NAB’s plea bargains paving the way for more corruption

Pros and cons of a very questionable exercise

Going by recent developments, it is as if NAB has suddenly risen from a deep sleep and started flexing its muscles, particularly at major political parties. Though the Bureau existed even during the last two regimes – Musharraf and Zardari — all was well until last week, when the prime minister issued it a stern warning. Subsequently, it became more controversial not only because of some legal lacunas but also due to its mechanism of recovering the misappropriated money.

The whole controversy revolves around Section 25 of the NAB Ordinance, carrying the provisions of plea bargain and voluntary return of amount. The legal maxim that no offence must go without punishment is being grossly violated in this mechanism of accountability and immediate recovery of ill-gotten money. The only punishment provided under these provisions of NAB Ordinance is disqualification from public office. This law carries an inherent fault and does not qualify to provide any penal provision for the accused who has already reached the age of superannuation or one that does not qualify to hold any public office.

As this law is also applicable to citizens, an ordinary man having nothing to do with holding public office or politics can walk scot-free as he otherwise does not come within the ambit of disqualification. The formula under this law remains very simple: make as much black money as you can and return as much as you can through plea bargain. In case of any apprehension of harassment at the hands of NAB officials, just go to its chairman and offer to return some of the amount and rest will automatically go white or legal.

Jurists have their own viewpoints on NAB’s method of prosecution and recovery of embezzled amounts. Some think this law was promulgated by a military dictator with certain targets and has no validation of parliament while others feel plea bargain is a normal way of recovering ill-gotten money. Some also see this law without any legislative flaws and have no objection against plea bargains and voluntary return of amount to the Bureau.

Former NAB deputy prosecutor Asad Manzoor Butt said that the provisions of plea bargain and voluntary return could not be enforced between the parties under coercion or compulsion.

“It is a choice between NAB and the accused. If both parties are willing, then it is not hit by the fundamental right of free trial under Article 10-A of the constitution. Since no regular trail is involved in this bargain, no prosecution is required in the whole process. However, the conviction remains in field – disqualification from holding any public office for 10 years”.

When asked whether or not an agreement reached between the parties – NAB chairman and accused – is binding for approval on the courts established under this ordinance, he said reluctantly: “Yes. It is binding on the court. It cannot disagree as per section 25 of the NAB Ordinance but surely it can come up with its own observation though not affecting the final plea bargain.” He also dispelled the impression that bargain is finalised on amount alleged against the accused, rather it is made on the amount liable to be recovered after going through all available evidence on record.

Harvard Law Graduate Saad Rasool said that such laws do exist in various countries where such bargains are made to urgently recover the amount looted from the exchequer. But on the NAB Ordinance, he said it is an exceptional form of criminal law. Earlier, he said, there existed the Ehtesab Bureau, which was repealed as members of political parties were convicted but they continued contesting elections and holding various public offices. To overcome this problem this Ordinance was promulgated, which subsequently got constitutional protection as well. When asked if any person voluntarily comes to NAB and offers to return ill-gotten money, is NAB bound to receive such an offer? He said “No. NAB must satisfy itself as per the facts and circumstances of the case and then accept any such offer.”

Giving his own viewpoint on overall scheme of NAB Ordinance, Rasool said on some occasions the Bureau should make such bargains but should not disclose it to the accused and continue proceedings against him till he is finally convicted.

Constitutional expert Advocate Muhammad Azhar Siddique said that as far as the plea bargain was concerned it was allowed by the NAB ordinance. The accused, by admitting the guilt and returning some of the amount, is allowed release but the same is not tantamount to acquittal. The cases under NAB ordinance stand implemented after plea bargains but the element of corruption remains as the accused has to face consequences by suffering disqualification for a period of 10 years.

Former Lahore High Court President Abid Saqi termed the Ordinance politically motivated which, he said, was conceived and promulgated by the henchmen of Musharraf. It is being used as a revenge tool against political workers. He went on to say that this country belongs to right-wing forces as all the alleged pious Muslims get off the hook while those whom they claim to be secular are debased and insulted at the hands of law enforcement agencies. He alleged that NAB ordinance was promulgated for vested interests to oust some parties from the political arena and it also does not enjoy parliamentarian wisdom and validation. On plea bargain and voluntary return he said the said provision (Sections 25 of NAB ordinance) have given a license to the corrupt mafia of earning more money by going voluntarily to the NAB chairman and offering him some of the looted money and retaining the major chunk with themselves.

Senior Supreme Court lawyer AK Dogar said that plea bargain is tantamount to conviction, which disqualifies the person from holding any public office. Moreover, he said ordinary people must be punished with imprisonment.

Former member of the Punjab Bar Council Advocate Mushtaq Ahmad Mohal said some provision of NAB Ordinance like voluntary return and plea bargain are against the fundamental rights of the citizens and parliament should immediately strike down this as being discriminatory. He said as the fine imposed by any traffic warden does not amount to conviction, similarly the fine imposed by any authority, not being a court, is not equivalent to conviction.

Senior Advocate NA Butt said that despite all the state machinery and anti-corruption law, they (corrupt mafia) manage to make money. When the state failed in curbing corruption at the time of its commission, how come it can be curbed after the act is over. About the timing of NAB for coming into action unlike previous regimes, Butt said the international establishment was forcing our establishment to curb corrupt practices, and perhaps the present establishment has passed on this pressure on the Bureau. Concluding his remarks, he said: “I am against this law and the mechanism of its recovery from the accused.”

Advocate Anwar Khan said the mandate of the NAB Ordinance must also be to reform society by eradicating corruption but not to give it a free hand by voluntary return of ill-gotten money. Expressing his concern, he said the Ordinance has even given incentive to the corrupt mafia to make money and finally return a certain sum to the Bureau.

“It is creating unrest and dissatisfaction among the common masses who want harsh punishments for the accused. What if the accused is 65 years old or above and there is no possibility of holding any public office since he has already done enough with the state?” he questioned. And what if there is an ordinary citizen who never held any office nor does he want to? In both the cases there will be no punishment for the accused. It is a novel idea in criminal justice system across the world where one admits plundering and looting the public exchequer and is let off by paying only a nominal amount to the accountability authorities.

Besides the jurists, the Supreme Court too does not seem satisfied with NAB’s provision of bargains and voluntary return. In a recent case of NAB in the Supreme Court, Justice Amir Hani Muslim came down hard on NAB for misusing the plea bargain act and required its chairman to satisfy the Court on the question of credibility of the act.

“Under the plea bargain act, a man accused of corruption charges worth Rs100 million is released if he provides Rs10 million, then the same man is restored in his office where he gets involved in more corruption worth Rs200 million, what sort of a process is this?” said the judge in his remarks. “If this is how NAB works, it must be shut down,” he said.

Among the 150 mega corruption cases submitted in the court, the accused like Prime Minister Nawaz Sharif, Punjab Chief Minister Shehbaz Sharif, Finance Minister Ishaq Dar and many other prominent personalities should opt for voluntary return. They won’t face any trial or disqualification provided they return some of the amount alleged against them. Rather, they would become beneficiaries of the NAB Ordinance, getting their remaining amounts cleared as white and legal.

The list consisted of ex-ministers, bureaucrats, former premiers who had been accused of misuse of power, state resources, and corruption in their scope of work. And nothing would be a better opportunity for them than to avail the NAB Ordinance to save their illegally made money.