NROs: Yours, Mine and Ours
By Dr Mohammad Taqi
Florida
The Supreme Court (SC) of Pakistan had directed Prime Minister Yousaf Raza Gilani to appear in person before the court on January 19, 2012 and explain why he should not be held in contempt of the court. The contempt charges stem from the court maintaining that Mr Gilani had not carried out its 2009 order in the National Reconciliation Ordinance (NRO) 2007 case to write to the Swiss authorities to reopen the alleged graft cases against the late Benazir Bhutto and President Asif Ali Zardari.
The prime minister has engaged the eminent jurist and PPP leader Barrister Aitzaz Ahsan to represent him in the SC. Interestingly, Barrister Ahsan was one of the first, if not the first, people to state, in a television talk show in 2007, that the NRO was a discriminatory regulation and it would be challenged and likely rendered null and void by the courts. He appears set to plead Mr Gilani’s case in front of the SC bench headed by honorable Justice Nasir-ul-Mulk.
As an aside, it is interesting to note that both Barrister Ahsan and Justice Nasir-ul-Mulk were office bearers of the Human Rights Commission of Pakistan (HRCP) at one point. Given both individuals’ gentlemanly reputation, those looking for fireworks may actually be disappointed. At the very least, Aitzaz Ahsan is likely to keep the discourse circumspect and focused on the legal issue of whether the prime minister did or said anything that could be categorized as contempt. One is curious to see how the two former human rights activists deal with the contempt proceedings taking place in the shadow of the SC’s NRO judgment that has been called “not in line with the law and constitution” by the foremost Pakistani human rights champion, Asma Jahangir.
Many of us agree with Asma Jahangir’s take that the NRO was a person-specific regulation and violated the universal principles of justice, equality and fairness. But it certainly takes Asma’s courage of conviction to point out that the SC’s decision to quash that ordinance was also person-specific where certain NRO beneficiaries have been singled out while others have gone scot-free.
The NRO 2007 obviously had been signed and put into effect by the then military ruler, General Pervez Musharraf, who let over 8,000 people off the hook, against whom a variety of cases — many concocted out of sheer political vengeance — were pending at various stages of the legal process. The most prominent beneficiaries of the NRO were the martyred former Prime Minister Benazir Bhutto and her spouse, the current president, Asif Ali Zardari. However, thousands from the ethnic political party Muttahida Qaumi Movement (MQM) were given a reprieve under the same ordinance, making it the largest beneficiary party.
But lest we forget, reconciliation, by definition, takes place between two willing parties. The NRO was negotiated between General Musharraf and the current army chief, General Ashfaq Parvez Kayani, who headed the Inter-Services Intelligence (ISI) back then, on one side and the late Benazir Bhutto and her associates on the other. International players from the UK, the US and perhaps the Gulf sheikhs are said to have acted as guarantors of the deal. The NRO paved the way for the return of Ms Bhutto, and indirectly of another former prime minister in exile, Nawaz Sharif, to Pakistan and the safe exit from the country, down the road, of General Musharraf.
The restoration of the democratic dispensation that flowed from the much-maligned NRO, also allowed the elected Prime Minister Gilani to first release from house arrest the judges of the superior judiciary, and to later restore them to their office. An argument can be made that Mr Gilani gave to the judges what was rightfully theirs. But the fact of the matter is that apart from unfounded misgivings, one of the very legitimate bottlenecks in the judges’ restoration was a clause in the Charter of Democracy (CoD), which mandated for all judges who had ever taken oath under the Provisional Constitutional Order (PCO) to be sent home. With utmost respect one must submit that had Mr Gilani been a stickler for this clause, it would have most certainly sent scores of judges, including my lord Chief Justice Iftikhar Muhammad Chaudhry, home. That he had to wait for his turn till Justice Abdul Hameed Dogar vacated office in and of itself was nothing but a de facto reconciliation, and a much-appreciated one at that.
However, the present SC also afforded itself a de jure NRO via its July 31, 2009 judgment, where it selectively condoned its own transgressions and legitimized the 1999, 2002 and 2005 actions of many sitting on that bench and treated their PCO oaths as ‘past and closed transactions’, the opening of which, in its view, would serve no useful purpose. But it simply does not end with shoving those PCO oaths under a legal rug as those actions did not take place in a vacuum — they clearly aided and abetted the usurper of the time.
So the people at large may be justified in asking why one party to the NRO has completely been ignored in over two years of legal proceedings. Generals Musharraf and Kayani and the institution they represented were an equal, if not the more important, party in conceiving and implementing the NRO. Why is the role of the generals and their institution a past and closed transaction while a martyred civilian continues to be prosecuted? If orders can be made to bring back the allegedly looted wealth stashed abroad, it would have only been fair to have General Musharraf extradited or at least ask for it. But that would have meant not just taking on his institution but also the reopening of several ‘past and closed transactions’ and entail an unpleasant discussion about various NROs — yours, mine and ours.
My feeling is that in his upcoming appearance before the SC, Barrister Ahsan would not venture into revisiting its December 17, 2009 judgment in the NRO case and his views on writing to the Swiss government and presidential immunity are also known. However, the fact is that the original verdict remains a controversial and lopsided one, which had set the stage for the abuse of the dictator-inducted Article 61-F to label the prime minister as dishonest and a liar. Without actually undoing the wrongs done by the NRO verdict itself any relief given to the prime minister will merely be a band aid — or another NRO if you will.
( The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki)
