SUPREME COURT TO REVIEW NATIONAL RECONCILIATION

C O N F I D E N T I A L SECTION 01 OF 03 ISLAMABAD 002928 SIPDIS E.O. 12958: DECL: 12/04/2019 TAGS: PGOV PREL PK SUBJECT: SUPREME COURT TO REVIEW NATIONAL RECONCILIATION ORDINANCE, MAY DECLARE IT UNCONSTITUTIONAL REF: A. ISLAMABAD 2868 ¶B. ISLAMABAD 2664 ¶C. ISLAMABAD 2653 Classified By: Anne W. Patterson, Reasons 1.4 (b) and (d) ¶1. (C) Summary: The National Reconciliation Ordinance (NRO) lapsed on November 28. The Supreme Court announced that it will review all petitions related to the NRO beginning on December 7, and will likely make a ruling on its constitutionality. The government has not yet decided whether to defend the NRO in court given the potential political fallout from doing so. Acting Attorney General Shah Khawar believes the Court will declare the NRO unconstitutional -- and hand down this ruling before it goes on winter recess on December 19. He argued to us that while President Zardari may face increased political pressure from such a ruling, the Constitution provides him immunity from criminal prosecution, and the Court can not remove him from office because only criminal convictions, not outstanding criminal cases, are a bar to serving as president. In separate conversations with us, National Accountability Bureau (NAB) Chairman Nawab Ahsan and Chief Justice Chaudhry's former spokesman, Ather Minallah, concurred with Khawar's views. ¶2. (C) There are 8040 other NRO beneficiaries, most of whom are MQM leaders and activists who previously faced criminal cases -- including for murder -- connected to political violence in Karachi. Besides Zardari, several prominent PPP figures had NAB-related corruption cases quashed as a result of the NRO, including Interior Minister Rehman Malik, Defense Minister Chaudhry Ahmad Mukhtar, PPP Secretary General Jehangir Badr, and the President's Secretary General, Salman Farooqi. According to Khawar, their cases will automatically be reopened should the Court declare the NRO unconstitutional. That said, because these are cases, not convictions, these individuals should remain legally eligible to continue holding office, even if there is intense political pressure against them to resign, Khawar explained. End Summary. -------------- -------------- NRO LAPSES, COURT MAY DECLARE IT UNCONSTITUTIONAL -------------- -------------- ¶3. (U) The National Reconciliation Ordinance (NRO) lapsed on November 28 in accordance with a July 31 Supreme Court ruling that the NRO -- and all other ordinances promulgated by 
then-President Musharraf under the Provisional Constitutional Order of 2007 -- would lose legal validity 120 days after the ruling if not adopted into law by Parliament. On December 2, Chief Justice Iftikhar Chaudhry issued an order that the Supreme Court will take up all petitions relating to the NRO beginning on December 7. This includes two petitions challenging the NRO's constitutionality. Noting that the Court will thus likely have to interpret Pakistan's Constitution, Chaudhry's order also summoned Acting Attorney General Shah Khawar to participate in the case on behalf of the government. (Note: The Supreme Court did not rule on the NRO's constitutionality in its July 31 decision, but explicitly reserved the right to do so later. End Note.) Chaudhry has constituted an expanded bench -- headed by Chaudhry and consisting of 17 of the 18 Supreme Court justices (i.e., all but one justice who has a case pending against himself for taking an oath of office under Musharraf's PCO) -- to hear the NRO case. ¶4. (C) During a December 4 meeting, Acting Attorney General Shah Khawar told Acting PolCouns that the government had not yet decided to what extent, if at all, it would defend the NRO's constitutionality, given the potential political fallout from doing so. This decision, he said, would be made in close consultation with Prime Minister Gilani once he returned from Britain. Khawar expected the Supreme Court to review the NRO petitions quickly and issue a short-order ruling before it goes on winter recess on December 19. In Khawar's view, it is highly likely that Chief Justice Chaudhry will lead the Court to declare the NRO unconstitutional. (Comment: The Court would presumably rule ISLAMABAD 00002928 002 OF 003 that the NRO violates Article 25 of the Constitution -- which provides for equality and equal protection under the law for all citizens -- on the grounds that the NRO's legal amnesty provisions are time-restricted to cases initiated between January 1, 1986 and October 12, 1999. End Comment.) -------------- ZARDARI SHOULD NOT FACE LEGAL JEOPARDY -------------- ¶5. (C) Khawar maintained, however, that even if the Court does strike down the NRO, President Zardari should not face legal jeopardy from the revival of criminal cases against him. He reminded Acting PolCouns that while serving as president, Zardari has legal immunity that derives not from legislation, by rather directly from the Constitution (from Article 199, which states that "no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor during his term in office"). Thus, the cases against him can not proceed as long as he is in office, and the Supreme Court is powerless to remove the immunity. Acting PolCouns asked Khawar whether the Court could instead declare that without the NRO's legal amnesty, Zardari would have been ineligible to become president in the first place because of the criminal cases against him, and thus order his removal from office now. Khawar said that the Court should not be able to do so, because this ineligibility -- from Article 63 of the Constitution -- only applies to individuals with criminal convictions, not open criminal cases. Zardari had been convicted just once -- at the trial level -- and that conviction was later vacated by the Supreme Court. (Note: The NRO itself quashed ongoing criminal cases; it did not overturn criminal convictions. End Note.) Thus, the threat to Zardari's presidency from the Court overturning the NRO is a political one, not a legal one, Khawar argued. ¶6. (C) Khawar added that, in the unlikely event the Court upholds NRO's constitutionality, all of the NRO's beneficiaries should retain the legal benefits they accrued from the ordinance. He reminded Acting PolCouns that under Pakistani law, those benefits would be considered "past and closed transactions," and thus the legal cases against the NRO beneficiaries could not be reopened, despite the fact that the NRO's legal validity had expired on November 28. ¶7. (C) In separate November 24 and 25 conversations with us, National Accountability Bureau (NAB) Chairman Nawab Ahsan and Chief Justice Chaudhry's former spokesman, Ather Minallah, concurred with Acting Attorney General Khawar's views on the NRO. Both Ahsan and Minallah -- who retains close ties to Chaudhry -- said that the Court would likely rule the NRO to be unconstitutional. Minallah specifically cited the ordinance's "discriminatory nature" as its constitutional defect. Minallah agreed with Khawar that, in any event, Zardari enjoys legal immunity and, even in the absence of the NRO, would not have been ineligible to become president, because he did not have any criminal convictions. -------------- -------------- OTHER NRO BENEFICIARIES SHOULD REMAIN ELIGIBLE FOR OFFICE -------------- -------------- ¶8. (U) There are 8040 other NRO beneficiaries in addition to President Zardari. The overwhelming majority of them are MQM officials and activists, including party head Altaf Hussein and deputy head Farooq Sattar, who faced criminal cases in Sindh province -- for murder and other serious crimes -- that were initiated during the government's early-1990s crackdown on political violence in Karachi. Just 248 of the NRO beneficiaries had faced National Accountability Bureau-related corruption cases. That 248 figure includes 34 current politicians (i.e., holders of elective office),with the remainder government officials and bureaucrats. Besides Zardari, prominent PPP figures with NAB-related corruption cases quashed as a result of the NRO include Interior Minister Rehman Malik, Defense Minister Chaudhry Ahmad Mukhtar, PPP Secretary General Jehangir Badr, President's Secretary General Salman Farooqi, and Ambassador to the U.S. Hussain Haqqani. ISLAMABAD 00002928 003 OF 003 ¶9. (C) Acting Attorney General Khawar maintained to us that should the Supreme Court declare the NRO unconstitutional, all these NRO beneficiaries -- who, unlike Zardari, do not enjoy legal immunity -- will automatically have their cases reopened. He contended that the government could not block this from happening because of the independence of prosecutors and the courts. However, Khawar continued, since these are cases, not convictions, the NRO beneficiaries should not face legal ineligibility from continuing in office, though they may confront significant political and moral pressures to resign. That said, he also pointed out that National Assembly member Aftab Khan Sherpao, an NRO beneficiary who heads his own PPP-Sherpao party, served as Interior Minister under Musharraf while cases were pending against him. ¶10. (C) Comment: A Court ruling that the NRO is unconstitutional would be another major political strike against President Zardari, even if it would not place him in direct legal jeopardy. Given Chief Justice Chaudhry's political biases and antipathy to Zardari, such a ruling appears almost foreordained at this point. As Acting Attorney General Khawar pointed out to us, Chaudhry lost no time in issuing an order to take up the NRO after it lapsed; he did so as soon as the government returned to work after the Eid holiday. The failure of Parliament to pass the NRO as legislation may have an indirect bearing on the Court's decision. Our understanding is that in Parliament, the PPP was preparing to amend the NRO to eliminate the date restriction on NRO benefits -- which should have made it more difficult for Chaudhry and his colleagues to rule the NRO unconstitutional on equal protection grounds. PATTERSON