Debating truth commission

The law adviser Mainul Hossain recently announced the interim government's plan to formulate laws on plea bargaining, making provisions for the formation of a truth commission so that the businesspeople charged with corruption might confess to their guilt to have their punishment reduced. He said that the proposed truth commission was an idea floated by the interim government to salvage the economy.
Meanwhile, the government has initiated a move to form a committee to be led by Anisul Haque, a senior lawyer, for formulating a draft law for the commission. The move made earlier at the highest level of the interim government for allaying the fear among the business community, has thus far failed in giving impetus to economy.
"Big businessmen got involved in corruption willingly or unwillingly for the shake of their businesses, because of large scale corruption in politics. It is necessary to overcome the economic crisis through reconciliation with the businessmen," said Mainul while talking with the newsmen regarding this commission.
The idea of truth commission has drawn mixed reaction. The debate on it is getting momentum at this point of time. The politicians, academics, lawyers, and businesspeople are furiously debating its political and economic implications.
Though the country's apex trade body, FBCCI has welcomed the government's decision to set up a truth commission, politicians have strongly opposed it. The economists of the country, for their part, have given guarded reaction to the idea.
The key leaders of the major political parties were critical of the proposed body aiming to give corrupt businessmen a chance to escape punishment in exchange of money and expressed doubts whether the proposed commission would be able to function properly.
There are truth commissions in many other countries. But such bodies in those countries usually hear the victims of human rights violation. The Truth and Reconciliation Commission in South Africa was formed to grant amnesty to those who committed abuses during the apartheid era, as long as the crimes were politically motivated and there was full disclosure by the person seeking amnesty.
Bangladesh should go for formulating laws for plea bargain. A plea bargain is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. One of the key arguments in favour of plea bargain is that, it helps courts and prosecutors manage case loads.
Plea bargaining was introduced in India by Criminal Law (Amendment) Act, 2005, which amended the Code of Criminal Procedure and introduced a new chapter XXI(A)in the code which was enforceable from January 11, 2006. This affected cases in which the maximum punishment was imprisonment for seven years; however, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below the age of fourteen are excluded.
Plea bargain as a formal legal provision was introduced in Pakistan by the National Accountability Ordinance 1999, an anti-corruption law. Special feature of this plea bargain is that the accused applies for it accepting his guilt and offers to return the proceeds of corruption as determined by investigators or prosecutors.
After endorsement by the chairman of the National Accountability Bureau, the request is presented before the court which decides whether it should be accepted or not. In case the request for plea bargain is accepted by the court, the accused stands convicted but is neither sentenced if in trial nor undergoes any sentence previously pronounced by a lower court if in appeal. He is disqualified to take part in elections, hold any public office, obtain a loan from any bank and is dismissed from service if he is a government official.
The introduction of a limited form of plea bargaining in France was highly controversial. In this system, the public prosecutor could propose to suspects of relatively minor crimes, a penalty not exceeding one year in prison; the deal, if accepted, had to be accepted by a judge. The critics argued that plea bargaining would give too much power to the public prosecutor, and would incite defendants to accept a sentence simply to avoid the risk of a bigger sentence in a trial, even if they did not really deserve it.
Estonia is another country where plea bargaining has been introduced in the 90s allowing to reduce penalty in exchange for confession and avoiding most of the court proceedings. In that country plea bargaining is permitted for the crimes punishable by no more than four years of imprisonment. Normally one-third reduction of penalty is allowed there.
In Italy, the procedure of pentito (he who has repented), was first introduced for counter-terrorism purposes, and generalised during the Maxi trial against the Mafia in the 1980s. The procedure has been contested, as since pentiti received lighter sentences as long as they supplied information to the magistrates, they have been accused, in some cases, of deliberately misleading Italian justice.
The critics of the system claim that the plea bargain system can put pressure on defendants to plead to crimes that they know that they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanour of the defense lawyer, which puts persons who can afford good lawyers at an advantage.
There are no two opinions that setting up of a truth commission needs to be debated. It should be debated among the politicians, lawyers, businesspeople, and civil society members, especially those who are well-informed of its implications.
The interim government also bears huge responsibility for formation of the truth commission, as there is no parliament for debating on it. No doubt, the formation of a truth commission to salvage the economy sounds quite exciting, but many remain doubtful as to whether it would be able to function properly.
A. N. M. Nurul Haque is a columnist of The Daily Star.