In a surprise raid on May 6 last year, the country’s National Accountability Bureau (NAB) recovered more than Rs730 million in local and foreign currency notes from the house of Mushtaq Raisani, a senior public servant and secretary finance in the government of Balochistan.
Raisani was quick to confess the crime. He also identified some partners in this bizarre theft continuing for the past several years.
Seven months later, the NAB further surprised the public by entering into a plea bargain in one of the biggest corruption scandals of Pakistan. In a meeting held last month, the NAB Executive Board approved a plea bargain request worth Rs2 billion submitted by Mushtaq Raisani and Sohail Majeed Shah, a contractor and front man of Khalid Lango, a former adviser to the chief minister of Balochistan, involved in the scam.
The NAB entered this plea bargain under Section 25 of the NAB Ordinance 1999, a provision in the law publically debated from time to time. Many experts consider this law encourages corruption. Others view it as the right way to recover money in corruption cases in a country with a weak and prolonged criminal justice system and prosecution.
"Actually, in a society like Pakistan, plea bargain is an ongoing debate on [issues of] recovery and deterrence. Some people think that it is better to recover huge amounts in big cases and return to the national exchequer or the victims. While, others think that this option of recovery [through plea bargain] encourages corruption, encouraging people to clean their hands easily without facing jail," says prominent lawyer Salman Akram Raja. "This is a healthy debate and it should go on along with questions whether such recoveries have punitive and deterrence effect too?"
He feels there is public criticism on Raisani’s plea bargain case because "it is not certain if the looted amount will be fully returned to the national exchequer".
According to Raja, NAB deals can either entail voluntary return or plea bargain. "In a voluntary return, the accused can enter into a deal before the investigation starts and continue to hold his public/official position. While in a plea bargain, the accused promises to return all the looted money or some of it but is barred from [holding] any public/official position for a certain period."
The Supreme Court of Pakistan issued a suo motu notice to the NAB against Section 25 that allows voluntary return and plea bargain in October 2016 which is scheduled for hearing in January 2017.
From 2012 to 2016, the NAB recovered Rs6 billion through plea bargains and Rs13 billion through voluntary returns. Since its inception, the NAB has recovered Rs284 billion while it has settled 917 cases under plea bargain deals and around 2,900 cases under voluntary return deals.
Former Chief Justice of the Supreme Court, Anwar Zaheer Jamali, while hearing the case last September, observed that voluntary return of the embezzled money by public servants under the NAB provisions is increasing corruption and that they should not be allowed to remain in service.
The NAB told the court that a total of 1,584 public servants opted for voluntary return of embezzled funds, of which 165 were employees of the federation, while 1,419 were of the provinces.
On the other hand, former judge Tariq Mahmood says, "This law was promulgated in 1999. We are criticising it now, 17 years after its promulgation."
"Many people are criticising the NAB provisions without any basic knowledge. Nobody can claim, not even courts, that in any plea bargain case in the NAB history liabilities were less than the crime. Also, the person entering plea bargain is deemed convicted and cannot hold public office," says Irfan Qadir, former attorney general for Pakistan and ex-prosecutor general of NAB, tells TNS.
He adds, "The only exception in this provision of the law is that the person the money and does not go to jail. If somebody has objections to this provision, he should challenge this law in the court."
Qadir views voluntary return and plea bargains in the public’s interest. In many cases, people want their looted money back. "For a widow whose money is embezzled in a public fraud, return of her money is more important than accused person’s conviction," he says, adding that we should understand this reasonable classification of the provisions in the law.
"It is not being selective but it is to help people and national exchequers whose money is embezzled. Rather than criticising law, we should point out its misuse. And we should call for an across the board accountability," Qadir concludes.
The concept of plea bargains has been borrowed from the American Criminal Practice Code where attorney general is vested with discretion of prosecution and even dropping of charge/charges. However, with reference to the NAB ordinance, the plea bargain option is exercised by the accused on his own. It is a plea of guilty in exchange for lesser punishment. Such a person is disqualified from holding public office and obtaining loan from banks. If deemed guilty, only imprisonment is waived. Only that the NAB and court concerned have to approve a plea bargain request.
The NAB law was challenged in early 2000. The then chief justice Irshad Hassan Khan said on the issue of plea bargain, "The scheme of plea bargaining envisaged by the NAB Ordinance has been approved for the reason that it will provide an opportunity to an accused who is an investor to play his role in the society after he has cleared his liability.
"The rationale behind the Ordinance is not only to punish those who are found guilty of the charges levelled against them but also to facilitate early recovery of the ill-gotten wealth through settlement. Settlement of disputes out of court is now practised in several developed societies. However, plea bargaining is in fetters -- not desirable in cases opposed to public policy. It should be approved by the Accountability Court and should not be the outcome of pressure or threats."
Interior Minister Chaudhry Nisar Ali Khan and Punjab Chief Minister Shahbaz Sharif have also objected to NAB section on plea bargains and voluntary returns. Pakistan Tehreek-e-Insaaf Chairman Imran Khan has also supported the political view that most of the criminals get benefit through existing legal lacunae in NAB laws.
"Ideally, there should be debate on this law. Parliament and society should debate and discuss whether to amend these laws for deterrence," Raja says. "Like in America, there is a plea bargain option but the person deemed guilty has to go to jail for a small period."
He insists the debate on the NAB law provisions and recovery versus deterrence must be taken up by society and parliament.