Making a mockery of its so-called zero-tolerance policy against corruption, the National Accountability Bureau (NAB) has ‘solved’ another mega corruption case through the notorious plea bargain clause of the NAB Ordinance, 1999.

Last month, our premier anti-graft body formally approved a plea bargain request worth more than Rs3 billion submitted by ex-Finance Secretary of Balochistan Mushtaq Raisani along-with his two partners in crime. A few months ago, the NAB officials recovered a huge amount while searching his house in Quetta. This high-profile corruption scam was being closely watched in the country. However, the way the NAB chose to instantly dispose of this open-and-shut case after making a compromise with the corrupt bureaucrat has certainly raised the eyebrows of many. How the NAB officials concluded this case and subsequently justified this action is simply deplorable. Surely, a person, who massively embezzled the financial resources of the deprived masses of a troubled province, should have been awarded an exemplary and deterrent punishment.

The controversial conclusion of the Mushtaq Raisani case by the NAB officials is being widely criticised. However, at the same time, it has also given rise to healthy debate regarding the propriety and legality of the very concept and practice of plea bargains in Pakistan. Besides a section of the media, a number of politicians, namely the PTI Chairman, Federal Minister of Interior and CM Punjab, have also suggested the abolition of the plea bargain law. This legal modus operandi has miserably failed to curb the pervasive corruption in Pakistan. According to NAB’s own sources, it has recovered Rs284 billion (mostly from loan-defaulters) after settling some four thousand corruption cases through plea bargains and “voluntary return” so far. As the NAB officials always boast about recovering heavy amounts in the corruption cases, we often wonder whether the NAB is an anti-graft body or simply an assets-recovery agency.

Unlike the previous anti-graft laws in Pakistan, the NAB Ordinance, 1999 introduced the very practice of plea bargaining – a legal mechanism enabling the NAB officials to recover ill-gotten money and assets from individuals. Paving the way for the Plea Bargain clause, the preamble of this ordinance states: “And whereas there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power or authority.” In fact, modifying the well-known legal presumption of innocence- “innocent until proven guilty” - the Plea Bargain clause has given rise to a novel presumption of innocence in favour of a person who pleads guilty.

Section 25 of the NAB Ordinance contains the ‘Plea Bargain’ and ‘Voluntary Return’ provisions. These provisions empower the chairman NAB to release, before or after the commencement of trial, any person accused of any offence under this ordinance if he returns the assets or gains acquired through corruption or corrupt practices. Moreover, under section 10 of this ordinance, a person who commits the offence of corruption can also be punished with imprisonment up to 14 years, with or without fine. However, it has now become general practice that once any person accused of corruption returns a portion of ill-gotten money through plea bargain, he is hardly punished by an Accountability Court.

The Plea Bargain clause in the NAB Ordinance is in conflict with the recognised principles of criminal jurisprudence in the country. Under the law of the land, certain so-called offences against property like theft, extortion, robbery etc., are essentially non-compoundable offences– the offences for which a victim or the court is not legally allowed to make a compromise with the perpetrator. Moreover, a plea of guilt always goes against the accused. This plea is generally considered strong evidence against an accused person, and often leads to his/her conviction. Ironically, a person who commits a theft of a few thousand rupees cannot escape punishment but a person who plunders the national wealth is ‘honourably’ released.

Islamic Jurisprudence is also not in accord with the concept and practice of plea bargain. The Muhammadan Law recognises a number of compoundable offences in which the victims or their heirs can remit the punishment of a wrongdoer after making a compromise with him. However, at the same time, this law is best known for its strict and unequivocal stance against the monetary corruption and financial crimes like theft, robbery, extortion etc. So it prescribes the punishment of amputation of hands for those who indulge in such crimes. A person who commits homicide (murder) can be pardoned by the legal heirs of the victim under Qisas and Diyat provisions of Islamic Law but a person who commits any financial crime is not allowed to be spared by a victim or the Sharia court. This simply shows how strongly Islam disapproves financial corruption and crimes by practically adhering to a ‘zero-tolerance policy’ against them.

‘Operant Conditioning’ is one of the fundamental concepts in behavioural psychology. Significantly influenced by the well known ‘law of effect, this thesis establishes a causal relationship between a behaviour and its consequence. It maintains that the consequences of a particular behaviour determine whether such behaviour is likely to be repeated or not in future. The positive consequences reinforce the behaviour and negative consequences simply lead to its extinction. Thus rewards and punishments play a fundamental role in modifying human behaviour. Similarly, the deterrence theory of punishment also underlines the importance of punitive actions to effectively combat crimes in any society. It assumes that a person obeys the law only because he is afraid of getting caught and be punished. The fear of punishment deters not only individuals from repeating a crime but also others from committing similar crimes. Regrettably, instead of inflicting heavy punishments on persons involved in corrupt practices, they are provided an opportunity to escape punishment by returning a portion of ill-gotten money to the government. Indeed we need more stringent laws and stricter enforcement.

At present, ‘Plea bargain’ is part of the criminal justice system in many countries in the world, including the US, Germany, Brazil, Japan, Guatemala, Argentina, Italy and France. In fact, it is an agreement between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor, usually in the form of a more lenient sentence. Thus a case is disposed of before a trial. These countries adhere to the typical adversarial justice system, and this practice saves the time of prosecutors and overcrowded courts. However, the plea bargain law is always practiced within some limits and conditions prescribed by the courts. Moreover, it only to some degree reduce the severity of the sentence, and by no means gives a clean slate to the defendants. Nor is it excessively used as an instrument to recover the plundered wealth as the NAB does in Pakistan. In fact, this practice is quite controversial and frequently criticized even in these countries.

At times, our superior courts have strongly disapproved the notorious Plea Bargain clause of the NAB Ordinance. The National Reconciliation Ordinance (NRO), being ultra vires, was declared null and void by a 17-member bench of the Supreme Court of Pakistan in 2009. In fact, the Plea Bargain clause of NAB Ordnance is tarred with the same brush as the infamous NRO. Therefore, the apex court can also invalidate the Plea Bargain clause once this matter is brought before the court for adjudication. Similarly, Under Article 203D of the Constitution of Pakistan, the Federal Shariat Court can also take initiative to get this controversial clause amended after declaring it repugnant to the injunctions of Islam.

Being unconstitutional, unethical and un-Islamic, the plea bargain practice cannot become part of any effective and efficient accountability regime. It can’t help curb pervasive corruption, which has now deeply penetrated our body-politic. We need to inflict harsh and deterrent punishments on corrupt individuals in the country. It is high time both the ruling and opposition political parties sit together in the Parliament to introduce some stringent anti-graft legislation in the country. Moreover, the Plea Bargain clause in the NAB Ordinance should be repealed.