Truth commission: <i>Quo vadis?</i>
Within a fortnight of the first mention of the truth commission and a widespread extolling of its virtues, there is now a committee in place working out the legislative measures needed to implement it. So, the stage of extended protesting of the proposal has gone. Instead, it is perhaps time to place some positive proposals before the committee so that a truth commission (or an organisation with a different name) can deliver the goods effectively.
Plea bargaining was introduced in India through a Criminal Law (Amendment) Act 2005, covering cases where the maximum punishment provided was seven years but excluding offences affecting socio-economic conditions of the country and offences committed against women and children below the age of fourteen.
In Pakistan, plea bargaining was introduced through the National Accountability Ordinance, 1999 (an anti-corruption law). After endorsement by the chairman of the National Accountability Bureau, the request of the accused is presented before the court, which can accept or reject it. On acceptance, even if there is no punishment, the accused stands convicted and suffers some disqualifications. She/he is debarred from standing in elections, holding public office, obtaining loans from any bank, and if the accused is a government official, she/he stands dismissed.
In France, a limited form of plea bargaining that was introduced has been controversial. The public prosecutor could propose a penalty not exceeding one year in prison, which, if accepted by the judge, could spare the accused longer terms.
Anyway, with the clarification that a truth commission is not meant for businessmen alone, the general benefits that it may bring for the people and the state may be discussed in a general way. We do not know what form the truth commission is taking, but we are sure it is not going to be of the Archbishop Desmond Tutu type, which was meant to bring about a reconciliation between the oppressors and the oppressed in South Africa, nor of the type that some other countries have stressed on "reconciliation" or human rights violations.
In retrospect, however, such a commission might have been relevant in the initial days of independent Bangladesh.
If a businessman amasses wealth by selling his product/service simply with an abnormally high profit, it can be criticised as unethical, but not corrupt. After all, a businessman does not run a charitable institution! Making profit is natural, and not wrong as such. But when dubious means and corrupt practices are adopted for undue profit, that is where the crux lies. Some of these practices are:
* Adulteration -- use of harmful (even poisonous) chemicals in food items and fruits, palm oil in edible oil, animal fats in butter, oil and ghee, production and sale of spurious medicine, etc, endangering human lives and health.
* Under-invoicing of imported commodities for underpayment of import duties, and paying even less through on-the-spot bribery.
* Smuggling in and smuggling out of articles to make huge profits.
* Hoarding and creating artificial scarcity to cause price hikes.
Besides these "popular" methods, unscrupulous businessmen devise many more ingenuous methods. All such offences are punishable with fines and also with imprisonment (either category) under the Penal Code of 1860 (and other relevant laws). The Criminal Procedure Code, 1898, is relevant, too.
A corrupt businessman, in the hope of reduced punishment in monetary terms only, and being spared of the threat of imprisonment under the relevant section(s) of the Penal Code, or/and any other relevant Act, will obviously find it convenient to make a clean breast of everything to a truth commission.
The truth commission needs to be a recommendatory body only, leaving consideration of reduction of penalty to the court alone. A legislation (ordinance now) should empower the court alone (and not the truth commission) to reduce the term of imprisonment but not remit it, and reduce the extent of fine as provided for in the statute. That will also ensure that anyone confessing an offence punishable with death penalty or life imprisonment does not get away with monetary penalty alone, but suffers at least a reasonable term of imprisonment.
This interim government, already facing criticism for going beyond its election-oriented charter, may face further flak for going ahead with the task of amendment of vital statutes like the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, and a few others dating back to two centuries. This appears rather brash when an elected parliament is assured only 14 months hence!
Indeed, even an elected government, before proceeding with such a vital change, might have constituted a law commission for giving its recommendations after selling the idea through debates, discussions, questionnaires, etc.
To be fair, however, the interim government in undertaking measures that are far beyond helping the Election Commission in conducting an election alone; the bulk of the people are more than happy with its strong sledgehammer methods on political and the business heavyweights in revealing the hair-raising nature of their corruption.
Thus, in Bangladesh, in order to save load, time and expenditure of the government, the accused may have the advantage of a reduced (all the items proportionately, without eliminating the prison term, businessmen where provided) punishment. For this, there may be a high-powered recommending body, not necessarily by the name of truth commission (apparently a misnomer).
However, if we have a body designated as a truth commission, it should have the power to investigate and recommend its findings to a relevant court which will give a hearing to the concerned person, and on conviction shall sentence him/her to a fine, and/or imprisonment, as provided for in the relevant section(s) of the relevant law(s), but with such proportionate reduction of the duration of the prison sentence, or the extent of fine, as the court may deem fit.
Our criminal law, the Criminal Procedure Code, and relevant statutes should be suitably amended to empower the courts -- not the truth commission -- to consider such reduced sentences.
Mahbubur Rahman is a former civil servant.
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