Domestic Law and Jurisprudence
1. Domestic Law
Although the right to a fair trial has been guaranteed explicitly in the Constitution of Pakistan, this fundamental right can also be found being protected, or sometimes being derogated from, within domestic legislation.
- Code of Criminal Procedure 1898 and Qanun-e- Shahadat Order 1984
A primary corollary of the right to a fair trial is the presumption of innocence in criminal trials, and for the burden of proof to be placed on the prosecution. This is codified in Article 117 of the Qanun-e-Shahadat Order 1984. On the right to have witnesses against the accused examined, Article 133 provides that cross-examination can take place after the examination-in-chief, while Article 137 allows leading questions to be asked during cross-examination. Furthermore, Articles 38 and 39 of the Order provide that confessions made to or in the custody of a police officer are not admissible in evidence, unless they are made in the presence of a Magistrate. These provisions were enacted to ensure the right to a fair trial since they reduce the possibility of convictions upon confessions extracted through torture. However, Article 40 allows for recoveries to be made, the text of which states that, “If the confession of the accused is supported by the discovery of a fact it may be presumed to be true and not to have been extracted.” These inconsistencies in statute hamper the administration of a fair trial. Other rules relating to the right to a fair trial, including the admissibility of oral and documentary evidence, the relevancy of facts, and other concerns relating to evidence in trial are also outlined in the Order.
Moreover, the Code of Criminal Procedure 1898 highlights criminal procedure ensuring the right to a fair trial is granted to every individual. Safeguards against detention provided for in the Constitution and the Cr.P.C. 1898, although a part of the right to a fair trial and due process, have been discussed in previous sections (See Section 3.2 & 3.3). In addition to these, Sec. 56 provides that the person to be arrested must be notified of the cause for which the arrest is to be made. Other fair trial guarantees, including the process of appeal to the higher courts, reference and revision, are outlined in Part VII of the Cr.P.C. 1898. Furthermore, Sec. 361 outlines that whenever any evidence is given in a language not understood by the accused, and he is present in person, it must be interpreted to him in open Court in a language understood by him. Hence, this aspect of the right to a fair trial is also guaranteed through the Cr.P.C. 1898.
The right to a fair trial also comprises of a prohibition on double jeopardy. Sec. 403 of the Cr.P.C. 1898 bars the prosecution of an accused who has either been found guilty or has been acquitted to not be tried for the same offence on the existing facts. However, there are exceptions to this prohibition. For instance, Sec. 403 of the Cr.P.C. is applicable if, inter alia, the accused is to be tried for the same offence on the basis of either new facts or evidence, or the same facts are being utilized to charge the accused for an offence on which he was not acquitted or convicted.
However, there is great deal of inconsistency in what is being promulgated in the order and what is practised in real as traditionally courts have been receptive to the idea of accepting confessions made in front of the police as evidence.
- Anti-Terrorism Act 1997
Another aspect of the right to fair trial is the law relating to bail. The ATA restricts this right to a certain extent as Sec. 21D (2) of the ATA 1997 states that all offences carrying the death penalty or imprisonment of longer than three years, under the Act, will be non-bailable,[1] which means it is the discretion of only the Anti-Terrorism Court, a High Court or the Supreme Court to decide whether bail can be granted or not. Sec. 21D (4) of the Act lays out the considerations that the Court must keep in mind when exercising its powers in relation to a person seeking bail. The provisions include the nature and seriousness of the offence with which the person is charged, the character, antecedents, associations and community ties of the person, the time which the person has already spent in custody and the time which he is likely to spend in custody if he is not granted bail, and the strength of the evidence of him having committed the offence.[2] However, the ATA has often been misused in practice- when ATA clauses are incorporated into the FIR mala fide, the chance of the accused receiving bail is greatly diminished, hence impacting his right to a fair trial.
The Supreme Court in October, 2019 issued a judgment reviewing the meaning and scope of the term ‘terrorism’ as defined in the Anti Terrorism Act, 1997 and recommended that Parliament bring changes to the current understanding of the term, which is “too wide”. The judgment also outlined what offences cannot be viewed as terrorism. The court clearly distinguished in its judgment that acts of violence, such as setting things on fire and extortion, committed under a personal vendetta arising out of enmity or hostility are not ‘terrorism’. Personal enmity as a result of contempt for a person’s religion is not terrorism. A person’s involvement in an act of violence owing to hostility or personal enmity against the police, army or government employees does not fall within the scope of terrorism, ruled the court.[3]. The judgment elaborates that “the meanings, scope and import of the term “terrorism” defined in S 6 of the ATA, as amended from time to time, have been a subject of controversy in this Court for some time and different Honourable Benches of varying strength deciding different cases have differed with each other in the past and have understood and interpreted the same term differently. It is in this backdrop that the present Larger Bench has been constituted so as to put an end to that controversy. It further clarified that ‘any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta.”
According to the Judgment ‘The definition of terrorism contained in section 6 of the Anti-Terrorism Act, 1997 as it stands at present is too wide and the same includes so many actions, designs, and purposes which have no nexus with the generally recognized concept of what terrorism is. Apart from that including some other heinous offences in the Preamble and the third schedule to that Act for trial of such offences by an Anti-Terrorism Court when such other offences do not qualify to be included in the definition of terrorism puts an extra and unnecessary burden on such courts and causes delay in trial of actual cases of terrorism. [4]
In addition, Sec. 19(7) of the ATA 1997 imposes a seven-day time limit for the conclusion of an ATC trial, which is to be heard on a ‘day-to-day’ basis. If Sec. 19(7) is not adhered to, the matter is brought before the Chief Justice of the relevant High Court for appropriate directions. Sec. 19(8a) further states that such non-compliance may render the presiding officer of the Court liable to disciplinary action by the concerned High Court.[5] Such an emphasis on speedy trials is likely to result in causing ATC Judges to pronounce judgments without affording adequate time for the defence to plead its case. This could then possibly result in a derogation from the right to fair trial granted in the Constitution.
Another concern in ATA regarding the right to a fair trial is that Sec. 21H of the Act allows for the conditional admissibility of a confession before a police officer. This is a deviation from the general procedure as found in Sec. 164 of the Cr.P.C 1898, which requires that any such confession be made before a Magistrate. This provision deviates from the right to a fair trial since confessions made before police officers have a likelihood of being extracted through torture. However, case law suggests that without corroborating evidence, the ATC does not usually accept such a confession on its own.[6]
Regarding the presence of the accused at the trial, Sec. 19(10) of the Act an accused person may only be tried in his absence if the Court is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice. Furthermore, the Act requires that prior to proceeding ex-parte, a proclamation must be published in newspapers requiring him to appear at a specified place, and that the Court must appoint an advocate to defend the absent accused.[7]
- General Clauses Act 1897
In addition to Article 13 of the Constitution which provides for the safeguard against double punishment as well as self-incrimination, Sec. 26 of the General Clauses Act 1897 also extends a similar protection[8]. It states that if an act or omission that is punishable under two or more enactments, the offender would only be liable to be punished under either one of them and not both.
- Pakistan Bar Council Free Legal Aid Rules 1999
Another aspect of the right to a fair trial is the right to a legal counsel, and in case the accused cannot afford a private lawyer, the right to be defended by an Advocate provided by the State. In this regard, the Pakistan Bar Council Free Legal Aid Rules 1999, which were framed under the Legal Practitioners & Bar Councils Act 1973, provide for “free legal aid to indigent litigants”. Pursuant to these rules, free legal aid committees were constituted at the federal, provincial and district level. According to these rules, any person desirous of free legal aid must submit an application to the appropriate Committee, which is then examined and processed. The funds are then generated through allocation by the “Pakistan Bar Council, the grants sanctioned by any Government, Local or other body or authority and voluntary contributions made by the Bar Councils, Bar Associations, Advocates, any other Institution, Foundation, Trust, Organization or an individual.” A list of legal practitioners are then appointed and paid the appropriate fee with a fixed ceiling for their professional services.[9]
[1] Sec. 21-D (2) Anti-Terrorism Act 1997
[2] Sec. 21-D (4) Anti-Terrorism Act 1997
[3] https://www.dawn.com/news/1513839
[4] Ghulam Hussain V The State, Cr Appeal No 95 of 2019
[5] Sec. 19-(8A) Anti-Terrorism Act 1997
[6] Research Society of International Law, ‘Human Rights and Pakistan’s Counter-Terrorism Legislative Landscape’ (2017) (pg. 73-74)
[7] Sec. 19(10) Anti-Terrorism Act 1997
[8] General Clauses Act 1897 (Act No. X of 1897)
[9] ‘Legal Aid in Pakistan’ (Dailytimes.com.pk) available at https://dailytimes.com.pk/388951/legal-aid-in-pakistan/