LAHORE: President Asif Ali Zardari enjoys, to a great extent, legal immunity from prosecution even if the National Reconciliation Ordinance (NRO)is pursued at both the relevant forums - the parliament and the superior court.
The fate of NRO, which has already been tabled in the National Assembly, will be in the hands of the court whether it sails though or sinks in the parliament. The law has already been challenged in the court, and the petition is pending. Interestingly, even if the court decides against the law, declaring it null and void, President Asif Ali Zardari will not be harmed till the expiry of his term in office.
Under Article 264(b) of the Constitution (Effect of repeal of laws), the status of the beneficiaries of the law will remain the same even if the motion on NRO is defeated on the floor of the House. The said article says, “Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, ... `(b) affect the previous operation of the law or anything duly done or suffered under the law’...’’
This provision of the Constitution says that actions taken during the application of the law cannot be undone even if the law ceases to exist except when the court declares the law `null and void’. That is, it really doesn’t matter to the people concerned whether or not the law lives on. The all-important thing in this case is `repealing’ of any law. If the parliament handles any law, as in the case of NRO, which has been referred to the parliament by the Supreme Court, either the motion is carried or defeated. In this case, if the motion is defeated in the House under Article 89(2)(a)(ii) of the Constitution, the beneficiaries will have protection under Article 264. Article 89(2)(a)(ii) says, ``An Ordinance promulgated under this Article shall have the same force and effect as an Act of [Majlis-e-Shoora (Parliament)] to make law, but every such Ordinance `before both Houses if it [does not contain provisions dealing with any of the matters referred to in sub-paragraph (i)], and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution...’’,
So, the only way to get rid of NRO is through the court. If and when the court takes up the matter, and if it decides against it, only then all the concerned people (who have benefited from NRO) will lose the shelter of the Article 264 of the Constitution. Such a verdict will imply that all the cases decided under the ambit of the law would be proceeded against as they had been before the law was introduced.
Interestingly, President Zardari will not be affected even if the court decrees NRO null and void. In such a scenario, the probable legal course is reopening of the cases against which he has got the immunity through the law. Article 248(2) (Protection to President, Governor, Minister) says, ``No criminal proceedings whatsoever, shall be instituted or continued against the President or a Governor in any court during term of office.’’ Meanwhile, the sub-clause (3) of the same Article further bars any such proceeding against the President, saying, ``No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.’’
Add to this the fact that President Asif Ali Zardari has never been convicted before the promulgation of NRO. If he has never been convicted, he stands qualified for the office. The Lahore High Court had convicted him in the Cotecna case but the Supreme Court, under former CJP Irshad Hussain Khan, not only reversed the decision, it also proceeded against the two LHC judges, who were part of the decision. So, the President doesn’t have anything against him, which can possibly disqualify him under Article 63 of the Constitution. Even if the court decrees against NRO, the President stands well clear. Moreover, the Supreme Court’s decision, whereby the NRO’s term was extended and it was left at the disposal of the parliament, despite having the authority to strike down the law at any time, will have some bearing on the proceeding of such a case if and when it would wish to take up.
It implies that NRO is no more an issue for the President no matter how relevant it gets politically. The PML-N knows this fact, and has complete understanding the NRO issue can only pay political dividends in the shape of rhetoric. No matter how unpopular the President, he can only be harmed, if, at all, through impeachment - the only constitutional mechanism for his removal. The NRO is, thus, meaningless for the President, and it just cannot be used as a bargain chip during Monday’s meeting between the PPP and the PML-N leadership. As for the rest of the people, who have benefited from the law, it will depend on the court’s decision on NRO.
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