RIGHT TO FAIR TRIAL
(A newly inserted Fundamental
Right under the
Constitution of Pakistan, 1973)
By
M. ZEESHAN ABDULLAH
Advocate
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.
In
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
·
·
Mst. Banazir Bhutto V. Federation of
·
Ghulam
Mustafa Khar V. Federation of
·
Benazir Bhutto V. Federation of
·
Khan Asfand Yar Wali V. Federation of
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
Messer Elahi Cotton Mills Ltd. V. Federation
of
Rauf Bakhsh Kadri V. The State 2003 MLD 777.
Begum Agha Abdul Karim
Shorish Kashmiri V. Govt. of
Abdul Rahim V. UBL PLD 1997 Kar. 62
Muhammad
Umar Rathore V. Federation
of
*
(The author of the article is a Karachi based practicing Advocate of High
Court, dealing with Banking, Corporate, Civil, Constitutional, Criminal
(Corporate Crimes) Cases and Partner of Law Firm ("ANSARI A.G.
LEGAL").
E-mail Address:--
m_zeeshan53@yahoo.com
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