News Analysis: Experts wonder how SC will get feuding politicos to talk to one another

KARACHI: The three-member bench of the SC may be looking for a way to save face or limit its involvement by trying to find space through political consensus and dialogue, say legal experts. They add that there is nothing in any statute or the constitution, including Article 184(3), that gives the court powers to hold a political dialogue.

Discussing Wednesday’s Supreme Court proceedings, lawyer and TV talkshow host Muneeb Farooq says the hearing “gives us the impression that the Supreme Court — or this bench — is trying to find a way for face saving. This may be for a number of reasons, particularly for the way it has been carrying out an exercise of judicial overreach and the way it has not allowed the political parties to become part of the proceedings in the last hearing.”

For lawyer Jahanzeb Sukhera: “This case has been beyond the realm of law for a while now. What we have is a political fight being fought in a courtroom. Willingly or otherwise, the court also finds itself embroiled. [Wednesday’s order] is a counter punch to the ruling coalition, who had sought to slip out of the court’s last order. The government’s strategy was sharp - comply with the court’s order and get the legislature to deny the release of funds.”

However, high court advocate Abuzar Salman Khan Niazi says that “the Supreme Court was bound to take up the matter since its order had not been implemented. It rightly rejected the report of the defence ministry.” He adds that the “the court is showing restraint which the Supreme Court normally doesn’t when its orders are not implemented.”

According to constitutional lawyer Aaminah Qadir: “The Wednesday proceedings were unusual in the sense that the court seems to be trying to limit its involvement. The dialogue between political parties could seemingly give the court a way to not enter the realm of politicians — which it has been brought into via each turn of events. There does seem to be some level of mediation by the courts trying to get parties to agree to a date instead of the court dictating it and then that not being not complied with.”

On whether the SC can build consensus, Abuzar Salman Niazi says that “An attempt to build consensus is not the job of the Supreme Court. Its job is to implement the constitution and ensure it is not violated. In my view, any deviation [from the date] will lead to reviving the doctrine of necessity.”

Barrister Ali Tahir further explains this as: “Article 175(3) specifically provides that no court, including the Supreme Court, has any jurisdiction that is not vested by law. The US Supreme Court gave the ‘doctrine of political question’ which states that certain issues involving constitutional grounds should not be judicially reviewed by the courts even if they have jurisdiction. Rather, they should be left to the politically accountable branches of government. In other words, the political question doctrine rests on the reviewability of subject matters deemed inappropriate for judicial reviews.”

“The SC is trying to do what it is not supposed to do”, adds Muneeb Farooq, who also calls this a “panchayati style of dispensing justice” that is “not the way a constitutional court or apex court works. Whenever there is a political question, the SC should refrain itself from deciding that matter even if it is justiciable. The political question doctrine is not unheard of; in fact, one of the judges in the SC — Justice Athar Minallah — talks about it all the time: that if it is a political matter it should be decided at a political forum — not the SC.” He does add that the political consensus being sought now “could have been achieved if the Supreme Court had allowed the political parties to join the proceedings. The court could have listened to them at least or given more importance to the security report given by the Ministry of Defence. So the deviation we talk about now actually started with the March 1 order which is highly controversial — four judges think it is not an order of the court — but even if we do see it as an order of the court, in the order the SC was clear that the ‘barest minimum’ deviation can be adopted to implement a constitutional obligation.”

On what can possibly be the ‘serious consequences’ the CJ referred to in Wednesday’s proceedings, Jahanzeb Sukhera says that “they appear to be contempt of court proceedings. If these do commence, it will be a long, drawn out process. Show-cause notices will be issued to the entire federal cabinet, they will file their replies. Then the court will frame charges and a trial will commence. After that is done, orders will be passed that can then be appealed. The entire process is likely to last several months.”

Barrister Jugnoo Kazmi explains the contempt process: “The ‘serious consequences’ the court has referred to would come under contempt of court as mentioned in Article 204 of the constitution. There is also a Contempt of Court Ordinance of 2003 and the Supreme Court Rules, 1980 also list out contempt. So, the contempt can be taken as a suo-motu notice by the court or anyone can take a petition to court.”

Abuzar Salman Niazi holds that this matter “should not be taken lightly. The court is being very magnanimous so far with the federal government. The ultimate responsibility of the implementing decision of the Supreme Court lies on the shoulders of the prime minister as he is head of the cabinet and executive branch of government. The money being not transferred as per order of the Supreme Court and the matter being referred to parliament (although the court didn’t say to refer it to parliament) all amount to violation of court orders.”

This view is shared by Ali Tahir who feels that if the government continues to drag its feet further on the issue “then the prime minister, and by automatic effect his cabinet, can be sent home. I find this order to be in complete consonance with the constitution and the law. Once orders have been passed by a court it becomes ‘functus officio’ for that matter, which means it cannot reagitate the issue, unless by way of the narrow scope of review, and must make sure that its orders are implemented.”

Muneeb Farooq does add a reminder though that “the 90-day bar was crossed on March 1 also. When the SC gave the judgement with the direction that the ECP can set up a date with the consultation of the president with the ‘barest minimum’ deviation from the constitution that was the order when the limit of the 90-day limit was crossed so you can say that in a way the doctrine of necessity was — perhaps not in a conventional way but in a roundabout way — allowed to be invoked.” On whether a political consensus is even possible, he feels it will “not be easy to reach a political consensus in such a polarized environment and such a short time.”

Aaminah Qadir also adds that while, “the whole purpose of allowing separate dissolution [of assemblies] envisages that you can have elections at different points in time, there is also a lot of turmoil in the country — so would it objectively be the best time to hold elections in the largest province in the country? While that is a non-legal matter, it does raise a question over why there is such a focus on Punjab because the same dilemma exists in KP so why is KP missing from the orders and dialogue?”