'The law is clear': Legal experts weigh in on delay in shifting Imran to hospital

PTI founder Imran Khan was back in the news this week after the Su­p­­­r­eme Court ordered the government to shift the incarcerated ex-premier to Shifa Inte­rn­ati­onal Hospital within two days for examination and treatment by a multidisciplinary medical board.

There has been much ado over Imran’s health, with him having been taken to the hospital multiple times for an eye ailment — right central retinal vein occlusion (CRVO) — that came to light in late January.

The PTI and the government have also been engaged in a blame game, with the latter accusing the former of a lack of transparency in not ensuring appropriate treatment for Imran.

On Wednesday, the government approached the SC to review and recall its order for shifting Imran to Shifa International Hospital, which is a private institution, arguing that the directive was discriminatory and was issued in violation of prison rules and principles of natural justice.

The plea, however, was returned on Thursday, with incomplete paper books being cited as the reason. While it has been indicated that the government may file a fresh plea, the SC’s deadline still remains in effect.

Here’s what the legal fraternity has to say about the government’s legal obligations following the SC’s order.

Review jurisdiction an ‘extraordinary indulgence’

Advocate Asad Rahim Khan said the filing of a review petition does not “do anything to disturb the original order”. He also clarified that a review was not a routine next step following SC orders and judgments.

“There has been a mistaken impression over the past decade, exacerbated by erroneous verdicts by judges like Saqib Nisar and Qazi Faez Isa, that the review is the inevitable next step after orders and judgments of the SC; that it is a diet appeal of sorts. It is not,” he told Dawn.

“Review jurisdiction, as has been clarified for the better part of a century … is an extraordinary indulgence, in which cases are to be ‘reopened with very greatest hesitation and only in very exceptional circumstances’,” he said.

Rahim said that government had also previously “ignored the 90-day election verdict and the reserved seats judgement”, adding that it would “land itself in contempt” if it didn’t transfer Imran to Shifa International Hospital within the two-day deadline stipulated by the SC order.

‘Court must not sit as a silent spectator’

For her part, lawyer Rida Hosain said that if the government failed to comply with the SC order, “it is plain and simple contempt of court. There are no two ways about it”.

She added, “It would be tantamount to deliberate and wilful disobedience of a court order.”

She seconded that “the intention to file a review does not change the binding nature of the order. The court order holds the field, and the government is under an obligation to implement it.”

Echoing Rahim, Hosain said “the disobedience of judicial orders by this government is a pattern” and that “the judiciary has failed to act when its orders were disobeyed”. She added that no contempt proceedings took place when the government failed to hold elections in Punjab and KP “despite clear constitutional and judicial directives”.

Along with the reserved seats decision, she said, “There was no contempt action when civilians convicted by military courts were not given a right to appeal to the civilian courts within 45 days”.

“In some cases, the government has not even considered it necessary to provide an explanation for its non-compliance,” she told Dawn.

There have been instances where governments have failed to comply with SC orders and found themselves in hot waters. In fact, in April 2012, then-prime minister Yousaf Raza Gilani was convicted of contempt of court and sentenced until the rising of the court, for refusing to write a letter to Swiss authorities to request that they reopen a corruption case against President Asif Ali Zardari, who was also the president at the time.

In 2019, the SC issued a landmark judgment directing the promulgation of a new governance order for Gilgit-Baltistan within two weeks. However, both the subsequent PML-N and PTI governments ignored these directives.

“The judiciary’s inaction has been destructive for the authority of court orders. The court must not sit as a silent spectator as its authority is eroded,” said Hosain.

“If the government does not comply, the government officials that have failed to comply with the order must be held to account.”

Hosain further said that in case of non-compliance, the government “sends a clear message that the rule of law has been replaced by the rule of men, where those in power pick and choose which orders to implement”.

She added that in former PM Gilani’s contempt case, Justice Asif Saeed Khan Khosa adapted Khalil Gibran’s words, saying, “Pity the nation that is led by those who laugh at the law little realising that the law shall have the last laugh”.

‘The law is clear’

“The law is well settled that unless an order of the court has been suspended or stayed, it is mandatory for it to be adhered to and implemented,” lawyer Basil Nabi Malik told Dawn.

He added that in this case, the review petition had been “reportedly returned “without the grant of any interim relief”, which meant that “the government is bound to follow through and comply with the orders of the court, failing which appropriate contempt proceedings can be initiated against the delinquent officers”.

Commenting on the government’s options, he said that it “may contend that it is willing to comply but shall await a decision on the review petition before it does”, adding that “such an approach, although possible, shall not be rooted in sound legal theory or principles”.

“The law is clear; have the order suspended, set aside, or stayed, and if you are unable to do so, comply,” he said.

‘SC order holds the field’

Lawyer Abdul Moiz Jaferii said the past SC orders were clear on “what happens when governments and prime ministers are in contempt of its directives”.

“Until there is a further order from the SC amending this direction, it holds the field. The government has until the end of today to stay within the bounds of the order of the Supreme Court,” he told Dawn.

“The filing of a review petition does not in any way dilute the government’s obligations contained within the order,” he said.

‘Delay amounts to contempt of court’

Lawyer Mirza Moiz Baig said there is “no tenable ground for the government to delay Imran’s transfer to the hospital”.

“The mere pendency of a review application does not allow the government to delay implementation of the SC’s decision unless the court itself suspends its previous decision,” he said.

“Any delay, irrespective of the government’s review, thus, amounts to contempt of court,” he said.