Bargaining With The Corrupt

9 Jan, 2019

The Supreme Court of Pakistan recently gave a month’s notice to parliament to amend the ‘voluntary return’ provision in the National Accountability Ordinance. In its election manifesto, the PTI already committed to address the legal lacunas in the accountability laws such as ‘voluntary return’ and ‘plea bargain’.

But some recent developments indicate that the government is perhaps having a change of heart, especially regarding the plea bargain provision. The NAB chairman also claimed that plea bargain has been instrumental in NAB’s recovery of looted wealth.

Is there any substance to such claims and should the government retain such provisions?

The voluntary return allowed under Section 25 of the NAB Ordinance permits an accused to pay back the amount he has embezzled and walk away without incurring any criminal liability. This option is subjected to the approval of NAB chairman and can be exercised before a formal investigation is launched.

The plea bargain provision, on the other hand, can be exercised after the initiation of investigation, before or after the commencement of trial or even during the pendency of an appeal. The request has to be endorsed by the NAB chairman and approved by the court. The accused has to accept guilt and return proceeds of corruption and in return avoids any jail time. However, he does get convicted, disqualified to hold a public office or get a loan from banks and dismissed from the service, if he is a government official.

The concept of plea bargain originated in the US and has been adopted by various countries. It is a negotiated agreement offered by the prosecutor, whereby the accused accepts his guilt and gives away his right to a trial, mostly in exchange for reduced sentence or dropping certain charges. The objective is to allow efficient and quicker resolution of cases, reducing pendency and providing greater flexibility to prosecution.

In Pakistan, however, plea bargain in its present form has many shortcomings. Firstly, it creates perverse incentives for the corrupt, where they engage in corrupt practices with a sense of impunity, knowing that worse comes to worst, they would end up returning the ill-gotten money but would avoid prison.

Secondly, NAB’s claim that plea bargains have been effective in recovering the looted wealth is not correct. The NAB’s annual report 2017 shows that since its inception, the agency has recovered Rs295 billion, out of which a mere 6% was recovered through plea bargains.

Thirdly, the plea bargain provision has been used in some controversial cases, where there was prima-facie evidence, with a clear case of corruption and extremely high prospect of conviction. For instance, the infamous former secretary of finance for Balochistan, Mushtaq Raisani, was given the biggest plea bargain deal in the country’s history. Raisani, who was caught red-handed with Rs650+ million, was made to pay Rs3 billion to get out of prison. The decision was widely criticised.

Lastly, the plea bargain has to be offered by an independent prosecutor, after examining the adequacy of evidence and fully disclosing it to the accused, to ensure transparency. In case of NAB however, the prosecution is not independent and falls under the accountability watchdog. Therefore there is a high risk that the plea bargain provision can be misused, where despite weak evidence, the accused can be coerced into pleading guilty, creating ethical issues.

Considering these weaknesses, parliament should also review the plea bargain provision in the NAB law, besides voluntary return. There is nothing inherently wrong with the concept of plea bargain, as long as it is part of a comprehensive regime, brokered through an independent prosecution and does not create perverse incentives. Modifying the use of plea bargain will therefore help the government in fulfilling its commitment and creating a transparent accountability regime. .. by Hasaan Khawar

Published in The Express Tribune, January 8th, 2019.