Under the framework of our constitution, the Federal, Provincial and Local Governments are responsible for ensuring the provision of fundamental and legal rights to the citizens of Pakistan. And any violations of this statutory and legal paradigm can be remedied through recourse to judicial review, in which the State or its institutions are a necessary party. In order to defend the State in such cases, the Constitution of Pakistan creates the office of the Attorney General (Article 100) for representing the Federation, and the office of the Advocate-General (Article 140) for representing each respective province.
Under Article 140(1) of the Constitution, the Governor of each Province, on the recommendation of the Chief Minister (Article 105), appoints a person “qualified to be appointed a Judge of the High Court” as the Advocate-General for the said Province. Per 140(2), the Advocate General is responsible for rendering advice on “legal matters”, and for performing “such other duties of a legal character” as may be required “by the Provincial Government”. And similar conditions and responsibilities are entrusted to the Attorney-General of Pakistan, in regards to the matters relating to the Federation.
In terms of sub-constitutional legislation, Office of the Advocate-General, Punjab (as an example) falls within the administrative control of the Law and Parliamentary Affairs Department (under the Punjab Government Rules of Business, 2011), and the Provincial Government is empowered to appoint Additional Advocates-General, as well as the Assistant Advocates-General, in order to assist in representing the Province before respective courts of law. Per Rule 14(1) of the Rules of Business, 2011, the “appointment, removal, resignation and terms and conditions of service” of the Assistant and Additional Advocates-General is determined after seeking approval of the Chief Minister.
The Law Department is also empowered to make its own internal rules, pursuant to which it has framed ‘Instructions for the management of the legal affairs of the Government of the Punjab’. These instructions stipulate, inter alia, the requirements and qualifications for the posts of the Assistant and Additional Advocates-General respectively. Per these instructions, an Additional Advocate-General must be a person of a stipulated age and experience at the Bar, who has “conducted” at least 30 cases before the Honourable High Court. (Note: simply ‘conducting’ cases does not mean that such cases be of much value or conclude in reported judgements. Merely, signing of 30 ‘Vakaltnamas’ at the High Court fulfils this requirement). Similarly, for an Assistant Advocate-General, the requirement (other than age and experience) is that of conducting 20 cases.
Once appointed, these law officers receive a monthly governmental salary, which is no match compared to a successful private lawyer. Furthermore, these officers are prohibited from conducting private practice, and are entrusted, each day, to conduct dozens of cases before the respective appellate courts, concerning financial matters, constitutional issues and policy decisions that have far-reaching impact on the manner in which the Provincial Government functions.
Currently (according to available figures), in Punjab, the Office of the Advocate-General employs 22 Additional Advocates-General, 44 Assistant Advocates-General, along with hundreds of clerical staff members. In all, the Office of the Advocate-General, Punjab places a substantial burden on the National Exchequer, while struggling to meet the overwhelming challenges of a growing litigation culture.
Despite this elaborate framework, the Judges of our constitutional courts continue to, periodically, lament about the quality of assistance provided by the Office of the Advocate-General, and the Government continues to suffer as a result of such assistance. In fact, in recent examples, any time that the Government of Punjab (or its agencies) have faced serious litigation issues (e.g. Signal Free Case, Orange Line, etc.), they have chosen to engage private counsels, at exorbitant fees, because they could not trust the office of the Advocate General to effectively discharge its constitutional obligation of defending the Province. According to most estimates, the National Exchequer has paid millions of rupees to private counsels, in order to supplement the efforts of the Office of the Advocate General.
It must be asked: why are the litigants (and the courts) not satisfied with the performance of the office of Advocate General? Why has there been a practice of engaging private counsels, in ‘bigger cases’, instead of depending on the Advocate General’s office? How can the structure and functioning of this office be improved? And how can the office of the Advocate General attract better talent, which provides the best assistance to the courts and relief to the Provincial Government?
Surprisingly, recruitment to the post of Assistant and Additional Advocates Generals is done without recourse to any open competition or stipulated process of law. There is no provision for applying for a job to become a law officer at the Advocate General’s office, and there is no advertisement or method of soliciting the best talent for this job. As such, the Provincial Government, for partisan considerations, can appoint any individual to these posts, without recourse to a transparent recruitment process, at the expense of the National Exchequer. And currently, an overwhelming majority of the law officers, in Punjab, have been appointed without recourse to the Advocate General himself, on basis of political and personal patronages.
In this day and age, when transparency is the mantra of our jurisprudence, can the office of the Advocate General (or the Attorney General, for that matter), really continue to function at the mercy of arbitrary appointments by political masters? Should a concerted policy or law not be developed, in order to structure such discretion? Of course the government can appoint the Attorney/Advocate General of its own choice; but should the recruitment of other law officers not be advertised, for soliciting the best talent? Can the legal fraternity continue to turn a blind eye, in this regard, simply because it opposes transparency in its ranks?
And why does the government, consistently, feel the need to hire (the same) private counsels in ‘important cases’, instead of relying on the office of the constitutional office of the Advocate General? Does it not trust its law officers? Or has the government deliberately chosen to staff the Advocate General’s office in a manner that allows the government to continue funding the fiefdoms of its favourite private practitioner? Have some of the recent Advocate Generals not resigned, owing to this very issue? Would millions of Rupees (from National Exchequer) paid to private lawyers, not be better spent in improving the salaries and quality of law officers? Would this not help the government to ‘better’ defend all of its cases, instead of just the ‘important’ ones? Would this not empower the office of the Advocate General, and help to fulfil its constitutional mandate?
Can a law officer, being paid a fixed (nominal) salary, without performance increments, really be expected to diligently attend to hundreds of cases each month? Can such an officer, despite best of efforts, be expected to do justice to defending the cause of the government? Can such a model attract the best talent?
There are, of course, certain notably talented individuals working at the Advocate General’s office (against all dictates of logic), who have choses to sacrifice their lucrative private practice, at the altar of public service. And the government, each day, owes them an unpayable debt of gratitude. But their spirit of public service cannot be depended on forever. Their hard work must be rewarded with commensurate incentives. And their efforts must be supplemented by other talented lawyers, recruited through an open and transparent process.
It is time to move away from an ethos of arbitrary personal patronages, and towards systematic entrenchment. It is time to invest in transparent processes, as opposed to select individuals. Only in this way can we hope to imbibe transparency, and embody the spirit of our Constitution.
The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at:firstname.lastname@example.org, or Twitter: @Ch_SaadRasool
This article first published on The Nation