HT Home / Blogs Home >
Separated At Birth / Uncategorized / Can Pak Court trying LeT gang examine witnesses in India?
Can Pak Court trying LeT gang examine witnesses in India?
Pakistan wants Indian magistrates and policemen who recorded statements of Ajmal Kasab to appear as witnesses in the Rawalpindi trial of seven Lashkar-e-Taiba activists in the conspiracy behind the Mumbai carnage. Islamabad has also sought the custody of Kasab whose “confessions” are at the core of the cases made out against the accused.
At the root of the Pakistani demands is the terror group’s plea that Kasab’s statements in Indian courts or before Indian authorities cannot be used against them in the Rawalpindi court. But in seeking Kasab’s custody, it seems to be aiming for the Moon.
Arguably, nothing prevents Indian magistrates from appearing in courts of law in Pakistan to corroborate the confessional statement of the sole surviving member of the gang who attacked Mumbai. But the action will have to be voluntary and not under compulsion.
Some Indian jurists have argued that the prosecution’s requirements in Pakistan can be met through a set of questions answered by magistrates from India to save them the hazard of cross-examination in Rawalpindi. But other experts dismiss the request for magistrates’ testimony as a ploy to blame India in the event of the Mumbai case conspirators escaping conviction in Pakistan.
These experts also insist that judicial officers cannot be forced to appear as witnesses before India courts, leave alone courts in a foreign country.
But there must surely be some middle ground available to navigate the Pakistani judicial process towards conviction of those who trained, brainwashed and launched the armed marauders who invaded Mumbai in 2008.
I personally feel that New Delhi must bounce the question off legal pundits to deny Pakistan any room for retrospectively blaming India for the acquittal of persons whom it put to trial after a lot of foot-dragging and prevarication. There is more to the Pakistani move than meets the eye.
Significantly, the demand for Kasab’s custody and the testimony of magistrates came in the run-up to Prime Minister Manmohan Singh’s meeting with Pak counterpart Yousaf Raza Gilani on the sidelines of the SAARC summit in Bhutan. The intent is obvious: Islamabad wants to show to the international community that India has to do its bit to take forward the case on which it has predicated resumption of the bilateral dialogue suspended after the Mumbai attack.
For purposes of debate, I propose the following steps short of sending Kasab home or making our judicial officers appear before the Pakistani court:
1) Magistrates can answer questions in writing and thereafter take more written questions by way of cross-examination by defense lawyers;
2) They can testify through teleconferencing;
3) Video recordings of Kasab’s confessional statement can be shared with the Rawalpindi Court;
4) The Judge trying the case be invited to India with prosecution and defense lawyers to cross examine Indian officials and magistrates;
5) The question of giving the Judge and the lawyers access to Kasab be debated within the Indian establishment and a view taken.
(5 votes, average: 4.2 out of 5)
Loading ...
(4.56 out of 5)
Nikhil Reply:
April 27th, 2010 at 1:14 am
The only middle ground in this situation is controlled access to the accussed and the witnesses. If Pakistani court is serious in pursuing the case but unable to proceed, it can invoke the advisory opinions on legal matters offered by the International Court of Justice (ICJ). That is different from asking the ICJ to take over the case which cannot happen without India’s consent.
On the other hand, India, not Pakistan, could invoke a strong case in the ICJ where it can take up the sufferings of the victims of 26/11 against Pak army handlers and LeT masterminds.
[Reply]
Usman Chaudhry Reply:
April 27th, 2010 at 9:50 pm
Indeed! let it may be in a controlled environment, that is what i intended. Let this be taken positively..
Else if, India can counter ask for inviting a team of legal experts from Pakistan to pursue this and help to prosecute those in a cooperative manner. I know this would be something which will be setting aside previous dossiers but let it not be given a get away chance.
[Reply]
(Dr.) B.N.Anand Reply:
April 28th, 2010 at 2:32 pm
Hello Usman saheb
It is all understandable and should be possible in a normal relationship. The problem at the moment is lack of trust in each other. Both the countries are suspicious as to the hidden agenda of the other party. I am not sure whether it is legally feasible or not, but video conferencing may be the middle path. The magistrates who recorded Kasab’s confession can vouch for it from this end. The prosecutor and defence on the other side can seek whatever clarifications needed to see that the trial in Pakistan reaches its logical end. I believe much of the confidence and trust will be built and regained between the two countries once the trial in Pakistan is expedited and the accused are convicted for their henious crimes.
Regards
BNA.
Nikhil Reply:
April 29th, 2010 at 1:35 am
(Dr.) B.N.Anand,
In a state where assasinations of its leaders are never brought to book, I am far less confident that the masterminds of 26/11 will be given the sentence they deserve. However, we should play along, cooperate so that the trial continues and see where it all leads us.
Let us also not delude ourselves that Pakistan is a normal state where trust is built when talks resume. The real powers that run Pakistan see gestures of cooperation as signs of weakness and rejoice their one upmanship to the bewilderment of others. In a strange way, Pakistan tends to respect what it fears and genuinely seeks normalization of ties when it perceives the other power has unsurmountable brute strength – economic, military and diplomatic.
(Dr.) B.N.Anand Reply:
April 29th, 2010 at 1:38 pm
Hello Mr. Nikhil
Yes , i do agree with every word you write in this respect. But I hope you remember , our country could not act strong even when Pakistani army was totally defeated in 1971 and we had nearly a lakh of Pakistani army soldiers and officers taken as POWs. I do not think , at any time in History, that chance of dictating terms to Pakistan will ever come our way. What our army had won on the battle field, was lost by our incompetent and week kneed negotiating team at Shimla.
But I hope you will accept that in an International relationbship, we have to play a subtle game and go along with a set process. India has an extradition treaty with USA, but still we can not get hold of David Headley. With Pakistan , we do not have any thing like an extradition treaty. So handing over Kasab to them for any trial should be out of question. But in order to bring Pakistani trial to a logical conclusion, the confessional statement of Kasab has to be verified by the trial court in Pakistan. So that is why I had suggested video conferencing as a way to overcome this handicap. Either, we have to give access to Pakistani investigating team to question Kasab. Like we are getting access to Headley. The procedure for doing this has to be settled. But all said and done, video conferencing , if it is agreed upon, could be the middle path to get over this judicial necessity.
Of course, I am not a man of law, but this way to get out of this Pakistani move looks a natural thought without compromising our position in any way.
Regards
BNA
[Reply]
(Dr.) B.N.Anand Reply:
April 29th, 2010 at 6:00 pm
Sorry for having spelled “weak ” wrongly
BNA
Usman Chaudhry Reply:
May 1st, 2010 at 1:20 am
Hello Dr Anand,
Yes, i agree with the trust factor. Infact, i claim no trust between us at all. But the next question is “is there no way out?”. Somewhere atleast one of us has to break the ice.
Building a relationship will take time (decades probably) and not just this one case.
Why i had the proposal of invitation of Pak team that is because i personally believe in person contact something face to face in not just recording statements, meeting accused and legal personals but also to grasp the contextual aspects, body language etc as well. But like mentioned there is no move forward even in this direction as lack of trust hinders this so video-conferencing is the next suitable option.