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January 14, 2017

The taboo of plea negotiations


January 14, 2017

A plea bargain is a negotiated settlement between the accused and the prosecutors in criminal matters where the accused agrees to accept the charges in exchange for a lesser quantum of penalty for his cooperation.

Recently, the plea bargain provision in the NAB ordinance has attracted unprecedented criticism after the disposal of a case involving the misappropriation of public wealth. The public outcry has compelled the government to hurriedly amend the law to make voluntary returns a stigma.

However, this amendment is not enough to mitigate the challenge to public morality posed by the law in its present form. Under the current law, the settlement through a plea bargain essentially requires the release of the offender without much restraint as he or she will only be disqualified from holding public office.

The criticism is correct to an extent. Since the case surfaced, the media has, almost on a daily basis, been trumpeting the quantum, seriousness and ugly nature of large-scale wrongdoings by a public functionary. The disproportionate media trumpeting created high expectations that the culprits would be awarded severe punishment.

Plea bargains have been criticised since the birth of the concept in the US during the early 19th century. Literature suggests that plea bargains were grossly misunderstood even in developed countries. In most of these countries, they were initially condemned and later incorporated into the criminal justice system for efficacy in reducing the case load and improving sentencing tactics.

Plea bargains are gradually being incorporated into the criminal justice systems of more states because of their efficacy in disposing of criminal cases and simultaneously reducing the suffering of both offenders and the victims. They are now an integral part of the criminal justice system in different countries, including Argentina, Brazil, Australia, Canada and China.

The situation in Pakistan is quite extraordinary because Section 25 of the NAB ordinance lacks substance to ensure equitable treatment to penalise the offenders. In its present form, the law is offensive to public morality as the offender does not suffer for his wrongdoings in exchange for the return of the looted wealth. This extraordinary provision – which allows the release of offenders upon the payment of looted money – is not prevalent anywhere else in the world except in the Republic of Georgia, where it has faced criticism.

Subsequently, the law in Georgia was modified and its scope was expanded to apply to other types of criminal offences. This undesirable anomaly in the NAB ordinance can still be rectified without discarding this useful provision, if the release of the offender is accompanied with a prison term at a reduced scale. For example, in India, the offender is awarded up to one-fourth of the prescribed period of imprisonment if he enters into a plea bargain instead of seeking a trial.

The concept is now a significant part of the US criminal justice system and around 90-95 percent of all criminal cases are settled through the plea bargain system. It is often said that the American criminal justice system would collapse if the plea bargain were to be abolished and if all cases were sent for trial. China adopted the system of plea bargains in 1995 for minor offences where the prescribed punishment was three years or less.  However, over a period of time, its scope is being enlarged so it can apply to other serious offences.

The case of the Canadian jurisdiction is particularly interesting. The concept of a plea bargain was a taboo as far back as in 1975. In 1975, the Law Commission of Canada and, subsequently, the then chief justice Dickson scornfully condemned the concept of plea bargains. 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 recognise the process of plea bargain as a legitimate practice.

The practice of plea bargain is now an integral part of the Canadian criminal justice system and, in certain cases, the victim is also made part of bargain negotiations to promote solace and goodwill among victims.

The case of the Indian jurisdiction is similar to that of Canada’s experience with plea bargains. Inspired by its success in the US, the discussions on incorporating plea bargains into India criminal justice system started in 1980 and after a lapse of over 25 years it was formally adopted into the criminal justice system in India. Earlier, from 1976 to 2005, both academia and the Supreme Court rejected it as an immoral and unethical practice in view of a dishonest culture. In 2005, the Gujarat High Court favoured the practice and asserted that a realistic profile of pendency and delay in disposal needed fundamental reforms. 

Serious deliberations over incorporating plea bargains started in 1990. Subsequently, the Malimath Committee suggested the introduction of plea bargains to facilitate the early resolution of criminal cases and reduce the burden on the courts. The Indian parliament quickly approved a law and incorporated the process of plea bargains to cover the entire criminal justice system. As a result, plea bargains are available for offences with a prison sentence of less than seven years, excluding certain offences against women, children and economic offences.

Instead of condemning plea bargains in Pakistan, its scope needs to be enlarged to all sorts of criminal offences instead of offences under the NAB ordinance.

The prime objective must be the reduction of workload and the quick delivery of justice. However, careful deliberations are needed to streamline the reformed law and mitigate the suffering of both offenders and the victims in a dysfunctional society where manipulation for dishonest motives is easy.    

The writer is an advocate with a PhD degree in criminology.

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