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.