The Right to Fair Trial: Better Late than Never

This comment focuses on the right to fair trial in Pakistan. It shows that despite being a signatory to the United Nations Declaration of Human Rights, Pakistan's legislature only recently included this right in the constitution via the 18th Amendment. It is argued that despite the incorporation of the right to a fair trial in the constitution of Pakistan, its realization does not meet the standard originally envisioned under the Declaration. The comment expands on this point in the context of violations occurring in regard to the actual practice of arrest and detention. It establishes the violation of the right to fair trial and related fundamental rights in the context of caution warnings, custodial torture, confessions, identification parades and non-disclosure of accusations and material evidence to the accused. The article further argues that the right to fair trial is not a single dimensional right. In order for its full realization, interests of the accused, victim and society at large need to be balanced, without prejudice to one another.

Introduction

In the year 1948, forty-eight members of the United Nations (the ‘UN’) adopted ‘The Universal Declaration of Human Rights’ (the ‘UDHR’). Pakistan was one of them. The President of the UN General Assembly welcomed the adoption of the UDHR in the following terms:
…very important Declaration by a big majority without any direct opposition was a remarkable achievement…the Declaration only marked a first step since it was not a convention by which States would be bound to carry out and give effect to the fundamental  human rights; nor would it provide for enforcement; yet it was a step forward in a great evolutionary process. It was the first occasion on which the organized community of nations had made a declaration of human rights and fundamental freedoms. That document was backed by the authority of the body of opinion of the United Nations as a whole and millions of people, men, women and children all over the world, would turn to it for help, guidance and inspiration.

The Constitution of Pakistan, 1973 (the ‘Constitution’) reveals that, in principle, some of the articles of the UDHR were incorporated into it. Strikingly, 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, twenty-five years earlier, in 1948. The ‘right to fair trial’ in Article 10 of the UDHR reads

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.
In 2010, Article 10-A was inserted in the Constitution by the 18th Amendment and reads as follows:

 Right to fair trial: 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.
Thus, the right to fair trial is now a fundamental, constitutional right belonging to every citizen of Pakistan; it extends not only to criminal charges but also to civil rights and obligations. Although the Constitution itself does not define the right, reference to international human rights covenants, such as the European Convention on Human Rights (the ‘ECHR’), may be a helpful starting point in trying to outline the essentials of what constitutes a ‘fair trial’. Article 6 of the ECHR includes the following elements as a basic minimum standard required in a ‘fair trial’: a fair and public hearing, both in civil and criminal cases, by an independent and impartial tribunal, within a reasonable time; announcement of the judgement in open court, though for a number of reasons restrictions may be placed on the press and public from attending all or part of a trial; presumption of innocence of the accused in a criminal offence until he is shown to be guilty beyond reasonable doubt; availability of safeguards to a person charged with a criminal offence, including the right to be informed of the charge against him, to have adequate time and facilities to prepare his defence, to be defended through counsel or in person, to avail legal aid if required, to produce witnesses or have witnesses summoned and examined and to have an interpreter in case of a language problem.
In addition to international human rights frameworks, there is a gradually developing jurisprudence in Pakistan on the meaning of a ‘fair trial’ which points to a wide interpretation of Article 10-A of the Constitution. For instance, a seven-member bench of the Supreme Court recently interpreted the new fundamental right in the context of contempt of court proceedings against former Prime Minister, Yousaf Raza Gillani. ² 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’. The Court added that through Article 10-A, the right had been ‘raised to a higher pedestal; consequently a law, or custom or usage having the force of law, which is inconsistent with the right to a 'fair trial' would be void by virtue of Article 8 of the Constitution’. The Court opined that the legislature left the term ‘fair trial’ undefined, perhaps intentionally, so as to assign it a universally accepted meaning, which included the ‘right to a proper hearing by an unbiased competent forum’, emanating from the maxim ‘no man can be a judge of his own cause’.³ Elaborating on the principle that ‘justice should not only be done but be seen to be done’, the Court held that a judge may not adjudicate upon any case in which he has a personal interest, regardless of whether his decision is likely to be influenced by it. In another case, the Supreme Court, in the context of declaring the presumption of innocence to be the ‘cornerstone of the administration of justice’, pointed to the firm acknowledgment by the courts that the principles of fairness, fair play, justice and equity were embedded in the Constitution well before the right to fair trial was incorporated into the Constitution.⁴
Indeed, Article 10-A is intrinsically linked to and dependant on other fundamental rights guaranteed by the Constitution. Generally, the Constitution gives every citizen the right to be dealt with in accordance with the law, provides for their equality before law and equal protection, gives protection against illegal actions which are detrimental to their life, liberty, body, reputation or property, allows them to do all that is lawful and protects them from being compelled to do anything which the law does not require them to do. More specifically, in the context of a ‘fair trial’, the Constitution makes provision for protection against illegal deprivation of life and liberty, including safeguards as to arrest and detention which require that an arrested and detained person be informed of the reason for his arrest, have the right to consult and be defended by a counsel of his choice and have the right to be produced before a magistrate within twenty-four hours of his arrest (except in the case of ‘preventive detention’).⁵ Moreover, the Constitution provides safeguards against retrospective punishment, double punishment and self-incrimination and upholds the privacy of a person’s home, his dignity and protection against torture intended for extracting evidence. However, the actual practice of arrest and detention reveals a litany of violations of the right to fair trial and related fundamental rights. Some common violations are discussed below.

Caution Warnings

When a person or a suspect is picked up by the police, on most occasions, his arrest is not promptly recorded in the relevant register, in order to circumvent the constitutional requirement of producing an arrested person before a magistrate within twenty-four hours. Resultantly, accused persons languish in police lock-ups or in private ‘deras’ or holding cells, until a writ for habeas corpus is issued or an arrest is finally and formally recorded. There is no concept of informing a person so detained and arrested of the reason of his arrest, access to counsel is seldom provided or facilitated and a ‘Miranda warning’ is seldom given. The ‘Miranda’ or Caution warnings are a constitutional or statutory safeguard against self-incrimination provided to a person who is going to be arrested and placed in custody by the police. Caution warnings are mandatory in most countries, though the wording may, and indeed does, differ. Any statement made by the suspect without being informed of his rights is inadmissible in evidence in most jurisdictions. But despite the existence of similar safeguards as to arrest and detention in the Pakistani Constitution in the form of a definite, enforceable, fundamental right which acknowledges the right of an accused to legal advice, as well as the right to be informed of the reason of his arrest, the common practice is to subject the accused to torture until he confesses to the crime, regardless of whether he committed it.

Custodial Torture

The law additionally vests the magistrate with an enormous amount of power which can be exercised to contain, if not downright prevent, incidences of custodial torture. The problem begins when the magistrates, blindly and without application of a judicial mind, give a person into police custody on physical remand. The problem gets worse when this is done without ensuring that the accused is produced in court. And it hits rock bottom when the physical remand is blindly and mechanically extended, even when allegations of torture, including physical torture, exist.
The Rules and Orders of the Lahore High Court specifically direct the magistrate to satisfy himself as to the necessity of remand: whether the accusation against the suspect is well-founded, and whether there are good and sufficient reasons for remanding the accused to police custody instead of his own. The magistrate must examine the case-diaries and previous orders, if any, and most important of all, ensure that the accused is always produced before him. The accused is also to be given an opportunity to raise an objection. However, it frequently transpires that remands are not given in courts and thus the accused cannot have access either to a lawyer or a friend to resist remand on his behalf. Such a practice severely violates the right to fair trial, in addition to other fundamental rights. Not only does it need to be condemned, but those who indulge in it need to be disciplined in accordance with the law.

Confessions

Even though confessions made by an accused in the custody of police are not admissible, the same are used as a basis of determination of his innocence or guilt under the garb of the ‘opinion’ of poorly trained and inadequately educated investigation officers who procure ‘evidence’ to implicate the suspect by his own ‘voluntary confession’ – a severe violation of the constitutional protection of the right against self-incrimination. The Supreme Court has repeatedly held that it is not the job of an investigation officer to give his ‘opinion’ in this regard as it is the sole prerogative of the courts:
Before we part with this judgment, we would like to make a mention of some illegalities which we have noticed not only in the present trial but which now appear to have become a norm at almost every trial and which were not being noticed even by the High Courts...We feel that the time is now perhaps ripe when we need to remind ourselves of the legal role of the police in the matter of investigations and the law regulating the admissibility and relevancy of evidence which could be recorded at a trial in the said context... It will thus be noticed, as mentioned above, that the job of a police-officer conducting an investigation was confined only to collection of evidence which evidence, when collected, had to be placed by him before the competent court and it was then the authority and the obligation of this court and only of this court to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly. Conceding formation of such an opinion to a police-officer would be a grave illegality which could lead to grave injustice and serious resulting consequences.⁶
Any confession obtained by the police during investigation, whilst an accused is in custody, is inadmissible in a court of law. The only confession which can be used against an accused is one which he voluntarily makes before a magistrate, after being informed of his rights. The Constitution grants an accused the right to be defended by a legal counsel of his own choice, before a court of law, in addition to the fundamental right of consulting one whilst in police custody and any refusal of the police in not allowing the accused to meet his counsel or relatives is unjustified and in violation of his rights. Unfortunately, the practice in vogue for the common man is totally against the law and precedents established by the superior courts. It is, however, drastically different for men with clout and money who are allowed all sorts of amenities and facilities including, but not limited to, the use of their homes.⁷ 
A perusal of the laws governing the police shows that, among others, the primary duty of ‘every police officer’ is to ‘protect life, property and liberty of citizens’ to ‘ensure that the rights and privileges, under the law, of a person taken in custody, are protected’ and to ‘lay information before a competent court and to apply for summons, warrant, search warrant or such other legal process as may, by law, be issued against any person suspected of committing an offence’.⁸ These are all essential components of due process. However, last year, amid grave concerns, the government passed a law which empowers the State to put wiretaps, intercept private communications and make emails, SMS and audio-visual recordings admissible evidence⁹ – steps which have the potential of breaching a person’s right to fair trial and due process.

Identification Parades

Sometimes an ‘identification parade’ has to be conducted to identify a suspect. The legal procedure for these ‘identification parades’ is to get permission from the district and sessions judge who deputes a magistrate to go into jails and conduct the same in accordance with the applicable procedure. The procedure requires that witnesses do not see the suspects prior to the identification process; and that there is no delay between the occurrence of the crime and the time when the parade is held in order to ensure that the memory recall of the witness is reliable. A certain number of ‘dummies’ have to be mixed up with the suspect in the line-up who are similar in height, physique, features, complexion, appearance and dress. In practice, the police, after procuring or apprehending the suspects, invite the witnesses to the police station, prior to the identification parade, to acquaint themselves with the suspects and, in most cases, take their photographs. This is definitely a negation of the concept of a fair trial.

Non-Disclosure of Accusations & Material Evidence

Closely related to all the foregoing violations of the right to fair trial is the non-disclosure of accusations and material evidence to the accused, severely impeding his defence. As early as the 1960’s, our courts clearly recognized and held that an accused has to be apprised of the accusations against him as an elementary and essential principle of fairness, so that he may have a fair opportunity to rebut and refute any statement against him and to defend his own case.¹⁰ The same principle has been reiterated time and again, and most recently reinforced in ‘Liaquat Ali Chughtai’.¹¹ Thus, an essential component of the right to fair trial is the right to disclosure; the non-disclosing of relevant, evidential material, prejudices a party, rendering it unable to prepare a defence or to ‘controvert, correct or comment on other evidence, or information that may be relevant to the decision and influential material on which the decision maker intends to rely’.¹² Such a practice is unfair ‘irrespective of whether the material in question arose before, during or after the hearing’.¹³

Right to Fair Trial & ‘Triangulation’ of Interests

In civil cases the right to fair trial extends to both parties. However, in criminal cases it leans towards the accused. One could argue, should a victim of an offence not have the same right as the accused to be accorded a ‘fair trial’? Already, in our criminal justice system, a complainant or a victim is at the mercy of mostly ill-prepared and disinterested public prosecutors, and inefficient and poor police investigation. The conviction rate stands as a testament to this fact.¹⁴ A private counsel engaged by the complainant cannot plead his case without the permission and supervision of the public prosecutor; nor is he allowed direct involvement in relation to collection of evidence by the police. Put simply, if a complainant or a victim cannot get justice because her case was not investigated fairly, nor was any evidence which would tie the accused to the crime collected, nor was the prosecutor bothered enough to ‘prosecute’; or if the quality of a vulnerable victim’s testimony was weakened because of harassment or exposure to her perpetrator; or if her witnesses resiled because of the lack of witness protection law; could that still be called a ‘fair trial’?
Similarly, if an accused is not given access to counsel and is ignorant of his legal options, if the searches and recoveries made and the evidence collected is illegal and fabricated, if courts give undue weight to an investigation officer’s ‘opinion’ at remand, bail hearings and trial, if witnesses are bought and do not uphold the sanctity of an oath, if there is no concept of punishment for perjury, if there is no restriction on media-trials, if there is a reverse presumption of ‘guilty until proven innocent’, if there is a violation of disclosure rules, if physical remands are given automatically, if identification parades are pre-staged at police lock-ups, if prisoners are left languishing in ‘bakhshi khanas’ (sub-jails in the court premises) instead of being produced in court when brought from jail for trial, if due process is applicable only selectively, there can be no ‘fair trial’ in spite of it being a constitutional right.
Thus, it is self-evident that the right to fair trial can only be fully realized through, and is intrinsically dependent on, the effective implementation of other corresponding rights of both the parties. While Pakistani constitutional jurisprudence has been slow to appreciate this, the Indian Supreme Court is evidently a step ahead in recognizing that the right to fair trial is not a single dimensional right: it has to balance the interests of the accused, the victim and the society at large. In Zahira Habibullah Sheikh (5), the Indian Supreme Court held that a fair trial was a cardinal principle of the protection of human rights and pivotal to administration of justice, and thus had to be understood as based on a ‘triangulation of interests’:
This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being pub­lic wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of inter­ests of the accused, the victim and the so­ciety and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated com­pletely with disdain and as persona non grata. The courts have always been con­sidered to have an overriding duty to main­tain public confidence in the administra­tion of justice-often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous pro­cess, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording ma­chine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fair­ness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive con­duct that has occurred in relation to pro­ceedings, even if a fair trial is still pos­sible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.¹⁵

Conclusion

               The UN General Assembly adopted the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ in 1985, which stresses the ‘necessity of adopting national and international measures in order to secure the universal and effective recognition of, and respect for, the rights of victims of crime and of abuse of power’, without prejudice to the rights of the accused.¹⁶ Pakistan has been slow to legislate in this respect. Our courts have long held that the concept of criminal administration of justice is based on the assumption that a criminal act is injurious not just to an individual but to the society as a whole. If this is indeed the case, maybe it is time to hold that the right to fair trial can only fully be realized by balancing the rights of the victim and the accused with the rights of the society, without prejudice to one another.