THE information sheet on former Yugoslav president Slobodan Milosevic, even after redaction, is both horror and terror. It reads as follows:
“Indicted for genocide; complicity in genocide; deportation; murder; persecutions on political, racial or religious grounds; inhumane acts/forcible transfer; extermination; imprisonment; torture; wilful killing.”
The lengthy and complex list of indictments (or charges) against Milosevic was originally contained in three separate indictments for each of three geographic regions – Kosovo, Croatia, and Bosnia – but was consolidated for a single trial before the International Criminal Tribunal for the former Yugoslavia (ICTY), which began on February 12, 2002.
Throughout the preliminary proceedings before the ICTY – and well before his actual trial began – Milosevic insisted on his right to represent himself, rejecting all suggestions that counsel should be appointed to represent him.
The trial chamber of the ICTY duly recognised Milosevic’s right to do so, saying that “the accused has a right to counsel, but he also has a right not to have counsel”.
However, the trial chamber also emphasised that “the right to defend oneself in person is not absolute”.
During the prosecution case, the trial was interrupted on 13 occasions.
66 trial days were lost. The start of the defence case was postponed on five occasions on account of the ill-health of Milosevic.
In the face of his mounting health problems, the trial chamber opined that it was necessary to relieve him of the burden of conducting his own case “with a view to stabilising his health to ensure, so far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the accused’s case and the completion of the trial within a reasonable time in his interests and the interests of justice”.
The concern was to secure for Milosevic a fair and expeditious trial.
Accordingly, the trial chamber ordered that Milosevic be assigned counsel. Steven Kay QC and Gillian Higgins were duly assigned as counsel to Milosevic following their agreement to act.
Upon their appointment by the registrar, court-assigned counsel endeavoured to secure the attendance of witnesses to testify on behalf of Milosevic, managing to call five witnesses to testify from a list of 140 witnesses.
Other witnesses resisted being called, refusing to attend because they disagreed with the decision of the trial chamber to assign defence counsel to Milosevic, contrary to his wishes.
Hard pressed, assigned counsel wrote a letter to the registrar seeking withdrawal from their position as defence counsel. A critical aspect of the request was their inability to obtain instructions from Milosevic, which meant that they were unable to act in his best interest.
The request was referred to the trial chamber as a motion of the assigned counsel to withdraw. The trial chamber heard submissions from assigned counsel and Milosevic as well as the prosecution. The trial chamber took time to consider the matter, following which it ruled that “good cause justifying withdrawal of counsel has not been established”.
The trial chamber considered the presence of assigned counsel was essential to ensure the fair and expeditious conduct of the proceedings. It was in the interests of justice that counsel should remain assigned to Milosevic and should not be permitted to withdraw.
Accordingly, the motion to withdraw as counsel was denied.
So, it is not “a startling new legal proposition” that “lawyers in criminal cases must get permission from the courts to discharge themselves”.
It is neither a new legal proposition that counsel has three main duties: to the court, to the profession, and to the client.
Counsel’s duty to the court is first and paramount. If he is counsel on record, his duty to the court obliges him to seek permission from the court to withdraw.
Counsel is like a filial son who seeks permission to leave the house and obliges with house chores even after a scolding. If he is not able to do them all, he will not leave out all – like the legal maxim in Islam: “Maa laa yudraku kulluhu laa yutraku kulluhu” (whatever which cannot be entirely carried out are not to be entirely abandoned).
Counsel is the epitome of respect, courtesy, decorum, honour and candour. The list goes on. But unlike Milosevic’s list of horror and terror, it is a list of virtues. – The Vibes, August 20, 2022
Hafiz Hassan reads The Vibes
