ISLAMABAD: The riddle as to who will represent the federal government before the Supreme Court in the Justice Qazi Faez Isa case was finally solved on Monday as Dr Farogh Naseem stepped aside from the coveted post of federal minister for law and justice and announced that he would be the government’s counsel in the case.

Dr Naseem tendered his resignation, a day before a 10-judge Supreme Court bench headed by Justice Umar Ata Bandial is scheduled to resume the formal hearing of a set of petitions challenging the filing of the presidential reference against Justice Isa.

Soon after the resignation, Justice Isa moved an application before the apex court requesting it to not permit Dr Naseem to represent the federal government in the case. However, the judge was of the opinion, Dr Naseem could appear in person to represent himself.

SC judge moves fresh application, asking court not to permit Farogh Naseem to become government’s counsel

At the last hearing on Feb 24, the apex court had ordered the federal government to engage a counsel, who should be fully committed only to the Justice Isa case, since Dr Naseem could not represent the federal government as a minister.

This is the second time Dr Naseem has resigned as minister. Earlier, he left the high office when the Supreme Court took up a case relating to extension granted to sitting Army Chief Gen Qamar Javed Bajwa in November last year. Then Dr Naseem had resigned to represent the army chief before the court and after the conclusion of the case, he was again appointed law minister.

Soon after resigning from the office, Dr Naseem moved an application for the revival of his licence to practise, which a member has to surrender if he assumes public office. The application has already reached the Enrolment Committee of the Pakistan Bar Council (PBC) consisting of Justice Umar Ata Bandial, senior member PBC Akhtar Hussain and Supreme Court Bar Association (SCBA) president Syed Qalbe Hassan.

When contacted, Dr Naseem explained that on the request of Prime Minister Imran Khan, he presented himself to appear as a counsel in the presidential reference against Justice Isa.

“I will represent the federation in the case and therefore I have tendered my resignation as the law minister,” Dr Naseem explained in a statement.

“I have great respect for the Honorable Judges and the Judiciary,” the statement said, adding as a law minister he always made decisions under the guidance of the Holy Quran, Hadith, Constitution of Pakistan and the law and had never done anything contrary to the rule of law.

“I have no personal vendetta with any person, judge, bar council or a lawyer, not even with Justice Qazi Faez Isa,” Dr Naseem stated, adding he would appear before the honourable court only as a lawyer to assist the court.

Legal observers, however, believe that this time Dr Naseem may not join the cabinet any time soon as he did earlier since the hearing which started in September 2019 may last for quite some time.

Justice Isa’s Application

In the fresh application, Justice Isa alleges that the conduct of Dr Naseem amounts to solicitation, which is specifically prohibited by Rule 135 of the ‘Canons of Professional Conduct and Etiquette of Advocates’ enacted pursuant to the Pakistan Legal Practitioners and Bar Councils Rules, 1976.

Justice Isa contends that Dr Naseem is arrayed as a respondent in this petition and as such he can appear in person to represent himself. When he was appointed law minister ‘his practice by reason of his appointment to any office of profit under the government’ stood suspended (Order VI, Rule 29 of the Supreme Court Rules 1980). The said suspension has not as yet been withdrawn, he contends, saying such suspension cannot be withdrawn when the person specifically states he will be returning to the said office of profit under the government.

The application states that if Dr Naseem represents the government or anyone else in this case it will constitute ‘illegal practice’ in terms of Section 58 of the Legal Practitioners and Bar Councils Act, 1973.

The former minister after having held public office cannot accept engagement ‘in connection with any matter which he has investigated or dealt with while in such office’ as stipulated in Rule 174 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, the application emphasises.

Dr Naseem’s conduct was and is, till his resignation on June 1, 2020, most unbecoming of the office of the law minister, the application alleges, saying he allegedly betrayed the constitution and the law.

The application questiones why Dr Naseem was not engaged months earlier, when the former attorney general Anwar Mansoor had resigned and his replacement was not prepared to enter appearance in this case. Why did Dr Naseem resign just one day before the hearing of the case? There are two obvious reasons for this. Firstly, Dr Naseem wanted to enjoy the benefits and privileges of his office till the proverbial eleventh hour. Secondly, the contesting respondents wanted to spring a complete surprise on the petitioner and his counsel so he/they would not have time to submit objections, let alone to do so properly, the application alleges.

The application highlights that Assets Recovery Unit (ARU) chairman Mirza Shahzad Akbar had ‘engaged’ Dr Naseem to represent him on June 1, 2020, the very day the former minister tendered his resignation.

Dr Naseem also the same day engaged Irfan Qadir to represent him. And, in further perfect coordination, Mr Zial Ul Mustafa Nasim, another respondent, also the same day engaged Sheryar Swati, the application states.

Since these respondents are official respondents it needs to be disclosed how much the government is paying for the services of counsel, the application fears, saying that the official respondents in engaging private counsel have also violated the decisions of this court in which it was held that private counsel can only be engaged ‘for compelling reasons and in the public interest’.

The government’s desire to remove a judge of this court cannot be stated to be in the public interest; on the contrary the public interest lies in preventing the attack on the judiciary and its independence which has been launched, the application emphasises.

There is also no certification from the AG that none of its 145 law officers have the requisite competence to represent the government and that there are compelling reasons and in the public interest to engage private counsel.

Dr Isa beseeched the apex court not to sanction the mockery being made by the respondents of this institution, the Constitution and the laws of Pakistan.

Meanwhile, PBC chairman Abid Saqi has reiterated that he will pursue before the apex court the contempt of court petition, he has moved against former attorney general Anwar Mansoor and Dr Farogh Naseem when the Supreme Court will on June 2 resume the hearing of the Justice Isa case.

The contempt petition was moved after Anwar Mansoor made a certain objectionable statement to which the court took exception and asked the former AG to take it back.

Published in Dawn, June 2nd, 2020