FAIR TRIAL: DUE PROCESS OF LAW

Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

INTRODUCTION A newly inserted Fundamental Right, Article 10-A, Chapter-I, Constitution of 

Islamic Republic of Pakistan, 1973, by virtue of (Eighteen Amendment) Act, 2010. It is a world wide well recognized and acknowledged right. An overview of the Right to Fair Trial is as under:–

The “right to fair trial” is seen as an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict quashed.

The right is enshrined in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR).Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights,

the Sixth Amendment to the United States Constitution, and

Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. The aim of the right is to ensure the proper administration of justice.

Though the UDHR enshrines some fair trial rights, such as the presumption of innocence until the accused is proven guilty, in Articles 6, 7, 8 and 11, the key provision is Article 10 which states that:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Some years after the UDHR was adopted it was decided that the right to a fair trial should be defined in more detail in the International Covenant on Civil and Political Rights (ICCPR).

The right to a fair trial is protected in Articles 14 and 16 of the ICCPR which is binding in international law on states that have ratified it.

Article 14(1) establishes the basic right to a fair trial,

Article 14(2) provides for the presumption of innocence,

and Article 14(3) sets out a list of minimum fair trial rights in criminal proceedings.

Article 14(5) establishes the rights of a convicted person to have a higher Court review the conviction or sentence,

and Article 14(7) prohibits double jeopardy.

Article 14(1) states that: “All persons shall be equal before the Courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case

Relationship with other rights The right to equality before the law is sometimes regarded as part of the rights to a fair trial. The

right entitles individuals to be recognized as subject, not as object, of the law. International human rights law permits no derogation or exceptions to this human right. Closely related to the right to a fair trial is the prohibition on ex post facto law, or retroactive law, which is enshrined in human rights instrument separately from the right to fair trial and can not be limited by states according to the European Convention on Human Rights and the American Convention on Human Rights.

Fair trial rights:

The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings:

•           The right to be heard by a Competent, Independent and impartial Tribunal.

•           The right to a public hearing.

•           The right to be heard within a reasonable time.

•           The right to a counsel.

Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. In criminal proceedings the right to a fair trial include minimum the following fair trial rights:

The right to be notified of charges in a timely manner. The right to adequate time and means for the preparation of a defense. The right of the accused to defend him or herself, or the right to a counsel

chosen by the accused and the right to communicate privately with the counsel.

The right not to incriminate oneself. The right to appeal at first instance to a higher Court and the prohibition on

double jeopardy. It also applies to all types of judicial proceedings, whether civil and

criminal. According to the European Court of Human Rights Article 6 of the European Convention on Human Rights and the fair trial rights apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings.

The right to a fair trial applies not only to judicial proceedings, but also administrative proceedings. If an individual’s right under the law is at stake, the dispute must be determined through a fair process.

Now after the insertion of Article 10-A (Right to fair Trial) in Chapter – 1 (Fundamental Rights), Constitution of Pakistan, 1973 the Right to Fair Trial is one of the guaranteed Fundamental Rights and by virtue of Article 8, 9 & 4 of the Constitution of Pakistan, 1973

if any law, or any custom or usage having the force of law, insofar as it is inconsistent with the Fair Trial right, to the extent of such inconsistency, be void, and under the Constitutional Jurisdiction the Superior Courts of the Country may declare such law, custom or usage having the force of law, to the extent of such inconsistency, void.

Article 9 stipulates that no person shall be deprived of life and liberty save in accordance with law.

Article 4 deals with the right of individuals to be dealt with in accordance with law. T

he said Article stipulates; “to enjoy the protection of law and to be treated in accordance with law is the

inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan”.

In the case of Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 it has been observed,

that while interpreting fundamental rights, the approach of the Court should be

dynamic progressive and

liberal keeping in view the ideas of the people, socio-economic and politico culture values which in Pakistan are enshrined in the Objective Resolution so as to extend benefit of the same to the maximum possible.

It has further been observed that he Constitution is to be interpreted in a liberal and beneficial manner which may engulf and incorporate the spirit behind the Constitution and also the fundamental rights guaranteed by the Constitution.

In the case of Arshad Mahmood v. Government of Punjab PLD 2005 SC 193 it is held that the Constitution is a living document

which portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity among the citizens,

therefore, while interpreting its different Articles particularly relating to the fundamental rights of the citizens, approach of the Courts should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.

IN the case of Mushtaq Ahmed Mohal v. Hon’ble Lahore High Court 1997 SCMR 1043 it has been observed that an Article relating to fundamental rights has to be construed liberally so that its benefit/protective umbrella may be extended rather than to restrict it.

Keeping in view the above principle of interpretation of Articles of the Constitution relating to fundamental rights we have examined the Article 9 and found that the Constitution gives guarantee to the citizens that their life and liberty would not be deprived except in accordance with law.

Right of access to justice also comes within such guarantee which means that the accused should have a fair trial.

Thus a fair trial is a fundamental right of an accused person. The Hon’ble Supreme Court of Pakistan in the case of Liaquat Hussain v.

Federation of Pakistan PLD 1999 SC 504 has observed that the right of ‘access to justice to all’ is a well-recognized and invariable right enshrined in Article 9 of the Constitution.

This right is equally found in the doctrine of ‘due process of law’. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. The term ‘due process of law” is summarized as follows ; – (1) He shall have due notice of proceedings which affects his rights;

(2) He shall be given reasonable opportunity to defend;

(3) The Tribunal or Court before which his rights are to be adjudicated shall be so constituted as to give reasonable assurance of its honesty and impartiality; and

(4) It shall be a Court of competent jurisdiction.

In the case of Government of Balochistan v Azizullah PLD 1993 SC 341 it is also held that ; “The right of access to justice includes the right to be

treated according to law, the right to have a fair and proper trial….”

From the above decisions it is clear that an accused involved in a criminal case has a fundamental right to have a fair trial.

Now, the question arises as to whether fair trial means with or without a counsel to such accused person irrespective of his financial position. It has been observed that accused persons who have some means

they always engage Advocates to represent their cases.

The problem arises to accused persons who are poor, pauper and cannot engage a counsel to represent them in a Court of law in criminal proceedings and cases initiated against them

The question was examined by United States’ court in a case of Gideon v. Wainwright (1963) 372 US 335. It was observed as under :–

“Not only these precedents but also reason and reflection requires us to recognize that in our adversary system of criminal justice, any person held into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.

This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crimes, Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.

Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal Courts are necessities, not luxuries.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours.

From the very beginning our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has face his accusers without an lawyer to assist him.”

In another case of Jon Richard Argersinger v. Raymond Hamlin (1972) 407 US 25 while dealing with the philosophy of free legal services Douglas J. observed as under :–

“The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel.

Even the intelligent and educated layman has small and sometimes no skill in the sciences of law.

If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible.

He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him.

Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect.”.

It has further been observed at page 1374 as under : –

“The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.

This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty indigence or incommunicado situation and the State is under, a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required provided of course the accused person does not object to the provision of such lawyer.

We would, therefore, direct that on the next remand dates, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under-trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment date 12th February, 1978.

The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.”

It is not out of place to mention here that so many laws have been enacted on similar subject and large number of amendments have been made in the exising laws, as such, statues and other laws are numerous and complexity in which they are involved, representation by a counsel and assistance by a person learned in law is a since qua non for enjoying protection of Articles 4 and 9 of the Constitution.

As such now it has become essential that a fair trial cannot be visualized without an accused being represented by a counsel of his choice or by a counsel on State expense.

Yet in another case of Suk Das v. Union of Territory of Aruxadal Paradesh AIR 1986 SC 991, at page 993 after considering other judgments on the same subject observed as under :–

“It may, therefore, now be taken as a settled law that free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.”

COMMON VIOLATIONS CAUTION WARNINGS

When a person or a suspect is picked up by the police, on most occasions, his arrest is not promptly recorded in the relevant register, in order to circumvent the constitutional requirement of producing an arrested person before a magistrate within twenty-four hours.

Resultantly, accused persons languish in police lock-ups or in private ‘deras’ or holding cells, until a writ for habeas corpus is issued or an arrest is finally and formally recorded.

There is no concept of informing a person so detained and arrested of the reason of his arrest, access to counsel is seldom provided or facilitated and a ‘Miranda warning’ is seldom given.

The ‘Miranda’ or Caution warnings are a constitutional or statutory safeguard against self-incrimination provided to a person who is going to be arrested and placed in custody by the police.

Caution warnings are mandatory in most countries, though the wording may, and indeed does, differ.

Any statement made by the suspect without being informed of his rights is inadmissible in evidence in most jurisdictions.

But despite the existence of similar safeguards as to arrest and detention in the Pakistani Constitution in the form of a definite, enforceable, fundamental right which acknowledges the right of an accused to legal advice, as well as the right to be informed of the reason of his arrest, the common practice is to subject the accused to torture until he confesses to the crime, regardless of whether he committed it.

CUSTODIAL TORTURE

The law additionally vests the magistrate with an enormous amount of power which can be exercised to contain, if not downright prevent, incidences of custodial torture.

The problem begins when the magistrates, blindly and without application of a judicial mind, give a person into police custody on physical remand.

The problem gets worse when this is done without ensuring that the accused is produced in court.

And it hits rock bottom when the physical remand is blindly and mechanically extended, even when allegations of torture, including physical torture, exist.

The Rules and Orders of the Lahore High Court specifically direct the magistrate to satisfy himself as to the necessity of remand: whether the accusation against the suspect is well-founded, and whether there are good and sufficient reasons for remanding the accused to police custody instead of his own.

The magistrate must examine the case-diaries and previous orders, if any, and most important of all, ensure that the accused is always produced before him. The accused is also to be given an opportunity to raise an objection. However, it frequently transpires that remands are not given in courts and thus the accused cannot have access either to a lawyer or a friend to resist remand on his behalf. Such a practice severely violates the right to fair trial, in addition to other fundamental rights. Not only does it need to be condemned, but those who indulge in it need to be disciplined in accordance with the law.

IDENTIFICATION PARADES

Sometimes an ‘identification parade’ has to be conducted to identify a suspect.

The legal procedure for these ‘identification parades’ is to get permission from the district and sessions judge who deputes a magistrate to go into jails and conduct the same in accordance with the applicable procedure.

The procedure requires that witnesses do not see the suspects prior to the identification process; and that there is no delay between the occurrence of the crime and the time when the parade is held in order to ensure that the memory recall of the witness is reliable.

A certain number of ‘dummies’ have to be mixed up with the suspect in the line-up who are similar in height, physique, features, complexion, appearance and dress. In practice, the police, after procuring or apprehending the suspects, invite the witnesses to the police station, prior to the identification parade, to acquaint themselves with the suspects and, in most cases, take their photographs. This is definitely a negation of the concept of a fair trial.

CONCLUSION The UN General Assembly adopted the ‘Declaration of Basic Principles

of Justice for Victims of Crime and Abuse of Power’ in 1985, which stresses the ‘necessity of adopting national and international measures in order to secure the universal and effective recognition of, and respect for, the rights of victims of crime and of abuse of power’, without prejudice to the rights of the accused.

Pakistan has been slow to legislate in this respect. Our courts have long held that the concept of criminal administration of justice is based on the assumption that a criminal act is injurious not just to an individual but to the society as a whole. If this is indeed the case, maybe it is time to hold that the right to fair trial can only fully be realized by balancing the rights of the victim and the accused with the rights of the society, without prejudice to one another.

READING MATERIAL Nazeer Ahmed alias Papu V. State 2010 YLR 722 Mureed V. State 2010 MLD 318

Samad Electronic V. Tariq Sherwani 2008 SCMR 177

Hidayatullah V. The State 2007 YLR 1311 Matloob Hussain V. State 2005 MLD 1101. Dr. Abdul Jalil V. State 2005 YLR 3213

Pearal V. State 2005 YLR 358 Mir Ghous Bakhsh Bazenjo V. The State 1969 P.Cr. L. J 991

Mehram Ali & others V. Federation of Pakistan PLD 1998 SC 1445. Abul Ala Muddudi V. Federation of Pakistan PLD 1964 SC 673.

Mst. Banazir Bhutto V. Federation of Pakistan PLD 1988 SC 416. Ghulam Mustafa Khar V. Federation of Pakistan PLD 1989 SC 26.

Benazir Bhutto V. Federation of Pakistan PLD 1989 SC 66. Khan Asfand Yar Wali V. Federation of Pakistan PLD 2001 SC 607.

Mst. Ameer Khatun V. Faiz Ahmed and others PLD 1991 SC 787. Wali Muhammad V. Govt. of West Pakistan PLD 1970 Pesh. 119.

Messer Elahi Cotton Mills Ltd. V. Federation of Pakistan PLD 1997 SC 582. Rauf Bakhsh Kadri V. The State 2003 MLD 777.

Begum Agha Abdul Karim Shorish Kashmiri V. Govt. of West Pakistan PLD 1969 Lah. 438. Abdul Rahim V. UBL PLD 1997 Kar. 62

Muhammad Umar Rathore V. Federation of Pakistan 2009 CLD 25

READING MATERIAL

Criminal Original Petition No. 6 of 2012 in Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan, regarding noncompliance of this Court’s order dated 16.01.2012), decided on 26th April 2012 PLD 2012 SC 553

Suo Motu Action Regarding Allegation of Business Deal between Malik Riaz Hussain and Dr Arsalan Iftikhar Attempting to Influence the Judicial Process in Suo Motu Case No. 5 of 2012, decided on 14th June 2012 PLD 2012 SC 664

Article 10 (clauses 4 to 9) of the Constitution deals with preventive detention. While this phrase has not been defined in the Constitution, J. (R) Fazl Karim, in ‘Judicial Review of Public Actions’ (page 630) relies on Government of East Pakistan v Rowshan Bijaya Shaukat Ali PLD 1966 SC 286

Muhammad Arshad and Others v The State And Others PLD 2011 SC 350

 Dacca v Zakir Ahmed PLD 1965 SC 90.

Liaqat Ali Chugtai v Federation of Pakistan 2012 PLC CS 1062 Lahore.

Zahira Habibullah Sheikh (5) v State of Gujarat 3 SCC 374 AIR 2006 SC 1367; 2006 AIR SCW 1340