A flawed choice
4
CORRUPTION suspects are being nabbed and plea bargains struck — the national exchequer will soon swell thanks to the amount recovered from plea bargains. This can even help cut the fiscal deficit.
Would the suspects be punished if found guilty? The plea bargain option allows the guilty to at least avoid jail — the suspect’s consent to return 80pc of the money and his or her being barred from holding public office is considered punishment enough. So, almost anybody who finds himself in the dock settles for the plea bargain route. The beauty of a plea bargain is, transfer Rs2 billion from the national kitty to your personal account, return 80pc in instalments and the balance Rs400 million is yours to enjoy. Yes, you lose your reputation and the right to hold public office. But to save your reputation you can easily play the revenge or conspiracy card.
To hold public office, you can wait for a change in climatic conditions to sign a re-entry pact.
Voluntary return of the entire amount in question, before you are in the dock, would not even debar you from holding public office. Dip your hands in the pot; if you go unnoticed, enjoy the entire booty. If noticed and still in the country, which would be rare, return the money before a formal investigation begins and you are cleaner than a newborn.
The plea bargain option is an escape route for the corrupt.
What is NAB supposed to do? Its website says that its duty is to eliminate corruption. Can corruption be eliminated by merely getting back the stolen money while allowing ‘business as usual’? Would this encourage or deter would-be corrupt elements?
Given that terrorism is on the decline, the surge in plea bargains may compromise whatever little faith that some might have begun to repose in the system. How? While fighting terror, corruption suspects would be sent to NAB, the public would like to see justice being done, the cynics would predict a muk-muka (settlement), the suspects would strike plea bargains, prove the cynics right and dash public hopes. So besides the corrupt, which side stands to gain from plea bargains and who will lose? Go figure.
NAB’s annual report of 2014 states that cases during the period 2009-2014 related to the voluntary return of money and plea bargains involved amounts worth Rs42.4bn. The amount actually recovered was Rs15.8bn, meaning Rs24.6bn still has to be recovered.
Settlement is allowed in three instalments of 34pc, 33pc and 33pc. How much time is given for this? The report does not spell this out. It is not clear from the report whether or not the unpaid amount is due. Billions are still outstanding against some plea bargains struck as early as 2008 and 2009. This suggests defaults. The question is should the recovery be allowed in instalments, if at all the voluntary return and plea bargain options are to continue?
NAB is now running a public awareness campaign under the theme of ‘say no to corruption’. What are the chances of the campaign’s success, with the news of fresh plea bargains and the slow pace of investigation into mega scams coming every now and then?
Generally, a plea bargain is any agreement between the prosecutor and the defendant whereby the defendant agrees to plead guilty in return for some concessions from the prosecutor. A plea bargain allows both parties to avoid a lengthy trial and may allow the defendant to avoid more serious penalty.
Plea bargain is an accepted part of the entire criminal justice system in countries like Canada, the UK and United States. But then these countries respectively rank 10th, 14th and 17th on the latest Corruption Perception Index published by Transparency International. Pakistan ranks 126th out of 175 countries.
India, which ranks 85th on the index, introduced the plea bargain system in 2005, but specifically omitted corruption from the categories in which the country allows this. In Pakistan, it’s just the opposite. The plea bargain option is available only in corruption cases. With the country being 126th on the corruption index, does plea bargain suit Pakistan or the country’s corrupt? Clearly, plea bargain is a poor option in Pakistani conditions.
Pakistan’s Constitution does not allow enactment of any law repugnant to the spirit of Islam. Has somebody evaluated the plea bargain on the yardstick of the Sharia? Has the Council of Islamic Ideology the will to evaluate it?
If found against the spirit of the Sharia, would the CII recommend striking it off the NAB ordinance? Or can the chief justice take suo motu notice? Will somebody file a public interest petition?
Will some parliamentarian raise the matter in parliament? Will the media make it an issue? If any of these things happen, Pakistanis stand to gain.
The writer heads the School of Public Policy at the Pakistan Institute of Development Economics.
Twitter: @khawaja_idrees
Published in Dawn, October 6th , 2015
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