Wednesday, October 19, 2005 Saddam's Defence: Main Players and Case

*The 'joys' of International Law*

I actually wanted to write a little about the Home Minister's outright refusal to allow an accused's IMMEDIATE right to a counsel on the basis that it would impede police investigations but I'm trying to dig up an older copy of Juris (a law school publication with student's commentary on pressing legal issue) which deals specifically with this problem.

But suffice to say, this is entirely in line with the government's policy to balance the rights of the accused with that of the public interest (not the victim mind you, the modern legal system doesn't care about the victim except in so much as it creates a case for the state). The balance, in my opinion is tilted rather heavily away from the accused, not least because the state will not provide you with legal counsel in a criminal case unless it involves capital punishment. Of course the Law Society of Singapore provides criminal legal aid if you're poor enough under the Criminal Legal Aid Scheme (CLAS) but given its inherent limitations of budget and personnel, there are figures floating around that 80% of accused are not represented in court. Contrast this with the Legal Aid Bureau which is funded by the state to aid you in civil litigation, with a budget in the millions, a much larger staff, this had led some wags to say that it is easier to get a divorce than to avoid spending years in jail.

Having said that, however, it is not that the system does not have any checks and balances. Very often, the deputy public prosecutors are very aware of this problem and in effect pull double duty to ensure that they are not about to wrongfully convict someone. More than that, they have tremendous discretion to decide whether they want to file charges and what sort of charges they want to file. Whether this situation leads to the very common hazard of plea bargaining will not be discussed in this post without greater information.

At any rate, what prompted some MPs to raise the issue of right to counsel was the fact that it 'Took' a month before he managed to see his lawyer. And while it's all well and good that we need to allow police to carry out their investigations, one wonders what the heck due process and legal rights are for it one is unaware of and incapable of asserting them due to a lack of knowledge.

Now, it is granted that such a state of affairs is not unknown elsewhere. Most Common Law jurisdiction i.e. the commonwealth states do restrict access to counsel the first couple of days. But having said which, we are talking about days with a maximum of 3 days only if a judge permits it. Even Britian's version of the ISA only permits detention without trial for a maximum of about 2 weeks with access to a lawyer midway through (as does ours actually if not for the 'temporary' provisions passed). The situation in Civil Law jurisdictions is a little more nebulous. While it is true that the accused never had an automatic immediate right to counsel, and very often they would only get first access after the 1st week, the situation is changing. More than ever, even countries like France are giving earlier and earlier access to counsel.

But there is a major difference between the two legal traditions which make access to counsel perhaps not as problematic in a civil law jurisdiction. This is because they don't have an adverserial process per se where it is the prosecutor against the defence counsel and each trying her best to win. Instead the judge effectively takes over the investigation (they have a number of judges on the case and the 'trial') right from the get go and it is the judge who will determine the path the investigation takes, what tests need to be done and in fact the judge who will question the witnesses, victim and accused. It is a very fascinating process that is very alien to our concept of criminal justice where the trial is all. Over there, the decision is really effectively made even before the trial starts so thorough is their investigation (which means that there is a very high conviction rate). Thus given a judge's impartiality to the situation and his desire to find out what happened, you don't have the problem that occurs within the common law system where the interest of the two opposing sides is to protect public interest yes, but more fundamentally is their own personal interest in winning the case for the client.

Anyway, back to the original issue *cough*. International law has always been an oddity in so far as it does not have a system for enforcing those laws per se. To take a very Positivist point of view, laws are what the soveriegn says there are, the sovereign being someone common obeyed and not used to obeying others and those rules being backed by force. If one translate this to international law, the lack of any world government capable of enforcing this law becomes very apparently. For without enforcement, it might be 'law' in the widest sense of the world but hardly law in that it actually works. Thus, were the sanctions against Iraq laws? Yes but because her neighbouring countries' refused to enforce them, they were not even a slap on wrist.

This situation is even more complicated by the issue of soveriegn immunity. A head of state generally is immune from all forms of prosecution while serving as the head of state (which gives Jacque Chirac a huge incentive to stay in power as president of france because he's going to face some very tough questions about corruption during his stint as mayor of Paris onces he steps down). And while granting that Saddam was brought down, this was only so because the Americans went in (11 years late but oh well). So if one looks at the defence's case play, it is relatively obvious that they are going to challenge the legality of the trial rather than try to defend Saddam's actions...for good reason.

Finally, to all my Singaporean readers, former PM of Malaysia, Dr. Mahathir is on the defence team. Thought that was worth mentioning out of interest's sake.



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