Abstract

Right to fair trial is considered as the basic right affirmed by Islam and recognised by different international documents i.e., ICCPR, UDHR, etc. In Pakistan, the notion of fair trial has been incorporated through Article 10-A through 18th constitutional amendment. The two amendments were made in the US Constitution in 18th and 19th century i.e., 6th and 14th amendments which safeguards right to speedy trial, impartial jury, public trial and equal protection of law. The Investigation for Fair Trial Act, 2013, permits the use of new methods in collection of evidence and also bridles arbitrary powers from being used. However, being dissimilar to the essence of the Constitution, 21st Amendment was made to adopt Pakistan Army Act, 2015 in order to control the extremism. The key purpose of the article is to assess how far the efforts for the enforcement of right to fair trial in Pakistan are sufficient?

Key Words

Fair Trial, Constitution, Pakistan, Fundamental Right, Public Trial, Counsel, Equal       Protection

Introduction

Fundamental rights are those human rights which are secured by the Constitution of that piece of land. The fair trial is one of the key rights which have been recently incorporated in the Constitution of Pakistan. The said right has been provided in the Constitution of USA. It actually prevents governments from abusing their arbitrary powers (Mehar Pervaiz Akhtar v D.G, Excise &Taxation, 2017). It is an essential fragment of the fair justice system which cannot succeed without ensuring fair trial in the society. The right to fair trial means equilibrium between power of government and rights of general public. King John has given the concept of fair trial in Magna Carta in 1215. With the passage of time, the said right evolved in the Constitution of USA through sixth and fourteenth Amendment. The United Nations introduced the said right in UDHR 1948. Article10-A has been incorporated in Pakistan’s Constitution to protect the fair trial and due process of law. 

There are several case laws in Pakistan where this right has been acknowledged by the courts for example in Liaqat Ali Ghugtai,s case, the court said, “the right to fair trial is one of the utmost essential elements of fundamental rights.” (Liaqat Ali Ghugtai v Federation of Pakistan, 2012) The investigation for fair trial Act, 2013 was passed on February 22, 2013 and all citizens of Pakistan and overseas Pakistanis, fall in the domain of this Act. It introduces a procedure regarding investigation and collection of evidence while using modern procedures and strategies to restrict the intelligence and law enforcing agencies from using their arbitrary powers regulated through executive and the judiciary. 

Article 10 of the Universal Declaration of Human Rights (UDHR): 

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. (Un.org, 2018)

Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) explains that: 

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law. (Ohchr.org, 2018) 

In the Constitution of Pakistan, Art. 10-A states that: 

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process (Zain, 2018).

The key emphasis of this study is to examine the role of Judiciary for the enforcement of fair trial in Pakistan and to analyze the effectiveness of laws in protecting the fair trial in Pakistan.




The Notion of Fair Trial in the United States

The Constitution of U.S permits the right to fair trial to all people residing in the US. Under the sixth Amendment, an accused person has certain freedoms i.e., the right to a speedy trial, the right to an impartial jury, the right to a public trial, the right cross examine the witnesses, the right to be informed of pending charges, the right to legal counsel and the right to force favourable witnesses to support at trial through the summon power of the Judiciary. If the person cannot afford to engage the counsel, then the responsibility is shifted on the state to hire a competent counsel for him (Gideon v Wainwright, 1963).

The Fourteenth Amendment of US Constitution became a part of the Constitution in 1868. It imposes restriction upon the states due to which the state cannot dispossess someone of his life, property or liberty. However, in certain circumstances, it can be done but due process of law should be adopted otherwise such an act will be considered against the law. Equal protection of law is available to every person as well.




Development of Fair Trial in USA

The right to fair trial was introduced for the first time in Magna Carta by King John in 1215. Fundamental rights are the natural rights of the people which had been defined in Magna Carta which was introduced in 1215 AD. Certain rights were acknowledged in it (Vincent, 2015:192). The right to fair trial is a core principle of the Manga Carta also reflected in the United States Bill of Rights, (1791) by way of sixth Amendment. First ten Amendments of the Constitution of U.S are also known as United States Bill of Rights. Later on, 14th Amendment was made in 1868 safeguarding due process and equal protection of law. The right to fair trial has also been made part of the European Convention on Human Rights, (1950), Universal Declaration of Human Rights, (1948), International Covenant on Civil and Political Rights and many other constitutional documents all over the world. 




Right to Fair Trial under the 6th Amendment

The right to fair trial under 16th Amendment may be discussed in the following ways. 

Speedy Trial

During the regime of Henry-II, (1154–1189), the English Crown introduced the Assize of Clarendon, a legal document, which comprise of 22 articles, one article deals with speedy justice to all accused persons (Shestokas, 2014). The concept of speedy trial was also introduced in Magna Carta, (1215) under clause 40 which emphasizes on expeditious resolution of the matter without any prejudice (The British Library, 2014). Similar concept has also been observed in Article 8 of Virginia Declaration of Rights, (1776) which advocates for trial of an accused person with minimum possible time. The right to speedy trial was introduced in the Constitution of U.S as 6th Amendment. Speedy trial includes the following four tests. It can be concluded from these tests whether speedy trial has been offered or not. These tests include time period of delay, reasons advanced for such delay, assertion raised by the defendant seeking speedy trial and determination of fact whether such trial was biased or not. (Barker v Wingo, 1972).




Public Trial

Public trial is vital component of Anglo-Saxon jurisprudence through which Americans have inherited. Anglo-Saxon law, the body of legal moralities, triumphed in England from the Sixth to Eleventh century (Encyclopedia Britannica, 2001).

The 6th Amendment of US Constitution provides the public trial to the accused person in all criminal trial. However, the public trial is not absolute (Waller v Georgia, 1984). Under special circumstances, court may be closed for the public (United States v Akers, 1976).

The public trial is conditional and applied in exceptional cases. The Judge will decide whether the trial will be public trial or not keeping in view the nature of case accompanied by its importance in term of public interest i.e. the prearranged crimes cases, rape cases, juvenile cases and through silent witness rule and Classified Information Procedures Act, cases including confidential or secret information (United States v Rosen, 1896). 




Trial by Impartial Jury

A jury that is unbiased lacks prejudice and will give a fair decision or verdict. Sixth Amendment has secured the prerequisite of impartial jury (Gonzales v Beto, 1972) and fourteenth Amendment, on the other hand, ensures the clauses of due process and equal protection (Castaneda v Partida, 1977).   

If jury use arbitrary power, then any defendant has right to challenge it and the Court can exercise its supervisory power over federal courts (Glasser v United States, 1942). It was established rule that if Court authorized the state courts to conduct a jury trial then state should provide unbiased juries. 




Notice of Accusation and to Confront Witnesses

A defendant facing criminal charge has the right to get information about the nature as well as the cause of the allegation leveled against him. The Confrontation Clause has been evolved from both Roman law and English Common law. The right to cross examine protected the right to accused by English Common law. In Roman law, the accused person has right to get the information about his crime. The accused persons has right to be opposed with witnesses against him, which is guaranteed under sixth Amendment of US Constitution. Generally, the defendant has right to cross examine the witness who gives the testimonial evidence against him in the court during a trial. The main purpose of this right is to secure the accused person with the idea of being innocent until charge is approved. This right is applicable only in criminal trials, not civil trials or other proceedings.




Assistance of Counsel

Under the 6th Amendment, defendant should get assistance of counsel in all criminal trials. The choice of the defendant should be considered. He should not be forced to engage such counsel who has conflict with his interest. Effective assistance should be provided so that the case of the defendant can be presented effectively and thoroughly to eliminate any chance of convicting an innocent person for a crime which he never committed. 

When the judicial trial started, defendant should be provided with a counsel for his assistance. Later then that will not full fill the requirement of fair trial. As soon as the adversary proceedings are initiated, a right to legal representation of the accused appears (Brewer v Williams, 1977),

Right to Fair Trial under 14th Amendment

The 14th Amendment becomes part of the US Constitution on 9th July 1868. It gives rights of citizenship and safeguards equal protection of law. It was meant to address problems regarding former slaves supporting American Civil War.  The first section of Fourteenth Amendment contains numerous clauses: the Citizenship Clause, Equal Protection Clause and Due Process Clause. The Due Process Clause imposed restriction upon state and officials of local government that prohibit from denying any individual of liberty, life or property without law. The Equal Protection Clause imposed obligation on every state to afford equal protection to all people under the law as well as all non-citizens, who are under its control. It is based upon a number of judgments rejecting unreasonable or excessive discrimination, which are made against people of numerous groups.




The Concept of Fair Trial in Pakistan

Access to justice includes fair and expeditious trial. The accused should not be punished as under-trial prisoner. He should be present to answer criminal prosecution going on against him and must be provided expeditious access to justice. A number of cases were report in which principle of access to justice was observed where the accused was guaranteed the right to fair trial. However, serious efforts were made in 2010 to incorporate right to fail trial in the Constitution of Pakistan 1973 by way of eighteenth Amendment in the form of Article 10-A. Article 10-A of the Constitution has secured the rights of accused persons in all criminal trials, to get fair and speedy trial, free and fair opportunity of hearing, to challenge veracity of a witness, to engage a counsel and due process which means to provide safeguard to every person from arbitrary use of executive power. 

To get in line the investigation techniques with the rapid development of modern world, Investigation for Fair Trial Act, 2013, was adopted in Pakistan. According to this Act, all citizens of Pakistan living in or outside Pakistan fall in the domain of this Act. It introduces a procedure though which modern techniques may be used to collect evidence. This act prevents the intelligence and law enforcement agencies from using excessive and arbitrary powers. It also introduces a new system of check and balance which is being regulated through Executive and Judiciary. But unfortunately, right to fair trial is being violated frequently due to which judiciary always come ahead to play vital role for enforcement of such right. Military courts, working under the Army Act, 1952, only deal with the matter relating to army but after the incident of Army Public School Peshawar, all political parties agreed to amend the Constitution of Pakistan 1973 by way of 21st Amendment and adopted Pakistan Army Act, 2015. However, the amendment is contrary to the Article 175(3) and 10-A, (fundamental rights) of the Constitution of Pakistan 1973 (Khan, 2015).




Development of Fair Trial in Pakistan

The United Nations 48 members approved Universal Declaration of Human Rights (1948). In 2020, the right to fair trial has been introduced as one of the fundamental right by eighteenth Amendment in Pakistan’s Constitution as Art 10-A. However, the right had already been recognized by courts through a long list of judgments. The Investigation of Fair Trial Act, 2013 adopted to make up the deficiency found in the process of fair trial. This Act aids in collection of data pertaining to investigation with the utilization of modern techniques. The object of this act was to imposed restrictions on the law enforcement organizations from consuming the indiscriminately controls. Hence, this act introduced a new structure of checks and balances upon executive through judicial (Ali, 2015).




Right to Fair Trial

Golden principles of administration of justice includes the concept of fair trial as well as due

Process but its incorporation in the Constitution in the form of article 10-A made it more effective and prominent. Conducting the fair trial is necessary, violation of due process is illegal, and order passed as such is to be void. (Liaqat Ali Ghugtai v Federation of Pakistan, 2012) The accused person has following rights under Article 10-A. 




Speedy Trial

Each indicted individual has fundamental right to get impartial and speedy trial.  Justice should

be provided to the accused person as early as possible. Under the rule of criminal law, if charge against the accused is proved, he should be punishment but in case where he is not found guilty, he should be acquitted. (Jalal Shah v Niaz Akber 2018) 

In case titled, Adnan Prince v State, [2017], the matter before the court was agitated where the charge sheet against the accused was not submitted in the court by the police officials. The Supreme Court that took serious notice of the matter and issued direction to all law officer, police officials and government officers to conceive proper plan/procedure, to prevent the serious delay in submitting charge sheets, challans and interim-challans in court. Action taken against every officer who was found guilty for such delay and copy of the actions taken against them along with minutes should also be referred to the Registrar, SC with complete information about the cases pending before the investigating agency. The court established that Art. 10-A of the Constitution is violated in such case and petition was allowed. 

Opportunity of Hearing

Right to fair hearing finds it roots from the maxim ‘audi alteram partem’ meaning that conviction should be made after hearing. The expression purely infers that a person must be awarded an opportunity of fair hearing for the purpose to defend him. In administrative side, this principle has secured the right of fair play and justice to accused persons. Its application was based upon the principle to enhance administrative efficiency and to meet the end of justice. 

In case, the petitioner stated that Chairman Punjab Board of Technical Education passed the orders regarding cancellation of diploma of Associate Engineer on the recommendation of the Probe Committee which was created after 30-years. He was also not provided opportunity of hearing. The Court issued direction to Anti-Corruption Department to drop the previous inquiry against the petitioner. The department did not issue any show cause notice to the petitioner and had not provided any opportunity of hearing before passing such orders which was a clear violation of the principle of Audi Alteram Partem. The proceeding so conducted was in contradiction of the fundamental rights as mentioned in Art. 10-A of the Constitution. The court set aside the impugned order (Ghulam Sarwar Khan v Chairman Punjab Board of Technical Education, 2015)

In Muhammad Riaz Mehmood v Secretary, Government of the Punjab, [2016], petitioner filed a petition u/s Articles 199, 4, 9 & 10-A. The petitioner was deported from new department to his parent department without issuing any show cause notice and providing any opportunity of personal hearing. The Court declared that the impugned order was violation of principle of natural justice, fair play and against the Article 4, 9 & 10-A of the Constitution of the Pakistan and accepted the petition. 




Right to Confront Witnesses

Under Article 10-A of the Constitution, the suspect individual is entitled to cross examine the witnesses. He should be provided enough opportunity to ask questions from the witness in order to challenge the veracity of a witness. 

In case titled, Jaffar Khan v Syed Moead Ahmed, [2018], a landlord filed a petition under Article 10-A in which he stated that the tenant failed to produce the witness so there was no chance of cross examination. As Art. 10-A of the Constitution secured the right of defendant to challenge veracity of the witness and if Court had not provided the opportunity of cross examination to the defendant, then such evidence was not admissible legally. Both parties had a right to cross examine the witnesses to ascertain truth of the witnesses. Without cross examination, Article 129 of the Qanun-e-Shahadat, 1984 and maxim “audi alterm partem" would be violated. The High Court remanded the case to the trial court with the direction to provide full opportunity of cross examination to the parties as well as to the evidence.     

Every accused person has right to get due process of law and fair opportunity of hearing in all criminal cases. Article 10-A of the Constitution has protected the said right. If application is moved by the accused and the Court has not granted the relief for any reason, then reason must be stated in the judgement. The high court set aside the impugned order and case remanded to the trial court with the trend to decide the case u/s 540 Cr.P.C for recalling the prosecution witnesses for cross-examination, in accordance with law. (Akram versus State, 2015)




Notice of Accusation and Assistance of Counsel

Every accused persons has right to get information about the charges levelled against him. Every accused should have assistance of counsel during trial of the case so that he can defend himself properly. Accused person cannot be restricted in getting this right. He can consult a legal practitioner of his choosing. (Syed Waris Khan v State, 2018)

The court is duty bound to provide a counsel to an accused person on state expense for the completion of trial. Completion of trial should involve due process of law as preserved in Article 10-A, however, undue benefit should be permitted. Every accused person has right to get information about the charges levelled against him in the case. Trial must be concluded within reasonable time. (State v Aijaz, 2013) 

Due Process of Law

Due process means to provide safeguard to every person from arbitrary use of executive power which is exercised without adopting proper course of law. Every person had an inviolable fundamental right after introduction of Article 10-A in Constitution which ensures rule of law and prevents the executive body to use power arbitrary. (Mehar Pervaiz Akhtar v D.G, Excise and Taxation Lahore, 2018)

The main object of trial is to make enable accused to answer criminal prosecution and he should not be punished as jail prisoner. There should be expeditious access to justice without unreasonable delay. It might erode confidence of the public in judicial system and it can add feeling of despair, helplessness and frustration to the already existing miseries and woes. (Dr. Asim Hussain v State 2017) 




Investigation for Fair Trial Act, 2013

The Parliament has passed the Investigation for Fair Trial Act on 22nd February 2013 and the key purpose of the Act was to impose restrictions on the law enforcing agencies not to use powers excessively. Therefore, the said act introduced a system of check and balance through the judiciary and executive. This is a fact that the existing laws do not fulfil the requirements of modern investigation practices and that’s why the Act was introduced to regulate progressive investigative procedures i.e., human intelligence, wiretapping, E-mail or SMS interception, interfering with the property, calling and video-recording etc.

A review committee comprising of Ministers of Defence, Interior and Law has power to be call reports from all applicants and evaluate the report for the purpose to issue further guidelines and directions. If the request for issuance of warrant is not accepted then, Division Bench may be constituted at the request made before the Chief Justice of High Court. Division Bench has power to uphold or alter the decision of judge. The execution of warrants outside Pakistan can be made through service provided subject to mutual legal assistance. A service provider will be bound to give the data to the authorized officer. If request is declined, fine can be imposed up to Rs.10 million or imprisonment for the period of two years (Pakistan Lawyer, 2013). 




Pakistan Army Act, 2015

In Pakistan, the military courts have already been functioning under the Army Act 1952 to manage the issues relating to the Army. However, after the terrorists attack on Army Public School killing over 130 persons together with teachers and students were killed by the terrorists, all political parties agreed to modify the Pakistan’s Constitution and the P.A Act 1952 through the Constitution, (21st Amendment) Act 2015 and the Pakistan Army, (Amendment) Act 2015 respectively.

After improving the P.A Act, 1952, the army benches have authority to conduct military trial of extremists. There were two key legal difficulties in instituting the Military Courts. i.e. being dissimilar to the Constitutional obligation that Executive and Judiciary are separated under Article 175(3) of the Constitution and affecting the right to a fair trial along with the due process which is secured under Article 10-A of the Constitution. To reduce these difficulties, the parliament presented 21st Constitutional Amendment whereby Pakistan Army Act 1952 was introduced in the 1st Schedule of the Constitution according to which terrorists have not right to get the fundamental rights under Art. 8(3)(b)(i) of the Constitution.

Conclusion

Pakistan adopted UDR in 1948 which specifies in its Article 10 that every person has allowed for getting fair and public hearing conducted by unbiased tribunal in all criminal cases. Right to fair trial recognized by Courts through judgments but it was properly introduced in the Constitution of Pakistan 1973 through 18th Amendment under Article 10-A. The main purpose of this act is to prevent the intelligence and law enforcing agencies from using their arbitrarily powers. 

The two amendments i.e. 6th and 14th Amendment in the Constitution of US assurances the right to fair trial to everyone living in Pakistan. The right is applicable in both civil as well as criminal proceedings. Right to pubic trial provided to every accused person in all criminal cases. However, the public trial is not complete, but the court has power that the public trial may be closed in exceptional cases. A jury must be unbiased, lacks prejudice and will give a fair decision. The prerequisite of impartial jury has been secured by 6th Amendment. The right to cross examination has been evolved from both Roman law and English Common law and the accused person has right to get the information about his crime. The accused persons should be confronted with the witnesses. 

Every accused person has right to get fair opportunity of hearing and non-provision of said right violates Art.10-A of the Constitution. The order passed by the Authority without conducting regular inquiry is set aside by the Court. The respondent has right to challenge legitimacy of a witness. The responsibility of the Court is to provide counsel to the accused on State expense if accused is not able to hire the same. Trial must be completed within reasonable time by providing opportunity of fair trial and giving the information about the charges to the accused which are principle of due process of law and right to fair trial.

However, the said article needs attention of the judiciary to be implemented in true letter and spirit while seeking strategies from the US legal precedents.

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