ISLAMABAD: A senior counsel has refused to assist the Supreme Court in an Intra Court Appeal (ICA) against the Afiya Shehrbano Zia case over a possible conflict of interest.

Makhdoom Ali Khan was appointed amicus curiae to assist the court in the federal government’s ICA against the 2023 verdict, which had held that judges who either retire or resign cannot be questioned by the Supreme Judicial Council (SJC) over alleged misconduct.

In a letter to the Supreme Court registrar on Saturday, Mr Khan excused from assisting the court, saying his arguments may be viewed as “coloured by a conflict of interest”.

Mr Khan added that he had appeared as a counsel for retired Justice Sayyed Mazahar Ali Akbar Naqvi in his petition challenging the show cause notice issued by the SJC. The petition is still pending before the court.

Cites ‘conflict of interest’ since he represented ex-justice Mazahar in another case

Justice Naqvi, who has since resigned as the Supreme Court judge, is facing allegations of misconduct, and the SJC has decided to continue the hearing of complaints against the judge despite his resignation.

Mr Khan’s letter explained that three of the five judges hearing the ICA were also members of the bench who had heard the ex-justice’s plea.

“In my respectful opinion, there is a distinct possibility of my submissions being viewed as coloured by a conflict of interest,” the letter said, adding in these circumstances, the five judges hearing the ICA may revisit and recall the order appointing him as amicus curiae.

The letter also requested the registrar to place these submissions before the bench when it resumes the hearing of ICA on Monday.

On Feb 12, the five-judge bench hearing also appointed former attorney general Khalid Jawed Khan, senior counsel Khawaja Muhammad Haris, Abdul Moiz Jaferii, and Faisal Siddiqui as amici.

The bench had sought assistance in determining whether pending proceedings before SJC are abated if the judge retires or resigns.

The court also asked if the judge’s resignation — at a time when the SJC is hearing complaints against them — was tantamount to avoiding accountability under Article 209 of the Constitution.

Earlier on Jan 31, a five-member bench, headed by Justice Aminud Din Khan and including Justices Jamal Khan Mandokhel, Syed Hassan Azhar Rizvi, Musarrat Hilali and Irfan Saadat Khan, had agreed to hear the federal government’s ICA moved on Jan 23.The federal government has pleaded that the 2023 verdict, issued by a two-judge bench, including the now-retired Justice Ijazul Ahsan and Justice Munib Akhtar, made SJC “virtually redundant” by making Article 209 inapplicable to judges who either retire or resign.

Published in Dawn, February 18th, 2024

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