Terrorism is amongst one of the most heinous of crimes we know today, apart from other acts such as human trafficking, slave trade, genocide and modern piracy. These atrocities, more often than not, attract a wave of public empathy and emotion, which in effect, drive how numerous institutions in our legal system respond.
The article in the “The Hindu”, published in India on 30 January 2009, talks of how the Mumbai Magistrate Court Bar Association of India has passed a resolution which declared that none of its members would defend Mohamed Ajmal Amir Iman, the sole survivor of among those involved in the Mumbai bombing which took place in November of last year. The Author V. Venkatesan, quite rightly, outlines several provisions in the Indian Constitution and Code of Criminal Procedure which demands such right to be afforded to this individual, irrespective of the charge against him. With reference to four prominent lawyers, the article also talks of how the charges are indefensible in nature, owing to the large number of casualties and eye witnesses to the crime, and of course, the public outcry which followed later.
During the course of an interview on Federal News Radio, Cully Stimson, Deputy Assistant Secretary for Detainee Affairs from the American Department of Defense named 13 law firms, whose attorneys have clients in Guantánamo and urged thier corporate clients to take their business elsewhere. "You know what, it's shocking," he told his audience. "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms." He then said the law firms’ efforts might be funded by "monies from who knows where." This is the stigma which surrounds these accuseds today.
In more recent times, there has been a departure from noble notions of civil liberty and justice by a large number of countries in response to the growing threat of global terrorism. The United States, whose Constitution or the Declaration of Independence was founded on the basis of equality and freedom, passed the Patriots Act which gives the government the power to defy all privacy laws, and arrest and detain without trial. Similar case is seen in Malaysia who passed the ISA and the ESCAR to curb the threat of communist insurgents. Most positivists would argue that, since such laws are passed legitimately by the legislature, it is to be honored. This view maybe justified with reservations, as legislatures understand an administrations’ efforts towards making the nation a safer place, especially in the face of such threat. However, in India this is not the case; there is no ISA or Patriots Act equivalent in India which deny the accused the right to legal representation; but rather, there is the derisory resolution of the Mumbai Bar.
Coming back to our case, over and beyond the Bar resolution, the Author also outlines several lawyers who are reluctant to act as defense counsel solely due to the stigma the charge attracts. The case is especially true in countries like the Maldives which is very small in size compared to most countries on the world atlas. There odious crimes such as murder and rape occur very seldom, sometimes years apart and attract scandalous status almost immediately. The smaller the country, the more pressure such crimes brings to criminal defense lawyers in the form of public emotion against them. However, it has to be remembered that lawyers are well beyond the stature of a layman. His sole duty should lie to justice and justice alone. In that respect, lawyers should be duty bound to [at the very least] ensure that those on trial are afforded an adequate defense.
Defense does NOT mean getting the person acquitted. This has to be emphasized. The notions of affording a person to defend himself are to make certain that his side of the story is heard before a verdict is delivered. His side of the story includes his mental state of mind, mens rea and any subsequent procedural matter such as evidence is dealt so justly. One may think that this is injustice and the person may go squat free on grounds of mere technicality. And who is at the bottom of all of it? Of course the defense lawyers!
This is the very sacred foundation on which any democratic country’s justice system is built upon. One of the first things we learn in law school is that “it is better to acquit a 100 guilty people, than to convict even ONE innocent person”. This alone should warrant any self respecting lawyer’s consideration. And to the whole Mumbai bar has condemned it.
In America, two military lawyers (JAG) assigned to defend alleged terrorists imprisoned at Guantanamo have won awards saluting "their commitment to ensuring that due process of law is provided to those charged with criminal offenses.” The December awards drew no press notice. The following in an excerpt from the acceptance speech given by Navy Lt. Cmdr. Charles Swift.
“…How we treat and try those that we consider enemies is perhaps the greatest reflection of our values. Our nation was founded on the basic principle that all are equal under the law. That principle has, under the weight of labels, anger, and fear, gotten lost in Guantanamo. In Guantanamo, we have so lost sight of our values to the point that a man may be convicted and sentenced to death based on evidence obtained through coercion without the opportunity to confront his accuser’ or even known the evidence against him. And if by some unlikely turn of events, the accused is acquitted he may still spend the rest of his life in jail.”
The Rev. Martin Luther King Jr. once wrote, "Injustice anywhere is a threat to justice everywhere." We have to ask ourselves, what if the government arrested YOU on unfounded terrorism charges? What if your lawyer was afraid to zealously defend you (as required by the model rules)? What if your lawyer was so afraid, he wouldn't even tell you that he wasn't able to zealously defend you? The Author rightfully points that our case that the case maybe “indefensible in view of the brutal massacre of innocent civilians in full public gaze. But issues of guilt” are to be determined by a Court of Law and NO-ONE ELSE. This “fear among the lawyers has brought disrepute to the Indian legal tradition”, and I concur!
The article in the “The Hindu”, published in India on 30 January 2009, talks of how the Mumbai Magistrate Court Bar Association of India has passed a resolution which declared that none of its members would defend Mohamed Ajmal Amir Iman, the sole survivor of among those involved in the Mumbai bombing which took place in November of last year. The Author V. Venkatesan, quite rightly, outlines several provisions in the Indian Constitution and Code of Criminal Procedure which demands such right to be afforded to this individual, irrespective of the charge against him. With reference to four prominent lawyers, the article also talks of how the charges are indefensible in nature, owing to the large number of casualties and eye witnesses to the crime, and of course, the public outcry which followed later.
During the course of an interview on Federal News Radio, Cully Stimson, Deputy Assistant Secretary for Detainee Affairs from the American Department of Defense named 13 law firms, whose attorneys have clients in Guantánamo and urged thier corporate clients to take their business elsewhere. "You know what, it's shocking," he told his audience. "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms." He then said the law firms’ efforts might be funded by "monies from who knows where." This is the stigma which surrounds these accuseds today.
In more recent times, there has been a departure from noble notions of civil liberty and justice by a large number of countries in response to the growing threat of global terrorism. The United States, whose Constitution or the Declaration of Independence was founded on the basis of equality and freedom, passed the Patriots Act which gives the government the power to defy all privacy laws, and arrest and detain without trial. Similar case is seen in Malaysia who passed the ISA and the ESCAR to curb the threat of communist insurgents. Most positivists would argue that, since such laws are passed legitimately by the legislature, it is to be honored. This view maybe justified with reservations, as legislatures understand an administrations’ efforts towards making the nation a safer place, especially in the face of such threat. However, in India this is not the case; there is no ISA or Patriots Act equivalent in India which deny the accused the right to legal representation; but rather, there is the derisory resolution of the Mumbai Bar.
Coming back to our case, over and beyond the Bar resolution, the Author also outlines several lawyers who are reluctant to act as defense counsel solely due to the stigma the charge attracts. The case is especially true in countries like the Maldives which is very small in size compared to most countries on the world atlas. There odious crimes such as murder and rape occur very seldom, sometimes years apart and attract scandalous status almost immediately. The smaller the country, the more pressure such crimes brings to criminal defense lawyers in the form of public emotion against them. However, it has to be remembered that lawyers are well beyond the stature of a layman. His sole duty should lie to justice and justice alone. In that respect, lawyers should be duty bound to [at the very least] ensure that those on trial are afforded an adequate defense.
Defense does NOT mean getting the person acquitted. This has to be emphasized. The notions of affording a person to defend himself are to make certain that his side of the story is heard before a verdict is delivered. His side of the story includes his mental state of mind, mens rea and any subsequent procedural matter such as evidence is dealt so justly. One may think that this is injustice and the person may go squat free on grounds of mere technicality. And who is at the bottom of all of it? Of course the defense lawyers!
This is the very sacred foundation on which any democratic country’s justice system is built upon. One of the first things we learn in law school is that “it is better to acquit a 100 guilty people, than to convict even ONE innocent person”. This alone should warrant any self respecting lawyer’s consideration. And to the whole Mumbai bar has condemned it.
In America, two military lawyers (JAG) assigned to defend alleged terrorists imprisoned at Guantanamo have won awards saluting "their commitment to ensuring that due process of law is provided to those charged with criminal offenses.” The December awards drew no press notice. The following in an excerpt from the acceptance speech given by Navy Lt. Cmdr. Charles Swift.
“…How we treat and try those that we consider enemies is perhaps the greatest reflection of our values. Our nation was founded on the basic principle that all are equal under the law. That principle has, under the weight of labels, anger, and fear, gotten lost in Guantanamo. In Guantanamo, we have so lost sight of our values to the point that a man may be convicted and sentenced to death based on evidence obtained through coercion without the opportunity to confront his accuser’ or even known the evidence against him. And if by some unlikely turn of events, the accused is acquitted he may still spend the rest of his life in jail.”
The Rev. Martin Luther King Jr. once wrote, "Injustice anywhere is a threat to justice everywhere." We have to ask ourselves, what if the government arrested YOU on unfounded terrorism charges? What if your lawyer was afraid to zealously defend you (as required by the model rules)? What if your lawyer was so afraid, he wouldn't even tell you that he wasn't able to zealously defend you? The Author rightfully points that our case that the case maybe “indefensible in view of the brutal massacre of innocent civilians in full public gaze. But issues of guilt” are to be determined by a Court of Law and NO-ONE ELSE. This “fear among the lawyers has brought disrepute to the Indian legal tradition”, and I concur!
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