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Cablegate: National Reconciliation Ordinance Faces Supreme Court Scrutiny

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C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 004426

SIPDIS

SIPDIS

E.O. 12958: DECL: 10/14/2017
TAGS: PGOV PREL PK

SUBJECT: NATIONAL RECONCILIATION ORDINANCE FACES SUPREME COURT SCRUTINY

REF: A. ISLAMABAD 4337
B. ISLAMABAD 4382

Classified By: Ambassador Anne W. Patterson, Reasons 1.4 (b), (d)

1. (C) Summary: Pakistan's Supreme Court again weighed into the political fray, accepting six opposition petitions against Musharraf's October 5 National Reconciliation Ordinance. While the Court will not take up the unified case for weeks, its initial October 12 decision to hear the case halted all other related actions by lower courts and the National Accountability Bureau. Petitioners will argue that the Ordinance discriminates in favor of politicians and bureaucrats. Implications for Pakistan People's Party leader Benazir Bhutto are uncertain. Musharraf has urged her to stay away until this and his own court cases are settled, but Pakistan Muslim League leaders have privately assured Embassy that Bhutto will not face arrest if she returns on October 18, which Bhutto still plans to do. End summary.

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Court's Chilling Effect on Ordinance
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2. (U) A three-judge Supreme Court panel, led by activist Chief Justice Iftikhar Chaudhry, decided October 12 to hear five petitions against Musharraf's October 5 National Reconciliation Ordinance. The Ordinance was supposed to dismiss charges and void convictions for corruption brought from 1986 to 1999 against politicians and civil servants, including Pakistan People's Party (PPP) leader Benazir Bhutto (Ref A).

3. (C) The Court has deferred final judgment on the Ordinance's constitutionality to early November. It warned Bhutto and other beneficiaries of the Ordinance not to count on having charges/convictions dropped. Consequently, lower courts have been ordered to halt any actions based on the Ordinance. Similarly, contacts within Pakistan's National Accountability Board (NAB) also told PolOff October 11 that “pulling of cases,” i.e., physically identifying the files of those cases intended to be closed under the Ordinance, was suspended indefinitely.

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Yet Another Court Case
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4. (U) There appear to be up to six opposition petitioners that will be joined in the one hearing -- Jamaat-i-Islami (JI) chief Qazi Hussain Ahmed, Pakistan Muslim League-Nawaz (PML-N) President Shahbaz Sharif, former PPP member Mubashar Hasan, Insaf Welfare Trust Chairman Aslam Khaki, and two private citizens, former bureaucrat Roidad Khan and attorney Tariq Assad.

5. (U) The petitioners will argue that each has been denied a fundamental right under Pakistan's Constitution and that the ordinance is discriminatory as it extends amnesty only to politicians or civil servants. Petitioners are also expected to argue that Musharraf can only pardon those already convicted by the courts, but is not constitutionally empowered to withdraw cases still pending with the courts.

6. (C) The Supreme Court has already notified Pakistan's Attorney General and NAB, as well as three friends of the court, to prepare to argue the merits of the six petitions.
Court watchers are expecting a much expanded bench to hear the substance of the case. Whomever is chosen to be presiding justice appears to be key in the Ordinance's final fate.

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Public vs. Private Reaction
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7. (U) Commenting to the press gaggle outside the Supreme Court October 12, Attorney General Malik Mohammad Qayyum stated that Bhutto was still welcome to return to Karachi on October 18, though she would not be able to claim amnesty until the Court ruled.

8. (C) Later October 12, however, Qayyum privately told A/DCM that he believed the Ordinance was unconstitutional and would be struck down. Qayyum reiterated Musharraf's October 11 call for Bhutto to postpone her return until after the Court decides both his own case and this case on the National Reconciliation Ordinance.

9. (C) In an October 13 meeting, ruling Pakistan Muslim League (PML) General Secretary Mushahid Hussein assured A/DCM that Bhutto would not face jail time if she returned, no matter the legal uncertainty created by the Supreme Court.
He pointed out that Musharraf still retained the constitutional right to pardon convictions and noted that, regarding pending charges, the cases have been stalled for years.

10. (C) Hussein also suggested Bhutto should postpone her return, not because of any court case but because of a perceived Musharraf-Bhutto understanding earlier in the summer that she would not return until after parliamentary elections. Hussein worried that Bhutto's return would precipitate another attempt by PML-N's leader Nawaz Sharif to return from exile. Hussein held out the possibility that Musharraf and other PML leaders might accept Sharif's return, but only after the general elections.

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Benazir Will Not Change Plans
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11. (U) Speaking to the press October 12, Bhutto's attorney Senator Babar Awan stated that the PPP leader would definitely return to Karachi on October 18. Bhutto herself committed to the same on October 11, responding to Musharraf's remarks the evening before on live TV that Bhutto should re-think her plans.

12. (C) Other PPP contacts relayed to PolOffs October 11 that Bhutto, meeting in Dubai with close confidants, had seriously considered Musharraf's request, but had been talked out of it because party members and contributors had already invested considerable amounts to ensure an impressive welcome. PPP contacts are predicting 400,000 to 500,000 supporters will show up in Karachi on October 18. Bhutto's inner circle reportedly warned her of a lackluster turnout if the date were moved because party workers and the general public would feel betrayed.

13. (C) Comment: GOP and PML officials are increasingly concerned about the degree to which Chaudhry's Supreme Court will upset the delicate political bargain that led to Musharraf's quiet October 6 re-election and paved the way for Bhutto's planned October 18 return. Most analysts believe the Court will rule in Musharraf's favor, but the verdict will be close. Even if the Court strikes down all or part of the National Reconciliation Order, the ruling PML party appears resolved to abide by its agreement to enable Bhutto's return. End comment.
PATTERSON

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