General and Advocate-General. One could be forgiven for not knowing this, as the government (both federal and provincial) has a proclivity for hiring private counsel to represent it before courts in Pakistan as well as before international tribunals. This was noted by the Honourable Justice Qazi Faez Isa of the Supreme Court earlier this month in his judgment in Rasheed Ahmad v. Federation of Pakistan, which has become the subject of much debate among the legal fraternity. The judgment in Rasheed Ahmed’s case deals with the appointment of the appellant as Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA), but as is the norm with the evolution of legal principles, the facts of the case pale into insignificance in the face of the law laid down by the judgment. Justice Qazi Faez Isa noticed that in the High Court proceedings below, the Government of Pakistan was represented by “a senior private counsel, who must have been paid handsomely,” instead of a lawyer from the Office of the Attorney-General, which is bound under the Constitution to represent the federal government. Justice Isa uses this fact as the “hook” upon which he goes on to elaborate upon an issue that has hitherto been swept under the rug: the gross dereliction of duty on the part of the Offices of the Attorney-General and Advocate-General.
It is often contended that the law officers of the federal and provincial governments are under-qualified and ill-equipped to deal with issues relating to the interpretation of the Constitution, but Justice Isa rightly points out, “then the question would arise why have incompetent persons 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.” Unfortunately, by merely spending a day in any of the High Courts or the Supreme Court of Pakistan, it becomes readily apparent that the practice of appointing private counsel by the federal and provincial governments is rampant and unchecked. The internationally-hailed jurisprudence of the “Chaudhry Court” under former Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry has also laid bare government corruption, ineptitude, indolence and indifference on a massive scale. Thus, millions of rupees are being spent on both law officers as well as private counsel to guard the democratically elected government from purported overreaching by an unelected judiciary into their domain. These funds are in fact used to provide justifications for laws, policies and executive actions that are at best legally tenuous and morally ambiguous; and at worst completely illegal and at odds with all accepted norms of morality. Justice Isa, therefore, has made it incumbent upon the Attorney-General and Advocate-General, in cases where the government chooses to engage foreign counsel, to henceforth “certify that he and the law officers do not have the requisite expertise in the field and that the engagement of a private counsel who is competent and experienced is required.”
Unfortunately, since this judgment has been released, private lawyers have hardly ceased to represent the government before the courts. As always, implementation becomes a stumbling block. This is even more egregious in cases where Pakistan is impleaded before international tribunals. An often neglected role of the Attorney-General for Pakistan is his responsibility to represent Pakistan before international tribunals such as the Permanent Court of Arbitration (PCA), International Centre for the Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA). Cases before such tribunals are almost wholly outsourced to foreign law firms and private Pakistani counsel. Where Pakistani law firms charge millions of rupees, foreign law firms based inter alia in New York, Washington DC and London charge millions of dollars and pounds. Such cases may indeed deal with, to quote Justice Isa, “some extremely technical law which the Attorney-General… and their officers do not have the requisite ability to attend to,” but it is imperative to note that the government and the Attorney-General in particular have made no effort to recruit among their ranks Pakistani lawyers who are well-versed in international arbitration. The government and the Office of the Attorney-General go into such cases blind, unable to provide legal advice, and in fact cannot even properly oversee foreign counsel attending to these cases. What this means is that in cases such as the Indus Waters dispute with India, the government of Pakistan does not have any legal expert within its own ranks to ensure and safeguard its most vital national interests. This state of affairs is all the more mind-boggling when the Attorney-General is empowered to appoint ten legal consultants to aid him on specialist issues. However, none of these positions has been filled by either an expert in international arbitration, or a young lawyer who could be trained for the future to represent Pakistan in such cases.
The judgment of Justice Isa in Rasheed Ahmed’s case was a long time coming, but to ensure that it is implemented, perhaps the Honourable Justices would want to draw from the jurisprudence of the Chaudhry Court, which also faced many uphill battles to enforce the Constitution and rule of law against a powerful status quo. Of course, this can only be possible if Justice Isa’s judgment is not overruled in review jurisdiction by the Honourable Chief Justice Mian Saqib Nisar, which was the result in the Houbara Bustards case. But perhaps in his greatest stroke of judicial tact, Justice Isa notes that as a High Court Judge, Justice Saqib Nisar, too, lamented “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.” The honourable judges of the Supreme Court thus seem to be on the same page with respect to this issue. There should be nothing holding the Supreme Court back from cracking down on the deleterious practice of employing private counsel. Maybe then, the Offices of the Attorney-General and Advocate-General shall no longer be the subject of myth and fable, but shall come to exist as envisaged in the Constitution.
Previously published in The Nation and republished here with permission.
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