SEVENTEEN JUDGES OF THE SUPREME COURT HAVE TAKEN UP PETITION

It is billed as one of Pakistan's most historic cases. For no other case has the Supreme Court put together all its judges for the hearing.

 

The possible outcome could have damaging consequences for the political future of President Asif Ali Zardari and many others in the Pakistan People's Party-led government.

 

Fresh uncertainties loomed over Pakistan as 17 judges of the Supreme Court, led by Chief Justice Iftikhar Chaudhary, on Monday took up petitions against the National Reconciliation Ordinance.

 

The petitions are asking that the infamous Musharraf-era decree that helped President Zardari stand for office by freeing him from corruption cases be struck down as unconstitutional and void ab initio — invalid from the beginning — as it is discriminatory and violates the fundamental right of equality before the law.

 

The main petitioner, Mubbasher Hassan, a former leader of the PPP and finance minister in Zulfiqar Ali Bhutto's cabinet, contends that the Supreme Court's ruling has the potential to change the country's future for the better. His petition dates back to October 2007. "It is not about unseating anyone. This is not a political petition. My petition has been pending from before Zardari's presidency. We are fighting the NRO because it goes against the Constitution and the rule of law," Dr. Hassan said.

 

In an early surprise and reflecting the difficulties of the government in this case, the Acting Attorney-General, Shah Khawar, made a statement in court saying he was under instruction from the government that it would not defend the law.

 

Government defence

 

A government defence of the NRO would have been difficult considering it pulled back from a vote on the law in parliament last month. But legal circles are more than astonished at the decision, considering the NRO was finalised after several rounds of talks between emissaries of former President Pervez Musharraf and the late PPP leader, Benazir Bhutto, and was later justified by the party as a vital factor in helping the transition to democracy.

 

"In my view, by this decision, the government has encouraged the full court to strike down the law," said Ahmed Bilal Soofi, a Supreme Court lawyer and commentator on legal affairs.

 

From now on, said Mr. Soofi, the question before the court was not so much if the NRO was ultra vires — the government having virtually conceded that — but more the consequences for different players in Pakistan's political scene.

 

The scenario is complex. The NRO itself lapsed on November 28, following the government's decision not to put the controversial and divisive decree to vote in the National Assembly after it became evident that its own coalition partners would not support it.

 

According to some legal experts, the cases against more than 8,000 people who benefited by NRO were automatically revived on the day the NRO lapsed. Among the beneficiaries are President Zardari, Interior Minister Rehman Malik and several former bureaucrats, some whom are now in the president's inner circle.

 

President Zardari claims presidential immunity from prosecution. In any case, it is the government that has to reopen the cases, something it may be loathe to do as it puts some of its prominent leaders at risk.

 

But with the involvement of the Supreme Court in the matter, the picture may change substantially. If the court were to strike down the NRO, those who benefited from this law would stand to lose those benefits.

 

According to legal experts, there is a possibility that instead of leaving it to the government, the court may order the reopening of the cases.

 

The ruling could also pave the way for further petitions by those interested in seeing Mr. Zardari tried asking the court to interpret the limits of presidential immunity.

 

It could also open the gates for petitions challenging the eligibility of Mr. Zardari as a candidate in the 2008 presidential elections.

 

The court has asked the government to place on record last month's parliamentary debate on the NRO to see for itself why "342 elected representatives did not give their support" to this law. It also asked the anti-corruption National Accountability Bureau, to furnish it with an authentic list of beneficiaries.

 

It is expected to pronounce a verdict later this week. "The decision of the court in this case, whatever it is, will be momentous," said Dr. Hassan.