Dr Fawad Kaiser
A public outcry has followed the revelation that NAB sanctioned the surprise refusal to prosecute an accused senior civil servant in a major corruption case. Corruption is everywhere and is not peculiar to Pakistan but its effects are more visible here simply because the rate at which it is operated is beyond imagination and the enforcement machinery is compromised regularly with increasing instances of plea bargaining introduced into its prosecution. Both former Secretary Balochistan Mushtaq Raisani and contractor Sohail Majeed has agreed to pay Rs two billion in fines for its role in the country’s biggest corruption scandal.This is because plea bargaining deals with the issue of truncating the trial of an offender by accepting some money from him as a fine that the court would have imposed on him, if he had been convicted, while plea bargaining advocates a negotiated agreement, which is meant to shorten the course of trial whereby an accused person makes a guilty plea in order to receive a mitigated punishment. In addition, as found in most cases, he would have agreed to forfeit some portions of his ill-gotten assets to the government. It would have been observed that, in plea bargaining, accused persons usually forfeit sums of money running to millions, even billions in some cases, whereas there is no law prescribing fines close to such amounts of money. We now have not only an administrative criminal justice system, but one so dominant that trials take place in the shadow of guilt plead guilty and waive away their rights, with most defendants doing so through the process of plea bargaining. The Supreme Court, however, has consistently upheld the constitutionality of plea bargaining in a number of cases and has never viewed plea bargaining as presenting an unconstitutional conditions problem.The Court often justifies the use of plea bargains, noting that “[plea bargaining] is an essential component of the administration of justice,†and that “[i]t leads to [the] prompt and largely final disposition of most criminal cases.†Thus, if it came down to evaluating plea bargaining under strict scrutiny, it is highly likely that the Supreme Court would find the continued function of the legal system to be a compelling state interest.Plea bargaining undermines the integrity of the criminal justice system. Instead of establishing a defendant’s guilt and sentence though an impartial process with a complete investigation and an opportunity for the defence to present its case, prosecutors take on the role of judge and jury, making all determinations based on the probability of whether they will win or lose at trial. The end result is a decision that has little to do with the primary objectives of the criminal justice system.Another criticism of plea bargaining is that it allows defendants to escape full punishment by providing them with more lenient sentences. This sends a message to other offenders that justice can be bought and sold and that they can easily “beat the system,†leading critics to believe that plea bargaining can weaken the deterrent effect of punishment. Lenient sentences given to those defendants who plea bargain, and the harsh sentences doled out to similar defendants who refuse and are convicted at trial, lead to large sentencing disparities among those convicted for similar offences, which undermines the entire criminal system.The use of plea bargaining has been vehemently condemned by some legal practitioners and scholars, while others see it as a novel concept of dubious origin in the Pakistan criminal jurisprudence. Our criminal justice system’s attachment to plea bargaining is likely due to more than just its belief in plea bargaining’s necessity and efficiency; in part, it is the fear of change. A legal system will do almost anything; tolerate almost anything, before it will admit the need for reform in its system of proof and trial.But it sure is a sad state when we have a criminal justice system that purports to uphold the constitutional liberties of its rich defendants, but surreptitiously forces most of poor to prison. It is being used to provide soft-landing for influential and elitist law-breakers, while ordinary persons who commit crimes of less economic implications languish in prisons. In view of the “celebrity justice†treatment which the super rich and powerful class of criminal offenders enjoy from the operators of plea bargain, there is the urgent need for the legislature to carry out an immediate amendment of extant laws on plea bargain to provide stiffer penalty for offenders. This is the only panacea to curbing corruption in Pakistan.Criminal justice today is for the most part a system of pleas, not a system of trials. This is particularly so in Pakistan where the corrupt have the tendency to use their power, influence and loot to subvert prosecution. Again, in an environment where the judiciary is believed to have been compromised and some people are protected by immunity, it becomes very challenging to exhaustively and genuinely battle the monster of corruption. Use of plea bargaining cannot be entrusted to the whims and caprices of NAB, law-enforcement agencies and the courts. There is need for legislative intervention by providing for it in a statute and also by stipulating guidelines for its applicability. To effectively maximise the benefits of this approach to correction, clear sentencing guidelines should be put in place to mitigate the likelihood of flagrant abuse by operators of plea bargain in the country’s criminal justice system.
The effect of lack of such guidelines played out in the now infamous case of former Secretary Balochistan, Mushtaq Raisani concludes that its use results in a disparity of punishment. The concept may also serve larger interest of justice if extended to other crimes, especially offences commonly committed by ordinary people and most particularly in the case of first-time offenders. This is necessary because in the US, the use of plea bargaining is not restricted to financial crimes. One can only look forward to a day when an accused person who confesses or pleads guilty on the basis of a plea bargaining procedure, for example, to a charge of murder would be convicted instantly and given, say 10 years in prison, instead of being required to undergo a full-scale trial and where found guilty at the end, be sentenced to death or life imprisonment.
