Right to Fair Trial

Speech Made at a Sideline Event of the 54th Session of the United Nations Human Rights Council in Geneva (virtual attendance)

By Tazeen Hasan

September 15th, 2023  

Ladies and gentlemen, distinguished delegates, and esteemed participants, allow me to introduce myself; I am Tazeen Hasan, serving as the Advocacy Manager for Justice For All Canada. It is an immense privilege to address this gathering during the 54th session of the Human Rights Council in Geneva. I extend my heartfelt gratitude to the organizers, namely the Universal Human Rights Council Kashmir Institute of international relations and the World Muslim Congress, for extending this invaluable opportunity to me. It is rather a coincidence that the 54th session commences on the heels of the G20 meeting, which concluded merely a day ago, wherein the world's most influential and geopolitically potent nations converged to deliberate upon the future of our planet. Delhi G20 Declaration emphasized the importance of all states acting in accordance with the Purposes and Principles of the UN Charter in its entirety.  

Unfortunately some of these influential nations are, regrettably, prominent examples of transgressors against international standards of fair trial. Our topic of discussion today. I am specifically referring to India, and China in this regard.

Regrettably, time constraints prevent me from delving deeply into the extensive transgressions of these nations. Nevertheless, in my capacity as the Advocacy Manager for Justice For All Canada and as the overseer of the JFA Prisoners of Conscience campaign, I have diligently observed the legal proceedings and the prison experiences of select individuals of conscience. Furthermore, I maintain close connections with the families of some of these detainees, their lawyers, and some former Kashmiri prisoners, local journalists and human rights defenders. Today, I aim to highlight the blatant violations of the right to a fair trial endured by Kashmiri detainees and sufferings of their families through the ordeal of a single Kashmiri prisoner Shabir Shah who has already endured 37 years in prison without trial. I also wish to remind the UN Working Group on Arbitrary Detention of their responsibilities toward these often-overlooked detainees, whose arbitrary incarcerations are as glaring as the noonday sun.

Ladies and gentlemen, it might astonish many of you to learn that Shabir Shah, a distinguished Kashmiri leader and the very first Prisoner of Conscience supported by Justice For All, has endured a staggering 37 years in custody. These years were marked by non-consecutive detentions, all devoid of any convictions. The sheer scale of this imprisonment is nothing short of significant; Shabir Shah was first apprehended at the tender age of 14, and today, at the age of 70, he continues to languish behind bars.

The last time Shah was arrested was in August 2017. His trial began after five years in detention. 

I want to remind this esteemed session that prolonged detention without trial is a violation of fair trial standards and the detention is considered arbitrary in customary international law. 

Time and again, Shah has been subjected to detention without the formal charges being brought against him. Ironically, this practice is sanctioned by Indian laws like PSA (Public Safety Act) and the UAPA (Unlawful Activities Prevention Act).  Under the PSA, individuals can be whisked away into custody based on vague and nebulous allegations of "acting harmfully against the security of the state or the maintenance of public order." 

These laws grant Indian authorities the power to detain individuals without the possibility of bail, systematically denying their right to a fair trial. Amnesty International and other human rights organizations have labeled these laws as unlawful. In essence, this amounts to a grotesque mockery of the foundational principles of the rule of law. 

Imagine, if you will, the anguish and despair that befalls someone who finds themselves imprisoned for the crime of merely standing accused, without the benefit of due process or a fair trial. This is a grave injustice that cries out for the attention and action from the UN Human Rights Council.

Indian law enforcement agencies in Kashmir justify their actions by stating, "We have to keep them out of circulation." It is crucial to recognize that keeping entire Kashmiri political and civil leadership out of circulation is a colonial necessity of the Indian colonial regime.. To maintain public order, or more precisely, to perpetuate colonialism, the entire Kashmir region has witnessed the disenfranchisement of political figures such as Shabir Shah, Yasin Malik, Altaf Shah, Syed Ali Geelani, Qasim Faktu, Ashraf Seharai, human rights defenders like Khurram Pervez, and journalists like Asif Sultan, Fahad Shah, and Sajjad Gul. The Indian regime has not even spared women in their quest to maintain colonial rule, as demonstrated by the unjust six-year detention of women leaders like Asiya Andrabi, a blatant violation of their right to a fair trial. 

On August 5, 2019, when this colonial project underwent a transformation into a settler colonial project, even trade union leaders were not spared. Four years have elapsed, and the majority of them still find themselves languishing in jails located outside of Kashmir, hundreds and thousands of kilometers away from their homes. Due to the nature of their detention being preventive, they are unable to secure bail. The Indian government continues to systematically deny the right to a fair trial to individuals who are not criminals.

And these arbitrary detentions, conducted in inhumane conditions under unlawful laws, are not confined solely to civil and political leadership. Hundreds of Kashmiri young men were detained prior to the G20 summit in Srinagar, ostensibly to preempt any peaceful protests. Journalists have been subjected to harassment through these arbitrary detentions to such an extent that they are compelled to erase their online presence. 

Protection from arbitrary detention is a fundamental principle enshrined in international human rights law. This crucial safeguard serves as a cornerstone of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It underscores the importance of preventing individuals from being detained arbitrarily, without legal justification, or due process. 

The substantiation and validation of the arbitrary nature of detentions under these laws, coupled with the violation of the right to a fair trial, are underscored by revelations from A. S. Dulat, the former head of one of India's premier intelligence agencies. In his memoirs, he candidly acknowledges that Kashmiri leaders, upon reaching the maximum period of detention permitted under the PSA, were immediately re-arrested at the prison gate upon their release. Such practices unequivocally constitute a grave infringement upon the principles of justice and a blatant disregard for the right to a fair trial. 

When we talk about international law at these forums like the human rights council, we use terms like fair trial, arbitrary detention, we often ignore the humanitarian aspects. While we talk about the technicalities of the laws, we often overlook the sufferings of the mothers, wives and children of the victims of arbitrary detention. Though international law explicitly deals with them. 

Imagine the disappointment and agony of the family members of the victim of arbitrary detention, when they wait outside the prison gates to celebrate the release of their father but their father is arrested again in front of their eyes, on charges under PSA. 

I will elaborate more on the issue of fair trial. Under international law, fair trial does not begin with the trial. It begins with the time of arrest, The detainee has to be informed of the charges. 

Shah, now 70 is suffering from heart disease, diabetes, kidney problem, arthritis and many other ailments. 

I will persist in narrating Shah's ordeal to underscore the suffering experienced by the entire Kashmiri civil and political leadership when they are unjustly deprived of their right to a fair trial.

The violation of Shah's right to a fair trial is nothing short of heart-wrenching. His charge sheet remains withheld for five long years after his initial arrest, a blatant injustice. Further anguish is inflicted by placing him a staggering 700 kilometers away from his family in Srinagar, denying him the warmth of home. The injustice continues as he is deprived of adequate medical care, his family denied access to vital medical reports, and his right to seek a second opinion from chosen doctors and surgeons is stripped away. These are the fundamental rights enshrined in international fair trial standards, cruelly denied by the Iranian regime.

To add to this injustice, Shah's daughter must visit him through a glass barrier, unable to embrace her father. His ordeal is exacerbated by solitary confinement, a ruthless attempt to break him mentally and physically, all in the name of forcing him to bow before the oppressive Indian settler colonial regime. This is a tragic tale of fair trial denied and human dignity trampled upon.

This denial of the right to a fair trial extends far beyond Shabir Shah; it is the cruel fate of every Kashmiri who falls victim to arbitrary detention by the Indian authorities in their pursuit of maintaining a settler colonialism project that seeks to mute and disenfranchise Kashmir.

Ladies and gentlemen, distinguished members of the Human Rights Council and esteemed sponsors of this session, I implore you to take action. Initiate a comprehensive investigation into these grave human rights violations committed against Kashmiri prisoners. Let us also collaborate with other UN bodies to take concrete action in line with the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). 

As we stand here today, let us reflect upon the enduring principles of justice, fairness, and human rights, which must always remain inviolable. It is our collective responsibility to illuminate the injustices faced not only by the Kashmiri people but by all individuals worldwide who are unjustly detained, regardless of their nationality or affiliation.

We must tirelessly work towards a future where the fair trial rights of every individual are not just recognized but vigorously protected, where their voices are heard and their dignity upheld. 

Thank you for your unwavering commitment to the cause of justice and human rights.