Right to Fair Trial

The Right to Fair trial is the cornerstone of any democratic society and constitutes various other rights relating to the treatment of individuals within the Criminal Justice System. It is important that in order for the full realization of the right to fair trial, the interests of the accused, victim and society at large need to be balanced, without prejudice to one another. There are a number of rights that constitute the wider right to a fair trial. These include: 

• Principle of the presumption of innocence: This principle requires that an accused in a criminal case must be presumed to be innocent until the guilt of the accused is established beyond reasonable doubt.
• The right to be  informed of the nature of charge against the accused.
• Receiving adequate time and facilities to prepare a defence.
• Access to legal counsel.
• Representation by legal counsel.
• Receiving a fair and public hearing by an independent and impartial tribunal.
• Being tried without undue delay.
• Opportunity to examine prosecution witnesses.
• Receiving free assistance of an interpreter if the accused cannot understand or speak the language used in court.
•  Protection against self-incrimination as well as double-jeopardy.
•  Right of a convicted person to review of a sentence by a higher court.

The right to a fair trial has been outlined in different international human rights treaties, conventions, and declarations.

International Human Rights Safeguards and Standards

It is important that in order for the full realization of the right to fair trial, the interests of the accused, victim and society at large need to be balanced, without prejudice to one another.There are a number of rights that constitute the wider right to a fair trial. These include:

• Principles of the presumption of innocence which require that an accused in a criminal offence must be presumed to be innocent until he is shown to be guilty beyond reasonable doubt.
• Being informed of the nature of charge against the accused.
• Receiving adequate time and facilities to prepare his defence.
• Access to legal counsel.
• Representation by legal counsel.
• Receiving a fair and public hearing by an independent and impartial tribunal.
• Being tried without undue delay.
• Examination of witnesses against him.
• Receiving free assistance of an interpreter if he cannot understand or speak the language used in court.
• Protection against self-incrimination as well as double-jeopardy.
• Right of a convicted person to a review of a sentence by a higher court.

International Human Rights Safeguards and Standards

The Universal Declaration of Human Rights (UDHR), accepted as customary international law, outlines the right to a fair trial in Article 10 by stating 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.”

Furthermore, the right to fair trial has also been addressed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by Pakistan. While Article 14(1) establishes the basic right to a fair trial, Article 14(2) substantiates the presumption of innocence, and Article 14(3) makes a note of the minimum fair trial guarantees that must be extended to those accused of criminal charges. These include being informed of the nature of charge against the accused, getting adequate time and facilities to prepare a defence, being tried without undue delay, having witnesses against the accused examined, having free assistance of an interpreter if the accused cannot understand or speak the language used in court, and not being compelled to testify against oneself or confess guilt. Finally, Article 14(5) establishes the right of the convicted person of a review of a sentence by a higher court, and Article 14(7) prohibits double jeopardy. However, this principle has its qualifications as summarized by the United Nations Human Rights Committee (UNHRC), which states that it does not apply to appeals or any retrials that may be ordered by a Court of Law or the reversal of guilt or innocence through the presentation of new evidence at a later stage.

In its General Comment No. 32, the UNHRC has expounded upon the rights associated with a fair trial. It states that the right to a fair trial must be afforded to persons of all nationalities, irrespective of whether they are outside the country of their nationality, or are stateless. Furthermore, the Committee stated that a person must not be barred from the right to fair trial due to “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 14 of the ICCPR applies unequivocally to Courts and Tribunals of any nature, be it specialized, civilian or military. In addition to this, Article 6 of the European Convention of Human Rights also outlines the right to a fair trial in a similar language as that of the ICCPR. 

This right to a fair trial has also been outlined specifically in relation to children in Article 40(2) of the Convention on the Rights of the Child, also ratified by Pakistan. The Committee on the Rights of the Child, in its General Comment No. 10 on the Convention, has further explained that the atmosphere of the trial must be tailored in such a way that the child is able to express himself freely, and that the child’s age be taken into account to modify courtroom procedures and practices. It states that the child must be given the opportunity to express his/her views freely, and those views should be given due weight in accordance with the age and maturity of the child. It places the responsibility of ensuring that the child understands the charges brought against him/her on the authorities, including the police, prosecutors and judges. 

Other than this, the gravity of offence must be taken into account, particularly in cases involving death penalty. The Comment further recognizes that in addition to a lawyer, social workers may also be appointed, provided they are trained to work with children and possess an understanding of the law. Moreover, when questioning the child, some appropriate legal or other representative, as well as parents, if requested, must be present. 

International human rights safeguards regarding the right to fair trial also expound upon the right to complain against ill treatment. The report of the UN Committee against Torture highlights that States must inform the accused of their right to complain to or against the authorities. Moreover, the victim also has the right to complain to courts and non-governmental organizations, and to select a counsel and a doctor of their choice. 

It is also important to note that reparation and redress through compensation is an obligation under Article 14(6) of the ICCPR, as well as Article 14 of the Convention Against Torture, for miscarriages of justice that result in wrongful convictions, and for instances of torture. However, they do not provide for compensation if the verdict is overturned on appeal.

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.

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 12: Protection against Retrospective Punishment 

▪         Article 13: Double punishment and self-incrimination

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, as codified in Article 117 of QSO, and for the burden of proof to be placed on the prosecution. Considering the right to have witnesses against the accused examined, Article 133 provides that cross-examination can take place after  examination-in-chief, while Article 137 allows leading questions to be asked during cross-examination. 

As per Section 540 Cr.P.C. 1898, the Court, at any stage of the proceedings, on its own or on request of a party could recall a witness for re-examination. However, such re-examination will be allowed only if it is in the interest of justice; to get an explanation or to remove any ambiguity with respect to a fact, raised during cross-examination, thus preventing any prejudice to other party.

Section 353 of Cr.P.C. 1898 states that the recording of the evidence, and the examination in chief is to be carried out in the presence of the accused, otherwise the parties risk vitiating the trial. 

However, the Anti-Terrorism Act, 1997, under Section 19(10) allows the Anti-Terrorism Courts (ATCs) to conduct trials in the absence of the accused: Any accused person may be tried in his absence if the Anti-Terrorism court is satisfied that such absence is deliberate and brought about with the view to obstructing the course of justice.

Additionally, Section 56 of Cr.P.C provides that if the person is being arrested without warrant, an order in writing, specifying the person to be arrested and the offence for which the arrest is to be made, shall be delivered to the officer. The officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order. Furthermore, Sec. 361 of the Cr.P.C 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.

Double Jeopardy and Sel-Incrimination

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.

The protection against double jeopardy has also been provided under Article 13 of the constitution; whereas, Article 13(b) incorporates the principle of protection against compulsion of self-incrimination, which is one of the underlying principles of criminal proceedings. 

Confession before Police (Article 38 and 39 QSO, 1984)

These Articles establish that a confession made to the police is not considered an admissible piece of evidence. Article 38 provides that no confession made to a Police officer can be held against an accused, while Article 39, proclaims that no confession given by the accused in police custody is to be used against him in the court of law, unless it is made in the presence of a Magistrate exercising powers under the Cr.P.C. 1898. 

These provisions were enacted to ensure the right to a fair trial, since they reduce the possibility of convictions upon confessions extracted through torture. Yet, 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.”

However, there is an important exception to this general rule under Section 21-H of the Anti-Terrorism Act 1997. This section asserts that in case of a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation, without being forced, before a police officer not below the rank of a District Superintendent of Police, may be admissible in evidence against him. Yet, there may be 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, this is only applicable to terrorism cases, and is rarely applied in practice as per recent judgments, and such confessions are now only admissible if there is other evidence to substantiate the guilt of the accused.  

Regarding Judicial Confessions, Section 164 of Cr.P.C. states that if a judicial confession is honest and made voluntarily, it can provide the sole basis for a conviction.

Investigation for Fair Trial Act, 2013

The Investigation for Fair Trial Act (IFTA), 2013 is the first legislative attempt to regulate the use of evidence obtained from contemporary investigative techniques in criminal trials in Pakistan. The Act empowers intelligence and law enforcement agencies to conduct surveillance and the interception of electronic and cellular phone communication for the purposes of any investigation into an offense, and provides that it is admissible when obtained following the necessary Court warrant. IFTA aimed to counter the issue that existing laws did not regulate advanced investigative techniques, such as surveillance of telecommunication devices of person(s), of property itself, and interference in electronic modes of communication like e-mail. 

However, in practice, the IFTA appears to have been interpreted, or applied, in a restrictive manner in its approach towards the use of such evidence in judicial proceedings, which has in turn prevented the ability of investigators to derive, and prosecutors to present evidence from the contemporary devices or techniques. 

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 states that all offences carrying the death penalty or imprisonment of longer than three years, under the Act, will be non-bailable. This means it is the discretion of 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 highlights the considerations that the Court must take into account 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. However, the ATA has often been misused in practice, when ATA clauses are incorporated into the FIR with malafide intent,  which results in greatly diminishing the chance of the accused receiving bail, hence impacting his right to a fair trial.

Under Section 21-L of ATA, an accused can be convicted if he avoids arrest or evades appearance before any “inquiry, investigation or court proceedings or conceals himself, and obstructs the course of justice,” but before being punished, the Court must satisfy itself under Section 19(10) ATA, that such absence was deliberate.

If proper procedure under Section 19(10) is not followed, holding trials in the absence of the accused may violate Articles 9 (right to liberty), 10(1) (right to consult a counsel) and 10A (right to a fair trial) of the Constitution of Pakistan. 

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. 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.

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. 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; however, in case the accused cannot afford a private lawyer, the state is obliged to provide for an advocate in order to protect the accused’s right to fair trial. 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.”