Due process

December 03, 2019

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The writer is a legal adviser for the International Commission of Jurists.
The writer is a legal adviser for the International Commission of Jurists.

GEN Pervez Musharraf’s trial is one of the most significant trials in Pakistan’s recent history. It is extraordinary that a former head of the armed forces is being tried for treason and subversion of the Constitution, for the first time in the country.

The proceedings, however, have been conducted in absentia since 2016, when Musharraf left for treatment abroad. Despite multiple requests by the Special Court conducting his trial, he has failed to appear before the court.

The right to be present at one’s trial is an essential component of a fair trial. Under international law, including Article 14 of the ICCPR to which Pakistan is a party, this right can only be restricted in exceptional circumstances.

As per the UN Human Rights Committee, for criminal proceedings in the absence of the accused to be permissible in such circumstances, safeguards must be followed:

First, accused persons must be informed of the proceedings sufficiently in advance but nonetheless decline to be present. Second, notwithstanding the absence of the accused, all due steps must been taken to inform accused persons of the charges and to notify them of the proceedings. Third, the right to a defence must be observed.

Musharraf must be allowed to engage a counsel of his own choice.

The European Court of Human Rights has clarified similar conditions for in absentia trials. An analysis of Musharraf’s trial illustrates that these safeguards have to a large extent been ensured.

He was indicted on March 31, 2014, and pleaded not guilty to all charges. By Septem­ber 2014, the prosecution’s evidence was recorded. However, the defence continued to delay the trial citing reasons including the security and health condition of the accused.

In March 2016, Musharraf left Pakistan for treatment in Dubai and later that year, after he repeatedly flouted directions of the Special Court to appear, the court declared him a ‘proclaimed offender’.

However, the court continued to make efforts to hear his defence, and in October 2018, ordered the formation of a judicial commission to travel to Dubai to record his statement through video link. Musharraf declined to cooperate.

Throughout this period, he was being informed of the proceedings and given adequate notice — even flexibility — to participate in the proceedings; and at all times, was granted the right to have a lawyer of his choice represent him.

Earlier, the Supreme Court heard a petition regarding the delay in the proceedings. In its judgement, it noted the persistent absence of the accused from the proceedings, and held that “if the accused voluntarily chooses not to exercise his right to appear and to be present at trial, it does not infringe on the fairness of the trial”. The court said “to stop further proceedings of the trial … would be putting a premium on the fault of the absconder”.

Problematically, however, the Supreme Court went on to state that since Musharraf is an absconder, he “has lost the right to have an advocate appointed to defend him unless and until the accused surrenders before the court”. Thus, the Supreme Court directed the Special Court to proceed with the trial in Musharraf’s absence if he failed to appear before the next date of hearing.

He once again did not appear. In light of the apex court’s directions, the Special Court barred his lawyer from representing him, but directed the law ministry to appoint another lawyer for his defence. The court has now given Musharraf until Dec 5 to present his defence, after which it has indicated conducting day-to-day hearings to conclude the trial.

While it should be noted that despite being declared an ‘absconder’ Musharraf is still being represented by a lawyer, it is important that he should be allowed to engage a counsel of his own choice for his defence. While individuals do not have an unqualified right to choose who will represent them during trial, there must be reasonable and objective basis for any restriction on counsel given the importance of trust that should exist between an accused and their lawyer.

It is essential for the right to a fair trial to be upheld at all times, and the right to defence — including representation by counsel of one’s choice — becomes even more significant where the accused is not present. This is all the more important in a case of this magnitude, which will not just be judged legally, but also through a political lens.

The Special Court, therefore, should reconsider its decision to bar Musharraf’s lawyer from representing him.

The onus, however, is also on the federal government — which is responsible for prosecuting the case — to ensure in good faith the case is concluded fairly, impartially and expeditiously, and there is accountability for the trampling of human rights and the rule of law in the country by a former military head.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: @reema_omer

Published in Dawn, December 3rd, 2019