SC order sparks debate on political space

Imran's hospital transfer fuels settlement speculation and govt concern

RAWALPINDI:

The Supreme Court's order directing the federal government to shift former prime minister Imran Khan from Adiala Jail to Shifa International Hospital within two days has taken the political and legal circles by surprise, triggering debate over whether the development signals the opening of political space for the PTI after what has been described as a three-year period of political exclusion.

A number of political and legal analysts believe that the possibility of some kind of settlement with Imran Khan cannot be ruled out, arguing that such an order would otherwise be difficult to explain in the prevailing political circumstances.

The development has also prompted speculation over whether Imran could agree to narratives regarding the creation of new provinces and formation of a national government for a certain period.

The ruling PML-N, meanwhile, appears confused over the development, with a number of senior leaders questioning the legality of the Supreme Court's order.

PML-N Senator Nasir Butt, a close aide of former prime minister Nawaz Sharif, has gone so far as to describe the development as a conspiracy against Nawaz. Visibly upset over the development, Butt also predicted that Imran Khan would eventually be shifted from the hospital to his home.

Law Minister Azam Nazeer Tarar has announced that the federal government would file a review petition against the Supreme Court's order. He also questioned the court's direction to shift Imran Khan to a private hospital rather than a government hospital.

A senior law officer also questioned whether the government would be required to allow all prisoners to receive medical treatment at private hospitals. He further raised serious objections to the maintainability of the petition in which, he said, certain directions had been issued.

However, senior lawyers believe that following the 27th Constitutional Amendment, the authority of the superior judiciary to implement judicial orders relating to Imran Khan has become too weak.

They argue that if the order is complied with immediately, it would be interpreted by some as an indication that the ruling had been passed with the consent of "certain quarters". At the same time, they said, the ultimate fate of any settlement with the PTI would depend on Imran Khan's future conduct.

Former additional attorney general Tariq Mahmood Khokhar described the judicial direction to shift Imran Khan to a hospital as "a moment of collective sigh of relief from a nation and its diaspora".

He said the development "does not portend well for the Sharifs and the Zardaris" and is also evidence that "all is not well with the unholy trinity between the extra-constitutionalists, PML-N and PPP".

He said the cause of the development "may well be a belated realisation that Form 47 solution is no solution". "It has not extricated Pakistan from its existential crisis. Nor is it likely to deliver more provinces," he said.

Khokhar said informed observers, both in Pakistan and abroad, regarded Pakistani jurisprudence as "political, praetorian and contingent on the extra-constitutionalists".

"It is inconceivable that such orders can be passed without their concurrence," he said, adding that they viewed Imran's shift from Adiala Jail to Shifa hospital through judicial orders as "a fig leaf of legitimacy".

"Be that as it may, there is a huge shift taking place across Pakistan. The momentum of this change is moving in Imran Khan and the nation's way. Converse is true for the Houses of Sharif and Zardari."

He added that their "empowerment was doomed from the beginning" and that they now stood "wholly exposed and discredited on political, moral, constitutional and democratic grounds". "A transformation had begun. It may culminate in the formation of a national government including the PTI," he said.

Former federal minister Fawad Chaudhry welcomed the development, saying the SC's order could lead to "a new era of sound political developments". He said the development also indicated that government-PTI negotiations were moving in the right direction.

"Hope the process will have establishment's nod and will be concluded in a way that will be beneficial for Pakistan," Chaudhry said. He stressed the importance of giving political opponents space and creating an environment for dialogue on complex issues, including the creation of new provinces.

"Imran Khan's support for such dialogue is imperative," he added.

Former law officer Waqar Rana described the order as "a very positive development", saying the court had, in fact, only upheld the Constitution and rights that had not been respected in the recent past.

"I trust there is a realization that if Pakistan is to be taken out of its economic and political problems then meaningful reforms are necessary," Rana said.

"It is time to bury politics of exclusion—changing politicians from time to time. The country and its issues demand politics of inclusion where all forces work in unison to lead Pakistan towards development and growth," he added.

Rana said Pakistan should look at the experiences of countries including Turkey, Indonesia and several South American countries that had changed their political paths. "I trust Imran Khan had enough time to reflect on his life and politics, learnt some lessons," he said.

He also called for judicial reforms, saying that while undertaking reforms, "the judiciary needs to be restored to pre-18th Amendment position". "Judges must not be appointed by judges and judiciary must also be free of the political vote," he added.

However, a senior lawyer criticised the Supreme Court's order and questioned the wider implications of the proceedings. He said the report submitted by prison authorities regarding Imran's health was, in itself, "an indictment of the judicial system—particularly the SC and the Federal Constitutional Court".

"The inordinate delay contributed to the deterioration of his health. Who, then, is responsible? Should the judges hearing the matter today not have acknowledged this undeniable reality?" he asked.

According to the senior lawyer, the most alarming aspect of the order was the apparent attempt to impose a constitutional restriction on the political speech of a political leader.

"But the most alarming aspect is the apparent attempt to place a constitutional gag on the political speech of a political leader in the order.

"Under what authority of law have the judges restricted the fundamental rights guaranteed by Articles 19 and 19-A of the Constitution? Will they identify, in their judgment, the specific law that prohibits a political leader from expressing his political views?" he asked.

The senior lawyer argued that if a convicted prisoner retained the right to cast a vote, he could not be denied the right to speak and express his political views. "Fundamental rights do not simply disappear because a person is imprisoned," he said.

He also questioned the reported requirement for members of Imran Khan's family to submit an affidavit.

"What happens if they refuse? Will the Supreme Court allow a prisoner's health to deteriorate further simply because it has been told to do so—or because political considerations have been allowed to prevail over constitutional obligations?" he asked.

The lawyer said the judges who passed the order had taken an oath to preserve, protect and defend the Constitution and that the oath carried an enormous responsibility. "If all of this is part of a political deal, then the question becomes even more profound: what remains of the symbol of resistance?" he asked.

He said history remembers those who endured imprisonment rather than surrender their principles.

"Khan Abdul Ghaffar Khan endured decades of imprisonment. Nelson Mandela spent 27 years behind bars. Their struggles remind us that the duration of imprisonment does not determine the strength of a cause; the refusal to surrender fundamental principles does," he said.