ROLE AND FUNCTIONS OF THE ADVOCATE-GENERAL

ROLE AND FUNCTIONS OF THE ADVOCATE-GENERAL <!--[if gte mso 10]> ROLE AND FUNCTIONS OF THE ADVOCATE-GENERAL By Syed Shabbar Raza Rizvi, Advocate-General Punjab, Lahore The appointment of Advocate General is a Constitutional and it is made almost in all countries under all kinds of Constitutions. In the Sub-Continent of India, first time this office was created under 1935 Act. Advocate-General used to be appointed both for Federation as well as for the Provinces. The appointment of the Advocate-General for the Federation used to be by the Governor-General and for the Provinces by the respective Governors in their individual discretion/judgment. In united Punjab, Mr. Ram Lal was appointed as first Advocate-General followed by Barrister M. Saleem, in 1937 and 1938 respectively. This system was followed till 1956 Constitution was enforced in Pakistan. Under the said Constitution Attorney-General was provided, for the Federation and the Advocate-Generals for the Provinces. After the partition, in both countries, the appointment is made by the President/Governor on the advice of the Prime Minister or the Chief Ministers as the case may be. Under the Government of India Act, 1935, relevant Articles were 16 and 55, for convenience only Article 55 of the Government of the India Act, 1935, is reproduced which is as under:-‑ "55.--(1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of a High Court, to be Advocate-General for the Province. (2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may from time to, time be referred or assigned to him by the Governor. (3) The Advocate-General shall hold office during the pleasure of the Governor and shall receive such remuneration as the Governor may determine. (4) In exercising of his powers with respect to the appointment and dismissal of the Advocate-General and with respect to the determination of his remuneration, the Governor shall exercise his individual judgment." Without referring to the provisions of previous Constitutions of Pakistan, I straightway refer to Article 140 of the 1973 Constitution (current) which reads as under:-‑ "140. Advocate-General for a Province.--(1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate-General for the Province. (2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character as may be referred or assigned to him by the Provincial Government. (3) The Advocate-General shall hold office during the pleasure of the Governor. (4) The Advocate-General may, by writing under his hand address to the Governor resign his office." The most important distinction in the two Constitutions is that under Article 140 the appointment/dismissal is done on the advice of the Chief Minister, whereas, it used to be done under 1935 Act in discretion of the Governor. Functions of Advocate-General by and large remain the same. They are mentioned in Clause (2) of Article 55 and Article 140 respectively. The only difference is that under Article 55 they used to be assigned or referred to him by the Governor, whereas, under Article 140, they are assigned or referred to him by the Provincial Government. These duties/functions include advice to the Provincial Government/Chief Minister and performance of such other duties of a legal character which may be referred to him by the Provincial Government. As far as performance of these duties/functions are concerned, they are left to the Advocate-General himself. The reader may note that in Clause (2), express duty of the Advocate-General is to advise to the Provincial Government. All other duties/functions, including representation in the Courts, is covered by the expression, "to perform such other duties of a legal character". With the passage of time, his role is reduced to represent Government or do advocacy in the superior Courts. Apart from Article 140, Article 111 is also provided in the Constitution under which the Advocate-General has right to sit, speak and otherwise take part in the proceedings of the Provincial Assembly and may also be named a member to any Committee of the Assembly, however he has not been conferred a right of vote under 1935 Act also had similar provisions in Article 64 of the Act. Under 1935 Act, as well as under all previous Constitutions of Pakistan the Advocate-General has legislative functions. This role of the Advocate-General though still exists in the Constitution but hardly anyone knows that. His role is provided in the working of Provincial Assembly because at times, legislation is also subjected to public criticism and judicial 'scrutiny. At such occasion, it is the Advocate-General who can defend such legislation/Government professionally. For example it is Mr. Ashcroft, the Attorney-General of the U.S.A., who has been defending controversial enacted legislation since 11-9-2001. Instructions for the management of legal affairs of the Government of the Punjab were incorporated in the Law Department Manual of 1938. Under Instruction No.1.1 the Legal Remembrancer (Secretary) was made head of the Law Department (Ministry) except in such matters which are assigned to the control of the Advocate-General either by the Statute or by the order of the Governor. The same situation continues to prevail. The manual also contains duties of the Advocate-General in Instruction No.1.6 which are as under:-‑ 1.6. His duties are as follows:-‑ (a) The Advocate-General will advise on any case relating to the initiation of criminal proceedings by the Government or executive action by the Punjab Government under the law, and on any other legal matter that may be referred to him by the Punjab Government or the Legal Remembrancer. It will also he his duty to advise upon any matter on which his advice is required by the Governor acting in his discretion (for further details see Chapter 2 following): (b) He will represent the Government or will arrange for the representation of the Government, at all stages in all criminal cases in the High Court, and in quasi-criminal matters such as cases under the press law, cases of habeas corpus and extradition cases. The Punjab Government may direct that, owning to the special importance of the case, the Advocate-General shall himself represent the Government. (c) He will appear, or arrange for the appearance of counsel in the following civil cases: (i) Cases in the High Court to which the Punjab Government is a party, or cases relating to the affairs of the Punjab Government to which the Secretary of State is a party. (ii) Cases in the High Court to which officers serving under the Punjab Government are parties, and which the Punjab Government has decided to conduct on their behalf. Instruction No.1.1 clearly shows that though the Law Secretary is Head of the Law Department but in certain matters which are assigned to the Advocate-General under the Constitution and Statutes, the Advocate-General acts independently. For example, functions provided in Article 111, Legal Practitioners Act, C.P.C., the Supreme Court Rules etc. It may be pertinent to point out with distress that under Instruction No.1.8, the retainership of Advocate-General under Manual was fixed as Rs.2,500 per month, it remains same till to-date Present Government of Punjab has announced increase in tariff of fees and other facilities of the Advocate-General and other Law Officers. This improvement is going to take place after 43 years i.e. the present tariff was fixed in 1960 For assistance to the Advocate-General under Instruction No.1.18 Assistant to the Advocate-General was to be appointed who would discharge such duties as the Advocate-General would assign to him. His basic pay was Rs.600 per month. Apart from that, the Advocate-General was competent to engage any private counsel in criminal and civil cases. With the passage of time, expression "Assistant to the Advocate-General" has now become "Assistant Advocate-General. In 1960, the office of Additional Advocate-General was also provided. It is instinctive for a person to appoint/engage the best lawyer to defend and represent his cause, however, this consideration is not being adhered to whenever occasion arises for the appointment of Law Officers. The list of functions/duties of the Advocate-General does not end here, in fact, he has many other functions under different laws/statutes. An overview of the same is handed down as follows: (i) Under High Court Rules and Orders, copy and notice is given to the Advocate-General in all criminal matters including appeal and bail matter. (ii) Under Supreme Court Rules, Order IV, the Advocate-General shall have precedence over all other advocates and senior advocates in the Court. Under Order XXVII, the Attorney-General is to conduct the proceedings in contempt cases, the Advocate-General performs the same function in the High Court.-In this capacity he acts as Law Officer of the Court. (iii) Under Legal Practitioners and Bar Councils Act, 1973, the Advocate-General is the Chairman of the Punjab Bar Council. The functions of the Council are to admit persons as advocates on the roll, to hold examination for the same, to prepare and maintain a roll, of such advocates of the Province and to admit persons as Advocates of High Court. To entertain and determine cases of misconduct, to safeguard the rights etc. of advocates, to suggest law reforms, to conduct the election of its Members and arrange free legal aid to the indigent litigants. (iv) Under sections 91 and 92 of Civil Procedure Code, cases of public nuisance and public charities are instituted and conducted by the Advocate-General. (v) Under Order XXVII(A) of the Civil Procedure Code if in a case of any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General and to the Advocate-General. In this role, he does not represent a party, instead, he assists Court earnestly to the best of his professional abilities as its Law Officer. (vi) Under section 495 of Criminal Procedure Code, the Advocate-General acts as a Prosecutor and under section 265-L of the same Code the Advocate-General may refuse to prosecute against the accused. (vii) Under the Mental Health Ordinance, 2002 the care of properties of persons who are mentally retarded are looked after by the Advocate-General particularly litigation relating to such property is conducted by the Advocate-General. Above survey of different areas of duties/functions of the Advocate-General is sufficient to demonstrate its pivotal role/importance in the Government and administration of justice. However, it may be reiterated that this Government office is not fully introduced and known to the public, this effort is made in the above context.