There is law. And there is morality. The two are not always the same.
The new National Reconciliation Ordinance has made many people very angry. Some people are angry because they think it is “immoral” for President Musharraf to have given a “Get Out of Jail Free” card to people who have looted the country. Others are angry because they think that the NRO is bad politics and that the President could have managed a transition without joining hands with Benazir. And then there are those who are angry because they think the NRO is unconstitutional.
In their anger, those opposed to the NRO on legal grounds have been only too happy to latch on to arguments that the NRO is unethical or otherwise undesirable. But the relationship between law and morality is not that simple.
To begin with, it is necessary to understand what the NRO does (and does not do). In simple terms, the NRO does three main things:
1. It allows the Federal and Provincial governments to “withdraw from the prosecution” of any person for any crime, if a committee headed by a retired judge concludes that the person concerned has been falsely involved for political reasons, and the case in question was initiated before October 12, 1999 and after January 1, 1986.
2. It provides that no sitting member of Parliament or a provincial assembly can be arrested without the permission of a parliamentary committee made up of equal numbers of government and opposition members.
3. Most controversially, it provides that all pending trials and investigations under the NAB Ordinance against holders of public office which were initiated prior to October 12, 1999 stand “withdrawn and terminated with immediate effect.”
The reason why the first provision is controversial is because traditionally, withdrawal from prosecution has only been allowed with the permission of the Court trying the matter. Furthermore, in the Asfandyar Wali case, the Supreme Court struck down the power of the Chairman NAB to unilaterally withdraw from prosecution after reaching a deal with an accused person. However, a conditional (and probably coercive) withdrawal based upon a quid pro quo is very different from an unconditional withdrawal by the government. It is therefore doubtful whether the Asfandyar Wali holding would apply to the NRO. But even if it did, it would still only mean that the provision of the NRO in question would be read down to require the approval of the Court before the government would be allowed to withdraw.
So far as the second provision is concerned, a quick survey of Pakistan’s chequered past should be enough to convince any skeptic that parliamentarians (particularly those from opposition parties) are often arrested on the flimsiest of grounds. Allowing the arrest of parliamentarians only subject to the permission of a bipartisan commission therefore seems eminently sensible. It should also be noted that there are other countries in the West, such as Italy, also recognize a limited degree of immunity for parliamentarians precisely for the same reasons. Of course, this provision is quite susceptible to abuse. But it seems to be common ground amongst all concerned that we have no option but to entrust our future to the elected representatives of the people.
The main ground of opposition to the third provision of the NRO is that it violates the fundamental right to equality recognized by Article 25 of the Constitution. If you are going to forgive politicians, the argument goes, then you might as well forgive every single thief in Pakistan: after all, what is the difference?
A good (and brief) definition of the right to equality is the obligation of the government to treat like things like (and to treat different things differently). In legal terms, the debate over the provision is the debate over whether or not “holders of public office” constitute a separate and distinct class. If politicians are different from you and me, then they can obviously be treated differently.
The biggest problem for the opponents of the NRO is that the provision in question modifies the NAB Ordinance which applies only to holders of public office by making them subject to several crimes. Those crimes, by and large, do not apply to ordinary people or even ordinary thieves. So, if the NAB Ordinance is at all valid, then holders of public office must be deemed to constitute a separate and distinct class.
To restate the argument, the NAB Ordinance is predicated on the assumption that politicians are a shifty bunch and deserve to be placed under special scrutiny and subject to special crimes. The NRO modifies the NAB Ordinance by saying that while politicians may be a nasty bunch, they should not be held liable for cases instituted prior to October 12, 1999. The argument that the NRO is invalid because it treats politicians separately from normal people (or even normal thieves) is therefore self-defeating. If politicians are a separate class for the purpose of placing extra restrictions on them, then they are also a separate class for the purpose of removing certain of those additional restrictions.
A separate argument which can be made is that the cases in question are all cases instituted (or continued under) under the Ehtesab Act, 1997 and then further continued under the NAB Ordinance, 2001. The decision to continue those cases under the NAB Ordinance was a legislative choice. If so, it follows that the option to discontinue those cases is also available to the legislature.
There are of course many other arguments both for and against the NRO, but at this point I want to acknowledge that there is certainly a huge outpouring of moral disgust with respect to the NRO. I mention this because all of the legal arguments in the world sometimes count for nothing when faced with the actual anger and revulsion of a society.
My first assignment in law school was to analyse the constitutionality of admission requirements to the public universities of Mississippi, one of the poorest and most racially divided of America’s states. So far as I was concerned, the issue was simple. The admission requirement in question was facially neutral – a minimum SAT score of 830 – and the fact that it produced racial segregation was, in my view, unfortunate but irrelevant.
As it so happened, the Supreme Court of the United States disagreed with me, 9-0. In the view of their lordships, the fact that a rule was facially neutral was irrelevant if it did, in fact, produce racial segregation. What they noted instead was that the time for excuses and polite subterfuges had come to an end. Segregation was not just wrong but morally evil. And every rule which allowed this evil to continue was also wrong because in some cases, what counts is not just the process but the end result.
So, there is law. And there is morality. And sometimes, the two are the same.