The NRO deciphered

The writer is a lawyer based in Islamabad

The PPP government has finally laid the loathsome National Reconciliation Ordinance before parliament for approval. Representatives and cronies of the ruling regime have now taken upon themselves to justify the need and merit of this indefensible legislation promulgated by General Musharraf as the negotiated deliverable of his secret deal with Benazir Bhutto. It appears that elected representatives of the people are about to squander another opportunity to build their own credibility and raise the minimum acceptable standards of ethics in politics by approving the NRO and reaffirming their commitment to cronyism and parochial loyalties. Why is it that those sitting in dark chambers of power are robbed of their ability to take a rational measure of the public and political impact of their acts and decisions?

Whether parliament passes the NRO, repeals it or allows it to lapse on November 30, will have no legal impact on the rights and benefits already accrued under this law by President Zardari and others. Such benefits can only be taken away if this law is found to be ultra vires of the constitution by the Supreme Court. Such determination will have to be made in view of the provisions of the constitution and not NRO's endorsement by parliament.

Instead of disowning the NRO as a contrivance of a bygone dictator and emphasising their commitment to equality, the rule of law and constitutionalism, the ruling party and its members seem intent upon rubbing the legislature's face in dirt by approving an abominable law likely to be struck down as unconstitutional in any event.

In terms of its content, the NRO amends three other laws: the Code of Criminal Procedure, 1898 (CrPC); the Representation of the People Act, 1976; and the National Accountability Ordinance, 1999. The amendments introduced to the Representation of People Act, 1976 are neither undesirable nor controversial, but changes made in the

other two are deleterious and prima facie unconstitutional. The NRO introduces new provisions in the CrPC that would allow the ruling government to withdraw, in its discretion, cases pending before the courts against any person that it believes was falsely involved in such cases for political reasons between Jan 1, 1986, and October 12, 1999. These provisions were supposedly introduced to benefit the MQM by creating a mechanism to withdraw thousands of criminal cases pending against its members.

The amendments introduced to the CrPC are objectionable from a conceptual as well as constitutional standpoint. One, they are discriminatory and fall foul of Article 25 of the constitution that mandates equality of all citizens and guarantees equal protection under law for they do not create a mechanism to review all cases of political victimisation, but prescribes preferential treatment for those falling within a timeframe determined arbitrarily and without any rational basis. Two, they violate the foundational concept of trichotomy of powers enshrined in our constitution by authorising the executive to intrude into the province of the judiciary.

In matters of criminal law, the state prosecutes citizens for the benefit and on behalf of society. The state has no discretion to refuse to initiate prosecution in relation to a crime or withdraw it at its whim. The executive is thus obliged to prosecute offenders implicated in crimes and once the matter is before court, due process requirements mandate that the same may not be withdrawn without the permission of the court. Due process is the essence of the rule of law. And this is what the NRO undermines not just in relation to the CrPC amendments but also those made within the NAB Ordinance, by enabling the executive to bring the accountability process of law to a sudden halt in handpicked cases.

The argument most vociferously made by President Zardari's fawning minions – that quashing legal proceedings against the beneficiaries of the NRO is welcome because despite a decade of prosecution no charges have been proved against him – betrays complete ignorance of the intrinsic link between due process and the rule of law. The heading of section 33A of the NAB Ordinance, introduced by Section 1 of the NRO, that reads "withdrawal and termination of prolonged pending proceedings initiated prior to October 12, 1999," itself highlights the twin problems with the amending provision: suspension of due process and discriminatory nature of the law.

Parliament could contemplate making a law that requires that the judicial process – trial and appeal included – in every case be completed within a stated timeframe to deal with the issue of delays. But then it must benefit all citizens. If those implicated in graft and violent crime can rise above the law by designing and approving a tailor-made law that allows them to do so, would Article 25 and its equal protection guarantee not be reduced to a farce?

The constitution after all cannot produce egalitarianism by ensuring social or economic equality. But it does offer justice through its promise of legal equality. Consequently Article 8 of the constitution holds that parliament has no authority to promulgate laws that contravene fundamental rights. The right to equal protection of law is a fundamental right enshrined in Article 25. The NRO is an instrument designed to grant preferential treatment to certain politicians and save them from the process of law. How can our parliamentarians in their right mind contemplate passing such a law in view of the explicit provisions of the constitution?

Let us assume for a moment that Mr Zardari and other beneficiaries of the NRO are hapless souls who have been made to suffer due to an abuse of the process of law by the mighty and thus saving them is a virtuous goal. Even then such a desirable objective cannot be achieved by prohibited means. Whether or not parliament will agree to pass the NRO is a political, ethical and moral question. The legal question is whether it has the authority to pass a discriminatory legislation that it deems desirable in view of the legislative authority bestowed upon it by the constitution. And this is what makes PPP's desperate attempt to get the NRO rubber-stamped by parliament seem ridiculous.

The strongest political argument rendered in support of the NRO is that it facilitates continuity of the political process by enabling the PPP leadership to free itself from legal persecution. But the argument is self-contradictory for two reasons. First of all, NRO beneficiaries such as Mr Zardari claim that no court of law has convicted them and given that their guilt has not been established, letting them loose isn't all that bad. But if there has been no conviction, the charge of persecution cannot stick either.

Does the need for the NRO then stem from the likelihood of conviction if legal processes are allowed to take their normal course? Or are we proposing a new entitlement for the political elites: the right not to be burdened by grinding processes of law that ordinary citizens are subjected to?

Second, the support for continuity of the political process is not rooted in the naive desire to see compromised politicians imposed upon this nation till eternity. The idea is to allow the process to run in a self-corrective fashion to separate the chaff from the grain and in order to find, nurture and groom a new breed of credible and untainted leadership. It is devices such as the NRO that lend support to detractors of democracy in Pakistan who argue that continuity of the representative process will not lead to reform but will instead allow corrupt political elites to entrench themselves further.



(To be concluded)

Email: sattar@post.harvard.edu