By Dr. Abdul Razzaq
The writer is an advocate having Ph.D degree in Criminology
The concept of plea bargain may be explained as a negotiated settlement between the accused and the prosecutors in criminal matters where the accused agrees to accept the charges in exchange for lesser quantum of penalty for his cooperation. It has many modified forms now but underlying principle remains the same. In recent days, the provision of plea bargain in NAB Ordinance has attracted unprecedented criticism after the NAB disclosed a possible disposal of a case of misappropriation of public wealth under this provision. It has been effect of this outcry that the government was compelled to hurriedly amend the law to include voluntary return to be labeled as a stigma. This amendment even, is not enough to mitigate the challenge to public morality posed by this law in its present form.
Under the current law, the settlement by way of plea bargain essentially requires release of offender without any more restraint except his disqualification to hold any public office. Such restrictions do not bother those offenders who have not been interested to hold public office.
The criticism shown by the society, media and politicians is correct to an extent that since surfacing of this scam, almost on daily basis, the media has been trumpeting about quantum, seriousness and ugly nature of large scale wrongdoings by a public functionary. This disproportionate media trumpeting created high level of expectations that the culprits would be awarded most severe punishment. However, this level of expectations reached this stage because of breaking news syndrome disregarding the compelling legal ramifications and law connected with the matter. In a dysfunctional system of prosecution and trials that we have today; the gap between idealism and realism is so wide that it is not so easy to align the two, together to satisfy public sentiment on such issues.
The concept of plea bargain has been under criticism since its birth in USA in early 19th century. There is traceable literature showing that the process of plea bargain, was grossly misunderstood even in developed countries where it was initially condemned and later incorporated into criminal justice system and was praised for its efficacy to reduce the case load and increased sentencing. The process of plea bargain is gradually being incorporated into more and more criminal justice systems of states because of its efficacy to dispose of criminal cases simultaneously reducing sufferings of both offenders and the victims. The process of plea bargain is now being practiced as an integral part of criminal justice system in different countries including Argentina, Brazil, Australia, Canada, China, England, France, Georgia, Italy, India, New Zealand, Nigeria, Republic of Georgia and the list goes on.
Situation in Pakistan is quite extra ordinary because section 25 of NAB Ordinance, is deficient in substance to ensure equitable treatment to penalize the offenders. The law in its present form is offensive to the public morality as the offender does not suffer for his wrongdoings in exchange for return of looted wealth. This extra ordinary provision of releasing the offender upon payment of looted money is not followed anywhere in the world except in Republic of Georgia where it faced same sort of criticism. Subsequently, the law in Georgia was modified and also its scope was expanded to apply to other types of criminal offenses. We must not ignore the fact that we have a judicial system that is dysfunctional to such a big extent that we are forced to dependent upon military court where justice is seen to be morally contaminated. Both state and judicial conscience not willing to reform this dirty state of affairs. The undesirable anomaly in NAB law regarding plea bargain can still be rectified instead of throwing out this useful provision. The release of the offender may accompany with some quantum of imprisonment at reduced scale to be decided by the court. The period served in detention may be reckoned as imprisonment and pronounced as conviction. In India, the offender is awarded up to 1/4th of the prescribed period of imprisonment if he enters into a plea bargain instead of seeking a trial.
It is now a significant and integral part of US criminal justice system and around 90-95% of all criminal cases are settled through plea bargain. It is often said that American criminal justice system would collapse if the system of plea bargain is abolished and if all cases are sent for trials.
China adopted system of plea bargain in 1995 for minor offences where prescribed punishment was three years or less. However, over a period, its scope is being enlarged to apply to other serious offences.
The case of Canadian jurisdiction is very interesting. The concept of plea bargain was a taboo as far back as in 1975. In 1975 the Law Commission of Canada and subsequently, the then Chief Justice Mr. Dickson scornfully condemned the concept of plea bargain. However, by 1989, the Law Reform Commission had to change their stance and boldly asserted that plea negotiation was not an inherently shameful practice. Earlier in 1987, the Canadian Sentencing Commission also recommended to recognize the process of plea bargain as a legitimate practice. The practice of plea bargain now is an integral part of Canadian criminal justice system and in certain cases the victim is also made part of bargain negotiations to promote solace and goodwill among the victims.
The case of Indian jurisdiction is similar to that of Canada’s experience with respect to plea bargain. The process is passing through same transformational and transitional phase in Pakistan at present. Inspired by its success in USA, the discussions on incorporating plea bargain in criminal justice system started in 1980 and after a lapse of over 25 years it was formally adopted into criminal justice system in India. Earlier, from 1976 to year 2005 both academia and the Supreme Court rejected it as immoral and unethical practice in view of dishonest culture. In the year 2005, Gujrat High Court forcefully favored the practice of plea bargain and asserted that realistic profile of pendency and delay in disposal needed fundamental reforms. Serious deliberations on incorporating plea bargain started in 1990. Subsequent, Justice Malimath committee recommended to incorporate practice of plea bargain in criminal justice system to facilitate early resolution of criminal cases and to reduce the burden of the courts. The Indian parliament quickly approved a law and incorporated process of plea bargains to cover the entire criminal justice system. As a result, plea bargains are available for offences with a prison sentence for less than seven years excluding certain offences against women, children and economic offences. Around 10 years later it is found to be useful practice where both prison population and caseload has reduced.
Instead of condemning process of plea bargain in Pakistan, its scope is needed to be enlarged to all sorts of criminal offences instead of restricting it to offences under NAB Ordinance. The prime objective must be reduction of workload and quick delivery of justice. It is time that the reality of failure of our criminal justice system must be accepted. Socio-psychological regressive effect of this failure may be realized and fundamental but meaningful reform may be introduced.
However, we must be careful that such system of plea bargain is not abused by powerful criminals who can commit crimes, spend money and send some other innocent individual to spend time in jail. It is quite possible in a society where it is so easy to file FIRs for the influential persons and it is equally difficult for the weaker. These influential persons would not hesitate to abuse their position to keep the poor opponents in jails with the help of corrupt and manipulative investigation mechanism managed by corrupt, greedy and tamed police investigation officers. The reformed law must ensure some sort of preliminary inquiry by a judicial forum before registering an FIR and stringent supervision of investigation officers must be inbuilt into the law that should inject a system of checks and balance over the investigation process. The investigation process must be two stage to leave a room for summary judicial review to check process of investigation before sending the case to trial court. Greater responsibility should be assigned to the courts to see that the individual pleading guilty does so voluntarily and with complete freedom of choice and informed consent. The prosecutors and the lawyers should have least prerogative. This would need careful deliberations in articulating a flawless reformed law. Such fundamental change in criminal justice system is an absolute essential to mitigate sufferings of both offenders and the victims in a dysfunctional criminal justice system where around 70% inmates in jails are waiting for their trials to commence or complete. Jail population is double their capacity and environment in jails is conducive to transform the ill-fated inmates into hardened criminals. There are no institutions to reform and rehabilitate the imprisoned population and manipulation for dishonest motives is easy.
We have enough examples to borrow sense from developed jurisdictions around the world where this system of plea bargains has a history of developing into a mature and dependable system. Even while doing so, we must be careful to keep in mind that our institutional coherence and integrity and standards of honesty across the society are much lesser than those of developed societies.