On October 5, 2007 the then President of Pakistan promulgated an Ordinance, ostensibly to promote national reconciliation, as the legend in the preamble claimed;
WHEREAS it is expedient to promote national reconciliation, foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto;-
“Notwithstanding anything to the contrary in sub-section(1), the Federal Government or a Provincial Government may, before the judgment is pronounced by a trial court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub-section (1) shall apply.” (NRO)
In its Short Order dated July 31, 2009 in the Constitutional Petitions Nos. 08 and 09 of 2009, the Supreme Court of Pakistan had, inter alia, given 120 days to the Federal Government, to place before the Parliament, the National Reconciliation Ordinance (NRO) and other Ordinances, promulgated by the President before November 3, 2007, and imparted permanence by the Provisional Constitution Order No.1 of 2007.
Since the Short Order, which “attributed invalidity to the said legislative instruments”, was announced on July 1, 2009, the Supreme Court considered it appropriate that the said period of 120 days, as provided in Article 89 of the Constitution for Presidential Ordinances, “be deemed to commence to run” from that date.
This created an impression in some quarters that the NRO, which was promulgated on October 5, 2007, was to be deemed to be a valid law between February 5, 2008, and July 31, 2009 also, the day on which the Short Order of the Supreme Court was announced, and a new lease of life given to it till November 30, 2009, irrespective of the fact it was approved by the Parliament or not.
In its detailed Judgment in the subject petitions, the Supreme Court has dealt with the issue of Ordinances issued by the President or a Governor in paragraphs 185 to 188 at considerable length and clarified some ambiguities.
In paragraph 186 of the Judgment, the Supreme Court has observed that the Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270 AAA and by the Judgment in Tikka Iqbal Muhammad Khan’s Case also been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in the Articles 89 and 128, as the case may be, of the Constitution from the date of their promulgation.(italics are mine).
In paragraph 187, the Supreme Court has clarified that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. The Court has observed that only such rights, privileges, obligations or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.
In paragraph 188, the Supreme Court has proclaimed its ultimate authority:
“Needless to say that any validation, whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra-vires, non-conformity with the Constitution or violation of the Fundamental Rights, or any other available ground.” (PCOJUDGEMENT)
The NRO was a step towards implementation of Musharraf-Benazir deal. Under the NRO, the Code of Criminal Procedure 1898 was amended to enable the Federal and Provincial Governments to withdraw cases filed against the PPP leaders and other holders of public offices between January 1, 1986, and October 12, 1999, subject to condition that a review board would determine if political reasons or political victimization was involved in them or not.
The NRO also provided for amendment in the National Accountability Ordinance to overturn convictions in cases pertaining to the said period in which the accused had been tried in absentia and to halt investigation into pre-October 12, 1999, corruption charges.
The NRO was to be approved by the Parliament in accordance with Article 89 of the Constitution within the timeframe of 120 days.
However, after Musharraf subverted the Constitution on November 3, 2007, he accorded protection to the NRO and several other Ordinances under Article 5 (1) (2) of the Provisional Constitutional Order of 2007. They were no more to be subject to any limitation as to their duration prescribed in the Constitution.
Being under the impression that the NRO had become a permanent law and preoccupied with more urgent matters – the assassination of Benazir Bhutto, management of the PPP-affairs after her tragic death and preparation for impending general elections – Asif Ali Zardari failed to get some of the cases pending against him withdrawn before February 5, 2008, the day on which four months after the promulgation of NRO ended.
At least seven graft cases and the infamous Swiss money laundering case were withdrawn in March 2008. Some other holders of public offices also benefited from since deceased NRO.
After the detailed Judgment of the Supreme Court was announced, the Federal Government placed the NRO before the Parliament on 16 October 2009 and now it is to be debated and voted upon before November 30, 2009.
The PPP-led coalition that includes the MQM, the ANP, the Jamiat-i-Ulema-i-Islam (F), a couple of minor groups and several independents, if all was to go well, specially with MQM, has sufficient numerical strength to get the NRO passed in the National Assembly and (a more uphill task) in Senate, with retrospective effect. Even if the ANP is reluctant to support the NRO, requisite strength seems to be available.
Nawaz Sharif has warned that it would be a disgraceful act for the Parliament to pass such a discriminatory legislation and his party would oppose it, the PML (Q) and its breakaway faction has also declared not to support the passage of NRO.
However, the PPP contends that Asif Ali Zardari had remained behind the bars for more than eight years but was never convicted because all the cases against him were politically motivated and lacked evidence. It fails to take a position regarding other beneficiary colleagues of Mr. Zardari.
If the government failed to secure NRO’s parliamentary validation with retrospective effect latest by November 30th, then legally speaking, important government officials, including some federal and provincial ministers and key appointees, would face the rather unsavory, but very real prospect of loosing their jobs and landing in prison.
The Law ministry sources admit that if the government does not proceed strictly in line with the Supreme Court’s decision on November 3 actions, all those who had benefited from the NRO after the first week of February 2008 would become accused as they stood before their acquittal under the controversial law.
Some leading federal and provincial ministers, key advisers, high profile appointees and some of those holding important foreign assignments would become “fugitives of law” as they were before the promulgation of the NRO.
Besides, more than 2,000 beneficiaries of the NRO belonging to the MQM, for prosecution other charges, not corruption, most of whom were party workers and second and third tier leaders, the NAB sources said that almost 300 politicians and civilian bureaucrats took advantage of the NRO.
“…only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after November 3, 2007, and not thereafter, until such ordinances were enacted as Acts by the parliament,” the Supreme Court had clearly ruled.
Ultimately the fate of the NRO is to be decided by the Supreme Court where it has already been challenged. It is very likely that the Supreme Court would find it in violation of the Constitution or Fundamental Rights or untenable on some other ground.
The striking down of the NRO by the Supreme Court would allow the present or future government to reopen the cases filed against the holders of public offices between January 1, 1986 and October 12, 1999.
With Zardari at the helm of affairs, the reopening of the civil cases against him would serve no purpose. As President, Zardari, enjoys immunity from criminal proceedings under Article 248 (2) of the Constitution which says: “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office” and Article 248 (3) which says; “no process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.” (IMUNITY)
But then the constitutional position also is;
8. Laws inconsistent with or in derogation of fundamental rights to be void.
(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges clause shall, to the extent of such contravention, be void.
25. Equality of citizens.
(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. FUNDAMENTAL RIGHTS
That said the NRO HAS already been judged by the people, the civil society, the media and political parties, including the mqm and anp, as MORALLY UNACCEPTABLE, abohring and discriminating, besides out right favoritism.
When promulgated, contrary to the claim, that “it is expedient to promote national reconciliation, foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimization”, on its own showing it was to benefit the alleged criminals, up to October 12, 1999.
It did not benefit politicians or holder of public office up October 5, 2007, when it was given birth.
While concluding, here are some Excerpts from Nelson Mandela’s Address to the People of Cape Town on the Occasion of his Inauguration as State President Grand Parade, Cape Town (May 9, 994)
“They project a democracy in which the government, whomever that government may be, will be bound by a higher set of rules, embodied in a constitution, and will not be able govern the country as it pleases.”
“Democracy is based on the majority principle. This is especially true in a country such as ours where the vast majority has been systematically denied their rights. At the same time, democracy also requires that the rights of political and other minorities be safeguarded.”
“This needs unity of purpose. It needs in action. It requires us all to work together to bring an end to division, an end to suspicion and build a nation united in our diversity.”
“To raise our country and its people from the morass of racism and apartheid will require determination and effort. As a government, the ANC will create a legal framework that will assist, rather than impede, the awesome task of reconstruction and development of our battered society.
While we are and shall remain fully committed to the spirit of a government of national unity, we are determined to initiate and bring about the change that our mandate from the people demands.
We place our vision of a new constitutional order for South Africa on the table not as conquerors, prescribing to the conquered. We speak as fellow citizens to heal the wounds of the past with the intent of constructing a new order based on justice for all.
This is the challenge that faces all South Africans today, and it is one to which I am certain we will all rise.” Nelson Mandela TRC
Let’s see when and if we will ever get our own Truth and Reconciliation Commission or have to contend with the on going jugglery in the name of NRO of today or yonder.
