ISLAMABAD: The Supreme Court’s judgement seeking an end to hiring of private counsel by the government had immediate effect on Thursday when a prominent lawyer withdrew himself from representing the federal and provincial governments in two cases.

Senior counsel Makhdoom Ali Khan recused himself from pleading an appeal of the Sindh government over appointment of an adviser to the chief minister. He also wrote a letter to Interior Secretary Arif Ahmed Khan expressing his inability to represent the interior ministry in the Quetta Inquiry Commission case.

In the judgement authored by Justice Qazi Faez Isa, the Supreme Court has held as improper the practice of engaging private advocates by the government to plead their cases and called for an immediate cessation of the practice.

On Thursday, the provincial government’s appeal against the Nov 22, 2016 Sindh High Court judgement of declaring illegal the appointment of Barrister Murtaza Wahab as law adviser to the chief minister was taken up by a Supreme Court bench headed by Chief Justice Mian Saqib Nisar.

Mr Khan drew attention of the court to the judgement of Justice Isa in which he had imposed almost a ban on the government from retaining private counsel. He termed the judgement flawed but said that he would not like to go into that issue.

Justice Faisal Arab, a member of the bench, observed that it was not the intention of the judgement. But the counsel said that till such time that the intention to the contrary was made explicit through another judgement, it would not be proper for him to represent the Sindh government.

Chief Justice Nisar said that he had not yet gone through the judgement and observed that the verdict might not be a conclusive order since some review might come.

But the counsel cited a paragraph from the judgement in which the incumbent chief justice as a judge of the Lahore High Court had taken exception to engagement of a private lawyer by the Punjab Housing Department in Sept 2007.

The chief justice said that if the Sindh government had obtained a certificate from the provincial advocate general then perhaps the counsel might appear in the case. But Mr Khan stated that he did not want to be embroiled in any controversy and since he was not interested in government work, he wanted to recuse himself.

The lawyer “deprecated the selective approach adopted in the judgement” and said that while the judgement had targeted litigators it had conspicuously failed to mention transactional lawyers.

“This cannot be coincidental,” he said, adding that government contracts worth billions of rupees were handled by private counsel but nothing had been said about it.

He also quoted from a note of dissent by Justice Roberts in the United States Supreme Court’s decision of 1944 in the Smith versus Allwright case that judgements should not be written like “restricted railroad tickets. Good for this day and train only.”

Later Mr Khan wrote a letter to the interior secretary in which he cited excerpts from the judgement and stated that he must abide by it.

“It is therefore not possible for me to continue to appear for the interior ministry in the Quetta Inquiry Commission case. I accordingly recuse myself,” Mr Khan said and added that he would receive no fee for services rendered so far.

“My associate counsel will also not be appearing in this case and will not bill either,” the counsel said, adding that the expenses already incurred by him for attending to the case were hereby waived.

“Likewise, all work done so far may please be regarded as pro bono,” the letter concluded.

Makhdoom Ali Khan is defending the interior ministry in the Quetta Inquiry Commission case. He had submitted a reply to the court wherein he had termed the findings of the one-man commission comprising Justice Isa on incidents of terrorism in Quetta as “unnecessary, uncalled for and violative of natural justice”.

In the letter, the counsel said that the judgement banning hiring of private advocates by the government had held that only cases involving “complicated questions of the constitution or some extremely technical points” in which the “attorney general or the advocate general... do not have the requisite ability, can be entrusted to outside counsel”.

In such cases, the officials must “certify” that they “do not have the requisite expertise,” the letter stated. To call upon the first law officer of the federal or provincial government to certify his incompetence is an invitation to embarrassment, he added. “I cannot advise you (secretary interior) to make any such request,” the letter stated.

Published in Dawn, February 10th, 2017