Constitutional Safeguards
The Constitution of Pakistan, 1973 certainly reflects many of the Articles found in the UDHR, ICCPR and ICESCR. However, the ‘right to fair trial’ was left out, in spite of Pakistan pledging to promote and respect human rights and to take effective measures both in the national and international spheres, in 1948. It was finally inserted in the Constitution in 2010 through the 18th Amendment as Article 10-A.[1]
In addition to this, fundamental rights constituting the right to a fair trial including protection against retrospective punishment, double punishment and self-incrimination have been guaranteed through Articles 12 and 13 of the Constitution of Pakistan respectively.
- Article 10A: Right to Fair Trial
Article 10-A of the Constitution of Pakistan 1973 reads as follows,
“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.”
This Article was included through the 18th Amendment as a fundamental, constitutional right belonging to every person, including all citizens of Pakistan, and extends not only to criminal charges but also to civil rights and obligations.
While the Constitution does not define what a fair trial constitutes, a seven-member bench of the Supreme Court termed it as “the right to a proper hearing by an unbiased competent forum”.[2] The Court, further stated that this means that a Judge must not hear a case in which he has a personal interest whether or not his decision is influenced by his interest, since “justice should not only be done but be seen to have been done”. The Court stated that the right to fair trial was a long-recognized right, now constitutionally guaranteed and ‘by now well entrenched in our jurisprudence’. It further outlined that since the legislature did not define the requisites of a ‘fair trial’, it showed that the intention was to give it the same meaning as is broadly universally recognized and embedded in jurisprudence in Pakistan.
Moreover, the Lahore High Court has also shed light on the ingredients of the right to a fair trial.[3] It held that all courts must be independent, impartial and established under the law. Moreover, all persons brought before the court shall be equal in determination of their rights and obligations, and shall be entitled to a fair hearing within a reasonable period of time. Everyone shall also have a right of counsel, and shall have a right of public hearing if not prohibited by law. Finally, the Court stated that the procedure of the trial as provided by the Statute shall be followed, and the remedy of appeal must also be provided.
Similarly, the Sindh High Court has also outlined the scope of the right to fair trial. It reasoned that the right to fair trial requires that no one be penalized without being given prior notice of the case, a fair chance to answer the said notice, and a fair opportunity to explicate it. Any action contrary to these principles is a violation of Article 10-A of the Constitution.[4] In another case, the Sindh High Court has stated that proper representation of a party including an accused through a counsel of choice is also one of the requirements to fulfil the term ‘fair trial’,[5] which was subsequently reiterated by the Lahore High Court as well.[6]
Furthermore, the Lahore High Court has found that the concept of fair trial necessarily proceeds on the premise that a trial shall be held without inordinate delay.[7] It is important to note that the right to a fair trial falls within the larger umbrella of due process. Due process refers to the right to have a fair trial and the right to have an impartial and independent judiciary separate from the executive.[8] The Supreme Court has stated that the basic requirements of the doctrine of due process entail the provision of an impartial forum within the relevant jurisdiction, due notice of proceedings and a reasonable opportunity to defend oneself.[9]
The Islamabad High Court has also shed light on the right to fair trial by stating that the superstructure of the principle of fair trial was built on the premise that justice should not only be done but manifestly and undoubtedly appear to have been done. Due to this, the Court stated, that every litigant, whether an accused or the prosecution, must have confidence regarding the impartiality and independence of the adjudicator, and that it is not the mind of the adjudicator that is relevant but the impression that one may even erroneously develop which must be dispelled.[10] The Court further elaborated on the “equality of arms” principle by stating that principles of fair trial must be seen as promoting the principles of ‘equating arms on both sides’, which means that a fair balance must exist between the opportunities given to both the sides, and every party to a trial must have equal access to justice while ensuring that neither side is procedurally disadvantaged, making the right to fair trial equally important to the prosecution as well.
- Article 12: Protection against Retrospective Punishment
The right to fair trial also includes protection against retrospective punishment, which is provided for in Article 12 of the Constitution, and expounded upon in different judgments of the superior courts. This Article prevents a person from being punished for an act and omission which was not an offence when committed. This is because an individual cannot be punished for an offence that did not exist in the statute book on the date it was committed.[11] Similarly, a person cannot be sentenced to a punishment higher or different than what was prescribed by law at the time of the commission of the crime.[12]
The Supreme Court has emphasized on the settled rule of law that any statute or a provision thereof forming part of a substantive law, which creates or extinguishes or effects the rights of citizens shall ordinarily have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively.[13] The Peshawar High Court has found that substantive law would not operate retrospectively but prospectively.[14] The Courts also state that Article 12 prohibits giving retrospective effect to any new enactment that enhances the punishment for an offence from the one provided for the same offence under a pre-existing law.[15]
- Article 13: Double punishment and self-incrimination
The right to a fair trial also includes protection against double punishment and self-incrimination, which has been provided under Article 13 of the Constitution. This Article is based on the principle of double jeopardy according to which no person can be punished twice for the same offence.[16] Article 13(b) embodies the principle of protection against compulsion of self-incrimination, one of the fundamental principles of criminal jurisprudence.
For the principle of double jeopardy to be applicable, there must have been an original trial conducted that resulted in an order of conviction or acquittal. If a further trial involving the same parties and identical facts, and the same issue is re-agitated, this second trial would be inconsistent with the protections provided for in Article 13, and therefore be invalidly constituted.[17]
However, it must be noted that if the extent of two offences is different and they fall under different statutes, their independent trials would not amount to double jeopardy.[18] Article 13(a) can only be applicable if a new trial is commenced against the convict, but a variation of sentence of a convict cannot be termed as double jeopardy.[19]
The Supreme Court has also clarified that when the conviction or acquittal of a person is under challenge in appeal or revision, the proceedings are not fresh prosecution, due to which there is no question of double jeopardy.[20] This is because an appeal or revision is a continuation of the trial and therefore, any alteration of sentence would not amount to double jeopardy.
[1] ‘The Right to Fair Trial: Better Late Than Never’ (Shaikh Ahmad Hassan School of Law) available at https://sahsol.lums.edu.pk/law-journal/right-fair-trial-better-late-never
[2] 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 2012 PLD Supreme Court 553
[3] Bilal Akbar Bhatti v. Election Tribunal Multan 2015 PLD Lahore 272
[4] Inbox Business Technologies v. Pakistan 2018 PTD 621
[5] Agha Zubair v. State 2019 YLRN Khi. 93
[6] Muhammad Hashim Raza v. State 1997 MLD Lahore 1130
[7] Qaiser Mehmood v. State 1996 MLD Lah 157
[8] Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore 2011 SCMR 408
[9] Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore 2011 SCMR 408
[10] The Ministry of Interior, Government of Pakistan v. The Special Court 2020 PLD Isb 82
[11] Muhammad Afzal, Ex-Assistant Sub-Inspector v. Senior Superintendent of Police, Operation, Lahore 2005 PLD Lahore 377
[12] Atta-Ullah Khan Niazi, Advocate v. Muhammad Usman Khan, Advocate 2000 P.Cr.L.J 1962; Khan Asfandyar Wali v. Federation of Pakistan 2001 PLD Supreme Court 607
[13] Mst. Sarwar Jan and others v. Mukhtiar Ahmad and others 2012 PLD Supreme Court 217
[14] Mirza Ali Khan v. Hidayat Ullah Khan 2014 P.Cr.L.J 78 Peshawar
[15] Jan Pervez v. Haji Fazal Hussain 2007 PLD Peshawar 179; Mukhtar Ali Qureshi v. Station House Officer, Police Station Westridge. Rawalpindi 2004 P.Cr.L.J 1545
[16] Secretary, Local Government and Rural Development, Government of Punjab, Lahore v. Ahmad Yar Khan 2010 SCMR 861
[17] Nazir Ahmed v. Capital City Police Officer, Lahore 2011 SCMR 484
[18] Muhammad Ilyas Ashraf v. Aitzaz Ahmad, Magistrate 1st Class, Gujranwala 2004 YLR 1299
[19] Khalid Iqbal v. Mirza Khan, 2015 PLD Supreme Court 50
[20] Muhammad Arshad v. State 2015 SCMR Supreme Court 258