SC faces crucial test of authority

After the PML-N led federal government's apparent non-compliance with its directive concerning the transfer of former prime minister Imran Khan to a private hospital, all eyes are now on the Supreme Court. The Supreme Court is facing a significant test of its ability to enforce its orders during the tenure of Chief Justice of Pakistan (CJP) Yahya Afridi, who had himself issued a contempt notice to Imran Khan in May 2022 over an alleged violation of the court's order concerning the PTI long march. The latest controversy comes at a time when the SC's institutional position has undergone significant changes following the 26th Constitutional Amendment. Lawyers believe the judiciary has faced growing constraints, particularly in the appointment of judges and in its relationship with the executive. The government has also gained a greater role in appointing judges to the superior courts. In the case of the Islamabad High Court (HC), the transfer of judges from other high courts and the subsequent question of their seniority generated a controversy, with CJP Afridi reportedly differing with the executive on the issue. Despite the reservations attributed to the chief justice, the government eventually prevailed and Justice Sardar Muhammad Sarfraz Dogar was appointed IHC chief justice. The government's handling of the Supreme Court's judgement regarding reserved seats for the PTI has also remained a contentious issue. Similarly, the right of appeal for civilians convicted by military courts in May 9, 2023 riots case remains unresolved despite the Supreme Court's intervention. Against this backdrop, lawyers believe the SC now has limited options to challenge the executive on matters involving constitutional and institutional authority, particularly following the 27th Constitutional Amendment. The amendment established the Federal Constitutional Court (FCC), which has the power to summon the record of any case pending before any court if it involves a substantial question relating to the interpretation of the Constitution. The development has further complicated the institutional relationship between the SC and the newly established FCC.   PTI to move contempt petition The PTI has announced that it will file a contempt petition before the SC against the government for failing to comply with the order regarding Khan's transfer to Shifa International Hospital. Barrister Tariq Mahmood Khokhar said the SC's directions were unequivocal. "There is a prima facie case for contempt proceedings," he said, adding that the logical consequences could include the disqualification and removal of members of the federal government's top echelon. Khokhar said the "supreme irony" was that an institution that had been "much maligned and deliberately reduced to impotence and irrelevance by the Sharifs" still retained the capacity to become their nemesis. Another senior lawyer said judges should be certain about the enforceability of their orders before issuing them. "If they believe they cannot enforce an order, then they should not pass it in the first place," he said. He said the responsibility now rested with CJP Afridi. "The buck stops with CJP Afridi. It is now his responsibility, indeed his duty, to restore the authority of the Supreme Court. When a court's authority is undermined, the chief justice has to demonstrate leadership. This is his test," the lawyer said.   Government confident Government circles, however, remain confident that the matter will not pose a major challenge for the executive. A senior functionary told The Express Tribune that the government would file a review petition against the SC's order, arguing that it contained "glaring errors" that needed rectification. According to the official, the government particularly objected to the direction to "shift" Imran to a private hospital. "The word 'shift' has clearly annoyed the government," the official said. He, however, insisted that there would be no compromise on Imran's health. The government is also believed to be confident that the SC is unlikely to take up the contempt matter before September 17, giving it time to pursue its review petition. Recently, the president also approved an increase in the salaries and allowances of SC judges, bringing them at par with the FCC judges. PTI says govt reneged on commitment A senior PTI office-bearer told The Express Tribune that the government had previously committed to transferring Imran Khan to Shifa International Hospital. "We even received confirmation from the government twice on Thursday," he said. The PTI leader claimed that a similar "settlement" had been reached with the government in February. "Now this has been done through the Supreme Court, but unfortunately the government has backed out at the eleventh hour," he said. He confirmed that the party would move a contempt petition before the Supreme Court today (Saturday). It is learnt that PTI leadership, particularly Khyber-Pakhtunkhwa Chief Minister Sohail Afridi, is confident that the contempt petition will be taken up by the apex court.