..::RIGHT TO FAIR TRIAL (A newly inserted Fundamental Right under the Constitution of Pakistan, 1973)

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 or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

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.

The Word “FAIR” defined as in Black’s Law Dictionary (9th Edition), Page- 674

Fair, adj.(bef.l2c) l.Impartial; just; equitable; disinterested <everyone thought that Judge was fair) 2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>.

The Word “TRIAL” defined as in Black’s Law Dictionary (9th Edition), Page-1644

Trial, (15c) A formal judicial examination of evidence and determination of legal claims in an adversary proceedings.

The Word “TRIAL” is also defined under Section 2(7) of the Bankers Book Evidence Act, 1891.

S- 2(7) “Trial” means any hearing before the Court at which evidence is taken;

The Word “FAIR TRIAL” defined as in Black’s Law Dictionary (9th Edition), Page- 676

Fair Trial. (17c) A trial by an impartial and disinterested tribunal in accordance with regular procedure; esp., a criminal trial in which the defendant’s constitutional and legal rights are respected.

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.

The right to a fair trial is often held as a central constitutional protection. It nevertheless remains unclear what precisely should count as a ‘fair’ trial and who should decide verdicts. This already difficult issue has become even more important given a number of proposed reforms of the trial, especially for defendants charged with terrorism offences. This collection, the Right to a Fair Trial, is the first to publish in one place the most influential work in the field on the following topics: including the right to jury trial; lay participation in trials; jury nullification; trial reform; the civil jury trial; and the more recent issue of terrorism trials. The collection should help inform both scholars and students of both the importance and complexity of the right to a fair trial, as well as shed light on how the trial might be further improved.

InPakistanthe Superior Courts, even before insertion of Right to Fair Trial, in Chapter-I of the Constitution, 1973 recognized such right by various pronouncements.

Reported Case;

  • 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

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 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.

Reported Cases

  • 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.

That in Pakistan there is also consensus of the judicial opinion by several pronouncements that if any provision of statue is in conflict with the Constitution (Supreme Law) / Fundamental Rights guaranteed by the Constitution and such inconsistency cannot be reconciled , then the subordinate legislation insofar it is inconsistent can not be given effect and shall be dealt on the basis of “Theory of Reading down” as not to recognize it and determines the rights of the parties just if such statute had no application.

Reported Cases

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 257

* (The author of the article is a Karachi based practicing Advocate of High Court, dealing with Banking, Corporate, Civil, Constitutional, Criminal (Corporate Crimes) Cases