Questions over Mumbai legal limbo

December 18, 2008 12:00 am

, MUMBAI, Dec 18 – India could be in breach of international law if the surviving Mumbai attacker is refused legal representation, a human rights group said, amid strong public calls for harsh retribution.

Mohammed Ajmal Amir Iman is currently in police custody and being questioned about last month’s attacks, which killed 172 people, including nine gunmen, injured nearly 300 and provoked worldwide outrage.

But with feelings still running high after the 60-hour assault on India’s financial and entertainment capital, the Mumbai Metropolitan Magistrate Court’s Bar Association has resolved not to represent the 21-year-old Pakistani.

Others who say they would represent him have been publicly condemned as unpatriotic and in one case, activists of a Hindu nationalist political party ransacked an advocate’s home.

Rights groups say that if no lawyer comes forward, Iman — who faces a potential death sentence if convicted — will be denied a fair trial, putting the world’s biggest democracy in breach of domestic and international law.

"Everybody has a right to be represented" during questioning and at trial, said Meenakshi Ganguly, from Human Rights Watch in Mumbai.

"The presumption of innocence and the right to representation is the most basic of human rights," she told AFP.

The 1948 Universal Declaration of Human Rights, which India ratified, enshrines the presumption of innocence until proven guilty in a court of law at which the defendant "has had all the guarantees necessary for his defence".

India’s own constitution also provides for the right to legal aid and representation, as well as a "fair, just and equitable procedure" in court for any defendant, regardless of whether they are a foreign national.

But the honorary secretary of the Bombay Bar Association, M.P. Rao, said the unprecedented nature of the attacks — blamed on the banned Pakistan-based Islamist group Lashkar-e-Taiba — meant normal rules should not apply.

"He (Iman) has waged war on the country. If he’s waged war, the basic requirement of giving him a fair trial doesn’t really become justified," he told AFP.

"So, the majority of our bar members are of the view that he could be tried without anybody representing him on the basis of circumstantial evidence that’s available."

Rao says the door is still open for a foreign lawyer, possibly from Pakistan, to represent Iman as there is "unchallengeable proof" he comes from India’s neighbour and rival. But his comments fit the public mood.

A letter in the Midday tabloid here Wednesday described as "ridiculous" an Indian Supreme Court ruling that it is illegal to deny a defendant the lawyer of his choice.

"How can one defend the indefensible? These loopholes in the system should be plugged immediately… He (Iman) should not be given the right to defend himself in court," the correspondent wrote.

"Those who live by the sword should die by the sword."

Rao said lawyers want to protect the human rights of the victims and their families, but admitted it was a testing moral, ethical and legal dilemma after a wave of apparent Islamist militant bomb attacks across India this year.

"I don’t think we have to sit by convention and the rigours of law," the lawyer said when asked whether India was duty-bound to uphold the rule of law in such circumstances.

Ganguly said the lawyers’ position — a rerun of the reaction after the 2006 Mumbai train bombings — was "completely wrong", not least because it would provide automatic grounds for appeal to the Supreme Court.

Mohammad Afzal, a Kashmiri militant sentenced to death after being found guilty of a 2001 attack on India’s parliament, has cited denial of proper legal aid in his bid to quash the conviction.

"India is a responsible member of the global community and is a member of the human rights committee and will be expected to maintain the standards of human rights law," said Ganguly.


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