President General Pervez Musharraf has promulgated the National Reconciliation Ordinance 2007, empowering the federal and provincial governments to withdraw from prosecution before the judgement is pronounced by the court of trial.
Promulgated Friday evening, the Ordinance also provides for not arresting any member of Parliament or Provincial Assembly without consent of the Special Parliamentary Committee, to be constituted by the Chairman Senate and Speaker National Assembly.
The Ordinance aims at promoting national reconciliation, to foster mutual trust and confidence amongst holders of public office and remove the vestiges of political vendetta and victimisation and to make the election process more transparent by amending certain laws for that purpose.
It provides for renumbering the section 494 of Code of Criminal Proceedings and adding two more sections empowering the federal and provincial governments to withdraw from the prosecution of any person including absconder who is found to be falsely involved for political reasons or through political victimisation.
There is amendment in section 494, Act V of 1898, section 39, Act LXXXV of 1976, section 18, Ordinance XVIII of 1999, section 24, Ordinance XVIII of 1999, section 31A, Ordinance XVIII of 1999, as well as insertion of a new section in Ordinance XVIII of 1999 and withdrawal and termination of prolonged pending proceedings initiated prior to October 12, 1999.
"Notwithstanding anything to the contrary in sub-section(1), the federal government or a provincial government may, before the judgement is pronounced by a trial court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimisation in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub-section (1) shall apply," the amend in section 494 provides.
The Ordinance also provides for the federal and the provincial governments for constituting a Review Board to review the entire record of the case and furnish recommendations as to their withdrawal or otherwise.
The Review Board in case of federal government shall be headed by a retired judge of the Supreme Court with Attorney-General and Federal Law Secretary as its members and in case of provincial government it shall be headed by a retired judge of the High Court with Advocate-General and/or Prosecutor-General and Provincial Law Secretary as its members.
According to the Ordinance, a review board undertaking review of a case may direct the Public Prosecutor or any other concerned authority to furnish to it the record of the case. According to the Ordinance, an amendment in section 39, Act LXXXV of 1976 provides for provision of the election results to the candidates and their agents immediately against the proper receipt.
"After consolidation of results the Returning Officer shall give to such contesting candidates and their election agents as are present during the consolidation proceedings, a copy of the result of the count notified to the Commission immediately against proper receipt and shall also post a copy thereof to the other candidates and election agents."
Amendment of section 18, Ordinance XVIII of 1999 provides for certain additions regarding constitution of Special Parliamentary Committees on Ethics at federal and provincial level, empowered to deal with arrest of any of the sitting members of national and provincial assemblies.
"Provided that no sitting member of Parliament or a Provincial Assembly shall be arrested without taking into consideration the recommendations of the Special Parliamentary Committee on Ethics referred to in clause (aa) or Special Committee of the Provincial Assembly on Ethics referred to in clause (aaa) of section 24, respectively," the Ordinance says.
Through amendment in clauses of section 24, Ordinance XVIII of 1999, the proviso inserted elaborates; "provided that no sitting member of Parliament or a Provincial Assembly shall be arrested without taking into consideration the recommendations of Special Parliamentary Committee on Ethics or Special Committee of the Provincial Assembly on Ethics referred to in clause (aa) and (aaa), respectively, before which the entire material and evidence shall be placed by the chairman, NAB."
In further addition, this proviso says the Special Parliamentary Committee on Ethics shall consist of a Chairman who shall be a member of either House of Parliament and eight members each from the National Assembly and Senate to be selected by the Speaker, National Assembly and Chairman Senate, respectively, on the recommendations of Leader of the House and Leader of the Opposition of their respective Houses, with equal representation from both sides.
Moreover, the Special Committee of the Provincial Assembly on Ethics shall consist of a Chairman and eight members to be selected by the Speaker of the Provincial Assembly on the recommendation of Leader of the House and Leader of the Opposition, with equal representation form both sides.
According to amendment of section 31A, Ordinance XVIII of 1999, "an order or judgement passed by the Court in absentia against an accused is void ab initio and shall not be acted upon."
Through this Ordinance a new section has been inserted in Ordinance, XVIII of 1999 providing that proceedings under investigation or pending in any court including a High Court and the Supreme Court of Pakistan initiated by or on a reference by the National Accountability Bureau inside or outside Pakistan including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before October 12, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date.
The Ordinance further provides that those proceedings shall not be withdrawn and terminated which relate to cases registered in connection with the co-operative societies and other financial and investment companies or in which no appeal, revision or constitutional petition has been filed against final judgement and order of the Court or in which an appellate or revisional order or an order in constitutional petition has become final or in which voluntary return or plea bargain has been accepted by the Chairman, National Accountability Bureau under section 25 or recommendations of the Conciliation Committee have been accepted by the Governor, State bank of Pakistan under section 25A.
The Ordinance provides further that no action or claim by way of suit, prosecution, complaint or other civil or criminal proceeding shall lie against the Federal, Provincial or Local Government, the National Accountability Bureau or any of their officers and functionaries for any act or thing done or intended to be done in good faith pursuant to the withdrawal and termination of cases under sub-section (1) unless they have deliberately misused authority in violation of law."