Why they are legal in a judicial system
Amid the hullaballoo emanating from certain quarters trashing speedy trial courts as a step against democracy, the prime minister announced the ambit of work for these courts. Quoting from a local daily, “Only terrorism cases to be sent to speedy trial courts… All institutions will carefully scrutinise cases before prosecution in the special military tribunals.”
The focus of all those opposing the setting up these courts should be upon dealing with terrorism. If special courts are set up to facilitate this goal, then why such opposition? If those opposing try to do a bit of research and reading, they will find out that even the Constitution of USA vide the Sixth Amendment offers the following provision:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Speedy trial is a right of those being tried criminally and bails may not be granted or if granted restrict the movement of the accused.
The history of speedy trials dates back to ancient times as a liberty of the accused. According to a paper on speedy trial:
“The right to a speedy trial is an ancient liberty. During the reign of HENRY II (1154–1189), the English Crown promulgated the Assize of Clarendon, a legal code comprised of 22 articles, one of which promised speedy justice to all litigants. In 1215 the Magna Carta prohibited the king from delaying justice to any person in the realm. Several of the charters of the American colonies protected the right to a speedy trial, as did most of the constitutions of the original 13 states.”
According to John J Bradley “Most jurisdictions in the US have defined ‘speedy trial’ to be within 75 days of the person’s arrest. This constitutional guarantee is for the protection of both the defendant and society, since persons in jail must be supported at considerable public expense and if a guilty person is mistakenly released, they may commit other crimes.” (February 26, 2013)
According to the Cornell University Law School on Sixth Amendment, “The right to a speedy trial may be derived from a provision of Magna Carta and it was a right so interpreted by Coke.” (Reference to Coke: “We will sell to no man, we will not deny or defer to any man either justice or right.” Ch 40 of the 1215 Magna Carta, a portion of ch 29 of the 1225 reissue. Klopfer v North Carolina, 386 US 213, 223–24 (1967))
It is no secret the cases in the courts can run for years without reaching a closing. Mail Online India reports, “A 37-year-old criminal case pending trial before a Delhi court recently drew the attention of the nation towards inordinate judicial delays with the accused approaching the Supreme Court seeking a quietus to the protracted trial.
But what went unnoticed is the fact that the court refused to acknowledge paucity of judges, huge pendency, inefficient administration and other systemic faults as factors impinging upon the fundamental right to a speedy trial. It goes without saying that a person cannot be allowed to take advantage of his own wrong but to penalise him for the fault of another defies logic.”(Published August 12, 2014)
What we need to address is to correct the fault lines within our judicial system.
The Michigan Law Review in its paper published in 2013 titled “Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems” by Emily Rose, states, “In Barker v Wingo, the Court, warning that the speedy trial right is “amorphous,” “slippery,” and “necessarily relative”, rejected a fixed time period for determining a violation of speedy trial and adopted instead a flexible “balancing test, in which the conduct of both the prosecution and the defendant are weighed” on an ad hoc basis. Rather than focusing only on a set length of time, a proper balancing test was required to include (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. No single factor is necessary or sufficient for finding a deprivation of speedy trial, and other circumstances may still be relevant. And yet court rulings since Barker show that the test may effectively be used to challenge many of the delays common to indigent criminal cases.”
Let’s discuss these benchmarks a little further. The first benchmark is delay of time. If there is a delay of inordinate time it becomes “presumptively prejudicial”, commented upon in the United States vs Thaxton case as follows, “As the United States Supreme Court has explained, this latter inquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time. It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker–Doggett analysis.”
The second is reason for delay. The prosecution may delay trial to suit itself or the defendant may do the same to simply buy time. Both do not exist in speedy trial courts.
The third is time and manner in which the defendant asserts the right. In the case above quoted i.e., United States vs Thaxton, the judgement says, ““The trial court recognised that the failure to assert the speedy trial right weighs heavily against the defendant. Although Thaxton complained of the pre-indictment delay, the trial court’s order noted that Thaxton had not asserted his right to a speedy trial throughout that period of time. The record reflects that Thaxton did not assert his right to a speedy trial motion for discharge and acquittal on February 15, 2010, which was almost 16 months after his arrest.”
The fourth is the degree of prejudice accruing to the defendant which the delay caused. Ruling in the Barker case clearly lays down, “That prejudice should be assessed in light of the interests that speedy trial is intended to protect: (1) preventing oppressive pretrial incarceration, (2) minimising the accused’s anxiety and concern, and (3) limiting the possibility that the defence will be impaired. The clock begins running against the government after “arrest, indictment, or other official accusation” triggers it.” (Emily Rose in the Michigan Law Review in its paper published in 2013 titled “Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems”)
So those who oppose the speedy trial courts do so in my opinion without knowledge. Legal or otherwise.
The reference quoted are awesome
Military Courts are a trap by politicians for the Army. Political parties/mafias have their own terrorists to protect and when they have to decide which case is to be sent to court, the results of the whole exercise are obvious. Some categories of people are otherwise being exempted.
Why is judiciary not taking part in the fight against terrorism that the nation is faced with? Politicians and the Government is visible but where is the State of Pakistan? Where are the State's institutions?
Nazir Ahmed
YAA
Thanks for sharing a well argued Article;
The speedy courts are step in the right direction, but with the speeches in the NA by Achackzai, PPP ,some other members was disappointing. Fazal ur Rahman , JI boycott is understood but boycott by PTI/Imran Khan is really BAD, proves he is under Sh Rashid and JI influence
Under these circumstances Army has to be cautious?
Regards
Shahbazthuthaal
Dear Ms. Ali,
With reference to your Op-Ed "Speedy trial courts" I think you need to watch this edition of Belaag with Ejaz Haider:
http://www.dailymotion.com/video/x2dnhvc_bay-laag…
Cheers!
Me
Yasmeen
Indeed a true picture. You have become unbeatable , keep it up.
The "hullaballoo emanating from certain quarters trashing speedy trial courts as a step against democracy" has nothing to do with our religious and political leaders' love for democracy. They are far more concerned about their need to protect their own party positions and their personal advantages and wealth. They will find many methods to delay and obfuscate the whole process. Let them enjoy their word games and lavish meals, while the country weeps and suffers at the endless killing of innocents.
Thank you for taking up this crucial cause in the fight against terrorism.
In the context of Pakistan,because of delays,added elements creep in.
For instance the jail breaks of Bannu,DI Khan,Kohat ,Quetta etc.
Those arrested on heinous crimes escaped.A speedy trial would have ensured punishment ,perhaps execution.
Can there be any Defence for the criminal delay.
Those who escaped committed many more serious crimes.Indeed we do not know how many were rearrested.Our Courts and criminal justice system should either improve drastically or alternate systems for relief be set up.
No one can logically deny the necessity of speedy trials
provided all the demands of the justice are met and courts are presided over by properly experienced legal people.
SHW
Army will do do what the civilians could not do. BeNazir murder case is included in the list.
Justice will be done when the cold blooded killer of Salam Taseer whose cold blooded killing was celebrated by mullas of all shades and hues, of all shapes and lengths of beards, whose killer and murderer was branded as ‘mujahid’ by these mullas just as the mass murderers Baitulla and Hakimulla Mehsud were branded ‘mujahids’ by Jamaat e Islami and the other extremist fundo parties and groups. The Sharis Brathrain are severely intimidated by the fundo mullas who regard Taseer’s killer as ‘mujahid’ and who have put the Sharifs on notice that if this criminal and murderer is hanged Sharifs family would be targeted. That is ‘justice’ Sharif style!
I would like to see Salman Taseer’s murderer hanged for his heinous crime. He is not a mujahid of any description but worst than a common criminal.
The religious extremism has become a huge problem among Muslims. The TTP terrorists or others, such as the recent Paris murderers are not doing any favours to Islam or the Muslims at large. The Quran does not support such actions in the name of God or the religion.
There is no doubt in my mind that the powerful West has been involved in great crimes after 9/11. The invasion of Afghanistan, Iraq, Libya and proxy war against Syria are the examples of their crimes. But killing innocent people, no matter who they are and what nationality they belong to is not a Jihad. This is something the backward Jihadists fail to realise.
The Muslim societies badly need general education, industrialisation and must get ahead in science and technology to claim their place among the nations around the globe. The terrorism is not the answer to get ahead among nations.
Basically it is the job of regular courts to provide justice. The civil courts had failed as these were not delivering; therefore I am happy that military courts will provide speedy justice. But what happens after 2 years. These terrorists only are the glove, the hand in this glove is Panta (RAW,MOSSAD, CIA, KHAD & MI 6). There are about 180,000 Seminaries, the Madressas, (the glove) and the hand in these Glove will continue to be there after two years. A few lacs of gloves shall still be available after two years and many billions of rupees would continue to be provided by the hand for the glove. Therefore, we need to cut the hand in the glove and turn the seminaries into proper schools, so that instead of churning out potential terrorists, productive students come out which will re-construct the Nation rather than becoming a glove…. I had given the proposal how it can be achieved a few days back ……
SADEED
Survey shows Pakistanis first option would be to be tried in any UK, US court for all or any charge against them than in court of any Islamic country, least of all in a Saudi court. Says something for justice in Muslim lands!
The Muslim countries are least Islamic and most unfair when it comes to the basic human rights and justice. What they claim and what they really are, are two different things. Saudi Arabia is perhaps the worst country of them all when it comes to justice and basic human rights. In general, most Muslim countries are models of oppression and backward mindset.
Do we, in any "Islamic country" appear to follow even a simple verse of Quran, of Surah Al Maeyda (5:8)
Yusuf Ali
O ye who believe! stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah. For Allah is well-acquainted with all that ye do.
—
Ali Akhtar
Military operations, though essential initial steps; but itself have short-term efficacy and only provides political space; to institute further actions viz. administrative, economic, social and political etc. Even perhaps, more important than military operations (in the long-term) are the psychological operations, geared to change the mind-set, insert a rational counter-narrative and de-radicalization of those gullible enough to be seduced by the wrong propaganda of the extremists. One important ingredient in this mix is the purging of the educational curriculum. We need to take an objective, professional and a holistic look at the problem and develop options to resolve it.
The record of our leadership in tackling such problems is abysmal. A case in point is the inordinate delay and quibbling in the passage of 21st Amendment. We need to take decisive and quick measures. The government claiming a mandate from the people, should not procrastinate and get bogged down by the terrorist/ extremist sympathizers (although the incumbent government, itself is a terrorist/ extremist appeaser).
While, we are doing nothing to stem the rot; the nihilist camp is tampering with the educational syllabi with abandon – history textbooks are being distorted and purged to make them “Islamic”, by removing the names of Raja Dhair, Ranjit Singh and other non-Muslim personalities etc – more on this later.
Although, it is a tall order to change the entrenched mindset of the last four decades; but a start has to be made NOW, if we want to preserve our way of life.
Dear Yasmeen sahiba,
I feel a nice article after a thorough and methodological research on the establisment of military courts.
Your inclusion in it about US constitution and judgements of their courts etc is really made your piece worth reading.
Very very impressed the way you examined this senstive/ticlish issue. I think your judicial acemen also played a vital part in drafting it. Being a practising lawyer you have the courage/potential to convince your opponents. is it someething like this?
Kudos and Shabash!
Yours,
Shakil
Very informative and well researched paper; thanks for sharing. I particularly liked the content about focusing on the causes of delay in dispensation of justice as a balancing test. Understandably, whilst a terrorist would do any thing possible to cause delays, an innocent person would very much like speedy justice so long as he enjoys the right of assertion. The media rhetoric of 'sad day', 'tears' and 'broken hearts' associated with the setting up speedy trial courts is indeed due to lack of knowledge and, if I may add, insincerity of purpose. Ironically, our 'magna carta' of sham democracy was also signed in England; only that eliminated any semblance of opposition and allowed tyrants to rule by taking turns. There is little hope that our lamenting legislators would initiate any meaningful reform of our police, investigating agencies and judiciary. Every day that passes in inaction in this context is a sad day for this hapless nation, for two years down the road we'll be back to square one.
Best regards,
Parvez Akmal
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