The Pakistan Supreme Court judgment striking down the National Reconciliation Ordinance places tremendous political pressure on President Asif Ali Zardari with its directive to the government that all corruption cases that were earlier withdrawn under the decree be restored.
The court also announced that from now on, it would watch over the progress of these cases through a “monitoring cell” to be headed by Chief Justice Iftikhar Chaudhary or a judge appointed by him.
High courts in the four provinces will also set up monitoring cells to oversee the prosecution of the cases.
President Zardari is the most high-profile of more than 8,000 beneficiaries of the NRO, the controversial law promulgated by former President Pervez Musharraf in 2007.
It was aimed mainly at enabling Pakistan People’s Party leader Benazir Bhutto to return to the country and participate in the elections without fear of being arrested for the charges against her.
On Wednesday, a full bench of the Supreme Court, comprising 17 functioning judges, ruled that the law was void ab initio, in other words void from the beginning, as it was unconstitutional and violated several provisions of the Constitution laying down equality for all before the law.
The verdict came after seven days of hearings on a bunch of petitions asking the court to strike down the NRO as unconstitutional.
In an 18-page short order, delivered at 10 pm to a crowded court room, the full court also ordered that all cases in which the accused were discharged or acquitted under the NRO stood revived. It ordered all concerned courts to summon the accused and take up hearing the cases where they had been left off.
The court also ordered that all cases under investigation or pending inquiry that were terminated under the NRO, should be restored, as should any conviction or sentence handed down to any of the accused.
The court ruled that since the law had been declared null and void, all steps taken under it will be deemed never to have taken place, and everything in relation to these cases would revert back to where it was on October 4, 2007, the day before the NRO was promulgated.
Mr. Zardari’s spokesman, Farahtullah Babar, said no criminal cases could be instituted or continued against him as he enjoyed Presidential immunity.
However, it appears likely that in the coming days the court may to be asked to decide on the limits of Presidential immunity.
The question of whether this immunity extends to prosecution in foreign courts may also arise, as the Supreme Court’s judgment includes the cases against Mr. Zardari in Swiss courts.
Without naming Mr. Zardari, the judgment was particularly emphatic that the government takes steps to reclaim its status as a party to these cases that involved huge sums of laundered money.
The court ruled as illegal the steps taken by the former Attorney-General Malik Qayyum to withdraw the government’s claims on this money, and its status as a damaged party, as it was without the authority of the government at the time. It also ordered action against Mr. Malik for writing letters to the Swiss authorities asking them to terminate the cases.
The judgment could have an immediate fall out for those in elected office who were convicted in a criminal or civil case and were absolved following the promulgation of the NRO. The conviction, effectively restored by the court, would affect their eligibility for contesting the election.
It is the contention of Hafiz Pirzada, the senior lawyer who argued the case before the court, that there are some members of the current Parliament who were convicted as “absconder” and who were later NRO beneficiaries. He said these individuals should step down immediately.
There is no known conviction against Mr. Zardari except one by the Lahore High Court. It was set aside by the Supreme Court and a fresh trial ordered in the case. During the hearings, one petitioner told the court that there was an “in absentia” conviction against Mr. Zardari, but government lawyers said there was no record of it.
Still, legal and political pundits expect that there will also be petitions in the coming days in the Supreme Court challenging Mr. Zardari’s eligbility for contesting the 2008 Presidential elections, most likely on the ground that a person with several cases against him violates the requirement that a candidate should be “ameen”, a good and sagacious person.
The pressure on Mr. Zardari to step down on moral grounds is also expected to mount in the coming days, as it will be argued that the Presidency will be damaged and weakened by a person with so many cases pending against him.
While Mr. Zardari is the most well-known face of the NRO, the Muttahida Qaumi Movement, the Karachi-based party that is a member of the ruling coalition, stands to lose much from the judgment.
Of the 8,000-odd NRO beneficiaries, more than 90 per cent are MQM workers. Most were charged with criminal offences. The MQM, estranged from the PPP, has said it will face the cases, and argued that criminal cases are not as serious as being charged with corruption.