News Analysis: Bill clipping CJP powers may be ruling coalition’s only hope

KARACHI: If passed, the Supreme Court, Practice and Procedure Bill 2023 could provide the basis for an appeal against Tuesday’s SC verdict regarding elections in Punjab. Without that, say legal experts, there is no right to appeal against an SC order.

Lawyer and TV talk show host Muneeb Farooq says that “at the moment, there is no law or provision that allows an appeal into an SC order. The maximum one can do is ask for a review. But a review has a very limited scope and so the success rate is also negligible. However, if the Supreme Court Practice and Procedure Bill, 2023 is passed it does give the right to appeal against such a decision.”

Lawyer Waqqas Mir says that, while that is true, “you can be sure the proposed new law will also be challenged and a lot will turn on how the apex court deals with those legal challenges. Of particular interest to observers will be whether the Supreme Court will find a way to suspend changes mandated by the new law while it adjudicates legal challenges. This is important because the CJP’s power to form benches will be directly in issue. The only certainty is that there are not many easy answers or trouble-free days ahead.”

Explaining the process, lawyer Salaar Khan says that “the president is yet to provide assent to the Supreme Court Practice and Procedure Bill, 2023, but he can only delay its passage for a total of 20 days, after which it will formally be enacted. After that, the law will allow for an appeal of this decision. Of course, the law will likely be appealed. It’s even possible that the president might seek the opinion of the Supreme Court under Article 186. In the absence of that route, a review is still possible. One interesting thing to keep track of will be the fate of that legislation, and a possible future appeal, alongside the timelines provided by the Supreme Court. If funds are already disbursed, and personnel have already been deployed before then, then the Government’s case loses much of its thrust. If, in the appeal, the current order isn’t suspended, then that too will mean that elections will possibly have already been conducted before the appeal is even decided.”

Lawyer Abdul Moiz Jaferii agrees that “if the new law comes into force, which it should in 20-odd days, then this will be one of the decisions that can be appealed. That will be a new controversy as to who makes the bench etc.”

The government could go another way, says lawyer Jahanzeb Sukhera: “I think the federal government will take steps to soften any incoming blows. One possibility is attempting to undo today’s judgment through an act of parliament, which the ruling coalition controls, by making amendments to the Election Act 2017. We will likely see some legislation providing for the possibility to delay the elections. The defence, then, would be that the reason why the judgment was not enforced was that there was an act of parliament stating that the election could be delayed, so the government was justified in following the law. The law will likely be struck down by the courts, but if the intention is to buy some time, it will suffice.”

Speaking about the SC’s verdict giving the election schedule as well as detailed instructions around it, PILDAT President Ahmed Bilal Mehboob says that “It is unprecedented, and I feel unnecessary, [for the Supreme Court] to give a detailed election schedule. The law (Section 57 of the Elections Act, 2017) authorizes the ECP exclusively to give a detailed election schedule after the polling date is fixed by the executive. Even the Constitution authorizes the executive to give the polling date. The Supreme Court has assumed the constitutional and legal roles of the executive and the ECP through this verdict. It has undermined the authority of the ECP. I think it sets an unhealthy precedent for the future also. Furthermore, in another unprecedented act, the three-member bench of the SC has assumed the role of a supervising authority as well which demands compliance reports from the ECP. These things run counter to the constitutional scheme which provides for separation of powers and independence of the ECP.”

Regarding talk about contempt being a possibility if Prime Minister Shehbaz Sharif’s government refuses to follow the court’s orders, lawyer Abuzar Salman Khan Niazi says that “the prime minister can be disqualified if the secretaries of defence, interior or finance fail to implement the court’s order; the PM being the executive head of the government of the day is eventually responsible. If he fails to implement the court order, then contempt is issued. If he still fails, criminal contempt can be filed -- as we saw in Yusuf Raza Gilani’s case -- which can lead to a five-year disqualification.”

Waqqas Mir says that the “PTI could target the sitting PM but I’d be curious how they think that’s sound legal strategy since they have to deal with the same court once in power. [Gilani’s] disqualification didn’t enhance the esteem of the Supreme Court either. Pakistan has an unenviable history of judicial overreach where Supreme Court judgments have used their version of necessity for the ‘greater good’ to disqualify elected politicians or remove them from offices.”

However, any disqualification must follow a process, says Moiz Jaferii: “The consequence of contempt of court has precedence in disqualifications of the chief executive, but that is a process that must first be initiated when the government comes out and clearly declares its intent to ignore the order.” Muneeb Farooq agrees and adds that “there is a difference now: when Yusuf Raza Gilani was disqualified, the SC used to work in unison. Justice Iftikhar Chaudhry had a very strong grip on the other judges in his court but our current SC is bitterly divided with so many faultines -- it will be very hard for this lot of SC judges to disqualify a sitting PM for contempt. Technically, yes, it can be started but it won’t be that quick.”

Another important point added by Muneeb Farooq is that, after the 2014 Mustafa Impex case, the government is not the PM alone; it is the PM and the federal cabinet that is the government -- which is probably why the federal cabinet and not the PM noted its rejection of today’s verdict. So if there is a contempt proceeding, it wont be against the PM but the whole cabinet. And who would want to start proceedings against the 75 or so cabinet members?”

What about the debate regarding the minority-majority decision or whether it was 4:3 or 3:2? Salaar Khan says: “I don’t think it was accurate of the bench to say this decision had ‘nothing’ to do with the previous case. If you look at the petition before the court, it sought enforcement of that specific order. Without clarity on what the majority order was, what is there to enforce? To that extent, [Tuesday’s] short order dismissed all concerns re: that by just labelling the interpretation ‘erroneous’. It’s also important to note that even if the ‘minority’ were the ‘majority’, this wouldn’t help evade the 90-day time limit. If anything, it would revert the position to that following the order of the LHC which did not even make an allowance for the ‘barest minimum deviation’ from 90 days.”

For Muneeb Farooq, the “controversy -- regarding the SC’s order of March 1 about 4:3 or 3:2 -- is still unresolved. The continuing reluctance by CJP not to hold a full court hearing on this is a testament that SC is not only divided by surviving with increasing fault lines.” Abuzar Niazi says that “while the bench formation can be debated, that in my view is irrelevant. Even if 17 judges were to sit, they would have come up with the same verdict: that you are bound by the constitution to hold elections on time”.

Salaar Khan adds that the SC order is “rather cryptic with regard to the position in Khyber Pakhtunkhwa. If the reason for its non-applicability is truly just that the governor KP’s counsel withdrew his power of attorney, then there were certainly other alternatives.”

While Jahanzeb Sukhera adds that the “the decision of this 3-member bench would have most likely been the decision had there been a full court....That being said, the politics of the matter were always plain to see, and its not shocking that the government is saying it will not enforce the judgment....The real question is, will the Supreme Court disqualify the entire federal cabinet, whose collective decision it is to disregard the judgment? Doing so will drastically affect the elections. Is the court willing to have that kind of impact?”