President Asif Zardari’s bid to bury the NRO in parliament has come a cropper. The MQM has stabbed him in the back. He should have known better. The MQM has a record of ditching friends. Indeed, this debacle has a familiar ring to it. The same half-baked approach was taken by the PPP when Governor’s Rule was imposed in Punjab last March without stitching up an alliance with the PMLQ. What next?
Prime Minister Yusuf Raza Gilani has confirmed that the NRO bill will be withdrawn from the roster of Parliament. That means that after November 28, the cut off date given by the Supreme Court (SC), the NRO will be null and void. Two possibilities will then open up. First, according to Aitzaz Ahsan, the beneficiaries of the NRO should apply for pre-arrest bail because their cases would stand revived. But since the government is the prosecutor, and elements in the government or allied to it are affected by the NRO, this may be unnecessary because the government certainly has no intention of acting against its own. But the fly in the ointment here is the resurgent judiciary. As we have seen, the Supreme Court is in activist mode. It could order the police to arrest the alleged criminals and go so far as to deny them bail. So even if the government is not interested in arresting or prosecuting anyone it could be thwarted by the judiciary. This would be the height of political activism. But, given the bitter political mood of the country, it could be sold to the people as a “revolutionary” and “moral” step. Under the circumstances, President Zardari and the PPP cannot afford to sit back in the hope that the judges will not fashion the law according to the dictates of their conscience or political tilt instead of due process and the constitutional doctrine of separation of powers. The only safe person in this scenario is President Zardari himself because of his constitutional immunity from prosecution while he is President. But if he is stripped of his companions and supporters by the courts, he will be a wounded man given to desperate measures and it would be foolish to predict the turn that events may take.
Second, the SC may readily agree to hear petitions against Mr Zardari’s eligibility to be President of Pakistan. But, since there is no conviction against him, it would require a desperate leap of vindictiveness to unseat him legally. But anything is possible in these trying times. The new judges have taken some hugely controversial decisions already – to put it mildly – which smack more of politics than law. But who’s to challenge the SC?
So, whatever happens, and regardless of merit, Mr Zardari must work out his strategy on the basis of the assumption that “they” are out to get him, come hell or high water. What are his options?
Mr Zardari can dig his heels in and get ready to fight a legal war with the SC. He can justifiably argue that, under Section 33A, the NRO knocked out all the political cases against holders of public office on the very day it was promulgated (5th October 2007). The language is very clear on this count: “Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any court including a High Court and the Supreme Court of Pakistan initiated by or on a reference by the National Accountability Bureau inside or outside Pakistan including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date”. In other words, he can argue that the debate over the validity of the NRO after February 5, 2008 for public office holders is largely irrelevant. But if “they” are out to get him, which is the premise from where we started, all such legal niceties are inconsequential. The SC can conceivably uproot the NRO of October 5, 2007, as unconstitutional.
Mr Zardari can take a more productive route. He can ally with Nawaz Sharif and together they can thwart “them” via parliament. There is a small window of opportunity here. Next month, the courts will go into overdrive. Democracy will be well served if a constitutional amendment can be quickly passed to enshrine the COD in all its dimensions, Mr Zardari and the PPP government can get guarantees of completing their term, Mr Sharif can get the roadblocks to third term prime ministership removed and the office of the PM strengthened, and all PCO judges, high or low, and regardless of which PCO oath they took, can be replaced by a truly merited, independent, non-controversial and apolitical judiciary. In this way, the democratic system can be protected from the certain derailment that is bound to happen sooner than later to the joint detriment of both Mr Zardari and Mr Sharif.