National Reconciliation Ordinance (NRO) of
Pakistan and Musharraf-Benazir CorruptionSource: www.nation.com.pk
Reconciliation without Truth 21st October 2007 by Syed Ali Zafar By promulgating the National Reconciliation Ordinance (NRO) President Musharraf has become responsible for passing one of the darkest laws in the history of our legal jurisprudence. The purpose of the law as expressed in its preamble is that there is immediate need to “promote national reconciliation and confidence amongst holders of public office and remove the vestiges of political vendetta and victimisation”. These are lofty ideals but NRO fools nobody. It was promulgated purely for political reasons in pursuance of the “deal” between Benazir Bhutto and president reportedly brokered by the US as per condition that all pending cases against Benazir Bhutto and her spouse should be withdrawn and terminated by law. As a quid pro quo PPP did not resign from the assemblies and tacitly accepted the election of Pervez Musharraf in uniform. NRO masquerades it by declaring that all cases against the people, who held public office prior to October 12, 1999 - whether guilty or innocent - shall stand immediately withdrawn.
My issue with the NRO is not whether the cases against Benazir or many others who held public office during the relevant time were justified or could have resulted in conviction - Benazir and the others may well be innocent of all crimes and could be ‘victims’ of ‘political vendetta’ as stated in the NRO. However, no law or principle of jurisprudence allows the president or the legislature by issuance of an ordinance to decide whether or not a person is guilty of a crime. In any civilised society this is the role of the courts that have the exclusive jurisdiction to decide guilt or innocence of accused through proper trial. NRO is a blatant violation of the rule of law and is in reality a “judicial verdict” announced by an ordinance, without trial, that any person who, even if he is in fact guilty of corruption of millions of rupees while holding public office and responsible for causing serious losses and damage to vital projects of the country is, nonetheless, by some convoluted conclusion, not guilty. The NRO does not make withdrawal of cases against a person conditional upon innocence, but simply declares that anyone who is accused of an offence of corruption before a certain date is not guilty. If there was ever an example of a legislation which does not qualify to be a law, then it is the NRO.
The unfortunate aspect is that NRO would legalise and institutionalise corruption in Pakistan which is already labelled as one of the most corrupt countries in the world. People had been waiting for someone to rid the country of this menace through even-handed accountability. Pakistan is signatory of UN Convention Against Corruption Article 27 of which provides for adopting legislation which effectively controls corruption as a criminal offence.
The country feels betrayed on this Eid. Musharraf in his inaugural speech as chief executive justified his takeover by promising to bring all guilty to the book. He said “The process of accountability is being directed especially towards those guilty of plundering and looting the national wealth and tax evaders….My advice to the guilty is to return voluntarily national wealth….They owe this to Pakistan.” The promise to check rampant corruption is reiterated by the president in his book “In the Line of Fire” where he says “Never in the history of Pakistan had we seen such a combination of the worst kind of governance – along with corruption and the plunder of national wealth….. All I have to do is to make clear that the charges would not be dropped.”
This commitment to undertake a transparent process of accountability and bring those guilty to face justice was advanced as justification by the Supreme Court in Zafar Ali Shah’s case to legitimise the army coup. When the NAB Ordinance 1978 was challenged in Asfandar Wali’s case, the Supreme Court not only welcomed the law but confirmed that Musharraf had been specifically allowed to remain in power so that he could complete this process effectively:
“…One of the grounds on which validation and legitimacy was accorded to the present regime as stated in the case of Zafar Ali Shah was that representatives of the people, who were responsible for running affairs of the State were themselves accused of massive corruption and corrupt practices in the public as well as private spheres and were benefiting there from… corruption was being practiced by diversified strata including politicians, parliamentarians, public officials”.
During Musharraf’s time NAB spent millions of rupees in prosecuting the cases against Benazir Bhutto in Pakistani courts as well as abroad, undertaking foreign trips at public expense and hiring expensive services of foreign consultants and investigating agencies. The people of Pakistan accepted this use of their money and the Supreme Court of Pakistan condoned the rigors of NAB because everyone wanted to see an end to the loot and plunder. The government spent further millions in publicity in the media to convince the people that the cases against BB were genuine and that NAB is working tirelessly to bring the looted money back. However, over night it seems that magically things changed and suddenly all those holding public office and charged during a certain period were by law declared innocent of corruption and in fact became ‘victims’ of ‘political vendetta’. It is extremely strange that for eight years no one in the government realised that these cases were initiated for ulterior purposes and suddenly a few hours before the elections of the president this revelation has suddenly dawned upon them.
The NRO benefits those who after having looted national wealth, leave the country, successfully avoid trial and having taken stolen money outside Pakistan have refused to reconcile with NAB. Cases against such persons are classified are withdrawn and they become lawful owners of that loot. On the other hand a person who has faced the charges against him and defended himself in trial but has received a judgement or has been forced to pay money to the government, the case against him cannot be terminated and the government can continue to retain his money. Is this not discrimination in the garb of reconciliation? If so, are we not justified to question our parents, elders and teachers why they taught us that honesty was good and corruption bad and will not our children be right in telling us that we are wrong when we say that cheating does not pay. Is this not in violation of the judgements of the Supreme Court which upheld the validity of Musharraf’s take over on the touchstone of accountability? Musharraf said in his inaugural speech about previous rulers that “The Pakistani people were subject to betrayal of their trust.” NRO is another betrayal.
NRO very conveniently also exonerates those officers of the government and NAB who prosecuted these public office holders whereas the NAB ordinance places a duty on the NAB chairman and other officials to carry out due diligence to ensure that no person is falsely prosecuted. For eight years the NAB officials continued to remain ostensibly convinced that the prosecution was valid and in the process to spend millions of rupees of public money. According to NRO, these officers were derelict in their duties and therefore responsible for negligently wasting public money. Now they too under the NRO are pardoned. Is there any accountability?
No one denies that national reconciliation is imperative and important and must be done amongst all stakeholders. Political victimisation was wrong and all false cases initiated for non-genuine reasons are to be dismissed. However, reconciliation is not a recipe for saving the corrupt and legalising corruption. The right step would have been to adopt a standard which applies to all equally so the process of reconciliation could have been done and seen to be done for national harmony. No doubt the innocent must be protected; this cannot be achieved by legislation but by ensuring speedy trial for everyone.
Reconciliation on the other hand rests on the principle of confession and truth. We have the example of South Africa before us. When the Apartheid regime ended there was a great divide in their nation which was on the brink of civil war. Cruel atrocities had been committed by both sides - the regime and ANC and other liberation forces fighting apartheid.
They had to move on to save the country and could not afford a continuation of hatred and revenge. The Truth and Reconciliation Commission was set up to investigate gross violations of human rights from 1960 to 1994 with the aim of reconciliation in South Africa’s divided society. Anyone could come forth and publicly confess the truth and their guilt before this committee and request for amnesty from prosecution. Even telling the truth was not an automatic relief from conviction. Based on the confession and full disclosure the committee had to further determine whether the crime confessed was politically motivated and proportionate in the circumstances. Only then could they exonerate the confessor. The idea was to accept the responsibility in order to share in the commitment of ensuring that it never happens again. Statistics show that 7112 petitioners including ex President F W de Klerk confessed before the committee, out of which only 849 were pardoned.
Any reconciliation law in Pakistan should also have been confession based only. Let any body who truly wants to reconcile and cleanse the system come forward with his/her confession before a committee of independent and neutral persons and then seek clearance or pardon with or without returning the plundered wealth. Only then can we achieve national reconciliation which would be credible and satisfying to the people of Pakistan. I submit that no one has any right to declare innocent any person who is charged with stealing people’s wealth. It is only the people who can forgive on acceptance of truth and disclosure.
The writer is an advocate of the Supreme Court of Pakistan
