In absentia and due process By Reema Omer

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General Pervez Musharraf’s has been one of the most significant trials in Pakistan’s recent history. It is extraordinary and unprecedented that a former head of the armed forces; has been convicted for high treason, including subversion of the Constitution and the trampling of human rights and the rule of law in the country, giving meaning to CJ Asif Saeed Khosa’s recent observation: “howsoever high you may be; the law is above you.”

Since 2016, however, the proceedings were conducted in absentia – or in the absence of the accused – when Musharraf left the country for treatment abroad. Despite multiple requests by the special court conducting his trial, he did not appear before the court and the judgment was announced in his absence.

The right to be present at one’s trial is a fundamental guarantee and an essential component of a fair trial. Under international law, including Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a party, this right can only be restricted in certain exceptional circumstances in the interest of the proper administration of justice.

The UN Human Rights Committee has stated that for criminal proceedings in the absence of the accused to be permissible in such exceptional circumstances, a number of safeguards must be followed:

First, accused persons must be informed of the proceedings sufficiently in advance, but nonetheless decline to be present. This means necessary steps must be taken to summon the accused persons in a timely manner, to inform them beforehand about the date and place of their trial and to request their attendance.

Second, notwithstanding the absence of the accused, all due steps must be taken to inform accused persons of the charges and notify them of the proceedings.

Third, even when exceptional trials proceed in the absence of the accused, the right to a defence must be strictly observed.

The European Court of Human Rights too has clarified similar conditions for in absentia trials to be consistent with the right to a fair trial: Accused persons must receive notification of their impending trial; they must refuse to be present at trial; they must be able to exercise the right to legal representation; and finally, if they surrender and appear before court at a later date, they should be granted a retrial.

An analysis of General Musharraf’s trial illustrates that these safeguards for a trial in absentia have to a large extent been ensured.

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

In March 2016, General Musharraf left Pakistan for treatment abroad and has not returned since. In July 2016, after he repeatedly flouted directions of the special court to appear, including for the purpose of recording his statement, the Special Court declared him a “proclaimed offender” or a fugitive from law.

It is concerning that the special court gave General Musharraf the death penalty… One hopes the Supreme Court will reconsider this penalty if the decision is appealed and convert it to a life imprisonment sentence.

However, the court continued to make efforts to hear General Musharraf’s defence, and in October 2018, constituted a judicial commission to travel to Dubai and record General Musharraf’s statement through video link. However, General Musharraf refused to cooperate.

Throughout this period, General Musharraf was informed of all the proceedings against him; he was 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.

On March 28, 2019, his counsel made a statement before the special court that General Musharraf would appear for his examination and statement on May 12, 2019. The special court allowed General Musharraf May 2, 2019 to present himself before the court.

Meanwhile, the Supreme Court heard a petition regarding the delay in the proceedings of the case. In its judgment, the SC 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 further stated that control over the proceedings did not vest with the accused, and “to stop further proceedings of the trial, in this situation, would be putting a premium on the fault of the absconder.”

Problematically, however, the SC went on to state that since General Musharraf is an absconder, he “has lost the right to audience…and has lost the right to have an advocate appointed to defend him unless and until the accused surrenders before the court.” Thus, the SC directed the special court to proceed with the trial in General Musharraf’s absence if he failed to appear before the next date of the hearing i.e. May 2, 2019.

General Musharraf, however, did not appear once again. In light of the SC’s directions, the special court barred General Musharraf’s lawyer from representing him, and directed a state-appointed lawyer. The court gave General Musharraf until December 5, to record his statement, and when he failed to do so, concluded the trial and announced its verdict on, December 17.

While it should be noted that despite being declared an “absconder”, General Musharraf was still being represented by a lawyer before the special court, it is problematic that he was not allowed to engage counsel of his own under international standards for his defence. Individuals do not have an unqualified right to choose who will represent them during trial. However, there must be reasonable and objective basis for any restriction on counsel – given the importance of trust and confidence that should exist between an accused and their lawyer.

Finally, it is concerning that the special court gave General Musharraf the death penalty, a cruel and inhuman punishment that undermines human dignity. One hopes the Supreme Court will reconsider this penalty if the decision is appealed and convert it to a life imprisonment sentence.

The government, for its parts, must once again re-instate a moratorium on the death penalty, with a view to definitively abolishing the practice in law, so that no person in Pakistan is executed – be it a General Musharraf or some ‘ordinary’ convict.

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

Email: reema.omer@icj.org

Twitter: reema_omer