Fair Trial Prospects and Implementation

FAIR TRIAL--PROSPECTS AND IMPLEMENTATION FAIR TRIAL--PROSPECTS AND IMPLEMENTATION By Syed Ali Zafar, Barrister-at-Law, Advocate, Supreme Court, Lahore* It is as usual a pleasure to be addressing this most august gathering of Pakistan's legal luminaries. The right to have a dispute resolved or guilt determined through a "FAIR TRIAL" is indeed the mother of all fundamental rights and the central point of any legal system in a democratic set up. The key legal texts on fundamental rights of fair trial can be found in Article 14 of the International Covenant on Civil and Political Rights, Article 6 of European Convention on Human Rights as well as other Charters like Article 7 of the African Charter on Human and Peoples' Rights and Article 8 of the American Convention on Human Rights. Some of the ingredients of this right:-- . Right to be presumed innocent until proved guilty . Right to be heard by a competent, independent and impartial tribunal . Right to counsel . Right to privacy with counsel . Right to have adequate time and comments for preparation of defence. . Right to produce evidence and cross-examine witnesses . The right to present arguments . The right to have the trial completed within a reasonable time . The right to appeal at first instance to higher courts . Obligation of the Bar and the Bench to maintain a decorum and respect for each other and not to use intimidatory tactics against each other. This includes the duty not to raise tone of voices against each other while questioning or arguing. Till the 18th Amendment on 19-4:2010 the right of FAIR TRIAL was not specifically mentioned as a FUNDAMENTAL RIGHT in the Constitution of 1973 or the Constitutions before it. However the framers of the 1973 Constitution in the shape of article 4 gave us the concept that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan" and that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 9 too provided that "No person shall be deprived of life or liberty save in accordance with law." At that time the concept of "DUE PROCESS" was very well established in the US Constitution as interpreted and applied by the US Supreme Court. It goes to the great credit of our judiciary and legal fraternity of that time that they carried out a pragmatic, innovative and purposive interpretation of Articles 4 and 9 and equated it with the concept of FAIR TRIAL. In Al-Jehad Trust v. Federation of Pakistan ' PLD 1996 SC 324 the court affirmed that "right to have a fair and proper trial and a right to have an impartial court or tribunal" is "a well recognized inviolable right enshrined in Article 9 of the Constitution." Similarly in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 the court decided that Article 4 of the Constitution provided guarantees "as comprehensive as the American due process clause." This was also re-affirmed in Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 and has been reiterated in various judgments. This golden era when our Constitution was being developed through judicial innovation is a prime example of "JUST AND APPROPRIATE JUDICIAL ACTIVISM", the noble purpose of which was to lay down principles for protecting the basic human rights of Pakistani citizens and ensuring that the rule of law is established. There is no doubt that the courts are and should be the protectors of the rights of fair trial which is indeed the most essential role of the courts in any civilized society. Then came the 18th Amendment and the incorporation of Article 10A within the Constitution which provides that "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." To me Article 10A is a CODIFICATION OF THE JUDGE MADE LAW already laid down in the judgments I have mentioned above. Article 10A now clarifies beyond any doubt that all the principles necessary for a fair trial as laid down in the jurisprudence, conventions and judicial pronouncements worldwide are now an integral part of our law and that not just procedural due process but SUBSTANTIVE DUE PROCESS must also be ensured. Article 10A has strengthened and not created the concept of FUNDAMENTAL RIGHT OF FAIR TRIAL. Since then the Supreme Court of Pakistan while interpreting Article 10A has decided that "it is not for us (i.e. the Supreme Court) to judge the guilt or innocence of the parties concerned without evidence or trial. We, as judges, should be the last people to draw premature conclusions which are required to be proved through evidence we do not intend to hold a trial because that would be a matter which, if necessary, will be undertaken by a competent trial court in accordance with law Indeed, it is the cornerstone of the administration of justice in this country that all people, whether they appear to us innocent or guilty, are entitled to the due process of law and are to be deemed innocent until proven guilty after a fair trial. Article 10A of the Constitution has now codified this principle of due process in the form of a fundamental right." As lawyers, in the profession of prosecutor or defence counsel, it is our duty and obligation to ensure that this principle is applied universally and consistently and to stand up and speak out (may protest if necessary) whenever we see any encroachment is being made by any authority against it. There are various violations of the principle of fair trial worldwide and this is the reason for the various Conventions. In most cases it is the powerful government authority that are responsible, and it is the judiciary to whom the citizens turn for protection. If the judiciary is weak and cannot guarantee the rights of the citizens the rule of law is eroded and ultimately justice will become the victim. Such societies do not survive for long. If the judiciary is strong and independent then it will ensure that the basic concepts of due process in dealing with a dispute or proving the guilt or innocence of a person in a criminal case are fully protected. In such a case the rule of law will be supreme. There is no doubt that since the second restoration of Chief Justice the Supreme Court has strengthened the concept of "JUDICIAL REVIEW" and established in the minds of the public, the independence of the judiciary. In the process the court has been accused of JUDICIAL ACTIVISM. I am personally however not against this, provided it is re-strained within the confines of the Constitution, because I believe that such judicial activism is necessary to protect the rigors of arbitrary government actions and is sometimes essential. There are many cases where had the courts not taken a dynamic approach they would have been unable to uphold their rule as GUARDIANS OF DEMOCRACY or protect fundamental and human rights. I can quote innumerable examples from our courts' judgments. Recently Supreme Court of Pakistan has decided that Government cannot close schools which provide education to the marginalized in far flung area as that is a part of FUNDAMENTAL RIGHT TO EDUCATION. As a result millions of children are continuing to receive schooling. Supreme Court of Pakistan has recognized that an updated and transparent voters list is part of the RIGHT OF PEOPLE TO DEMOCRACY and monitored the electoral rolls which played its part in recent elections. The court should certainly exercise suo motu powers in matters such as for saving the environment or helping Brick Kiln workers in getting their freedom. Through innovation the Supreme Court has diluted and rightly so the hurdle in the way of approaching the court for justice by expanding the concept of "AGGRIEVED PERSON". SHEILA ZIA is by all means a historic case which gave meaning and substance to the fundamental right for LIFE equating it with RIGHT TO ENJOY AND LIVE WITH AMENITIES. But the confidence in the independence of the court has resulted in overconfidence in the courts at the expense of other institutions of the State thus flooding the court with sometime illegitimate and unfair prayers. Reverting to the substantive due process and the fundamental right to fair trial, this is the time that I as an officer of the court and a member of the profession of law owe it to the public, to my profession, and particularly to the court, to bring out, what I believe, needs to be corrected by no other institution except the court themselves as is rightly said in the case of judiciary "GUARDIANS HAVE TO GUARD THEMSELVES" My reservations are primarily concerned with the worldwide phenomena where under pressure from the media and the public courts are being accused of EXCESSES or, as Parliamentarians or Executive term "ADVENTURISM INTO THEIR AREA OF ACTIVITY. My reservations relate to the procedures adopted by the court in probing into a matter after a "SCAM OF MILLIONS OF RUPEES" is reported in the .media. When media publishes a news item involving allegations against many, the Supreme Court directly begins probing into the SCAM either on its own motion or on the application of an "AGGRIEVED PERSON", and in this process calls reports from the investigating agencies, comments from the accused and even starts examining all the relevant documents. It is in this process that the potential conflict-with principles of fair trial arises. Taking note of such social evils and trying to correct them because the media reports it, and there is a hype for it, amounts to pandering to public opinion whereas it is well said that "PUBLIC OPINION IS AN UNRULY HORSE AND SHOULD NOT BE RIDDEN BY THE JUDICIARY". United States Supreme Court in its recent judgment has so rightly pointed out that "social evils in the society must be corrected by the people and their representatives and not by the Court." What the court is trying to stress is that to try to correct the social evils is to run for hunting in the bewilderance of civil society where evils of different nature are located. How to correct the social evils, Abraham Lincoln has given the formula: "If people turn their backs towards the fire, they shall have to sit on the blisters." It is time now to let the people, their representatives and other institutions take this herculean task and judiciary should walkout of it. Now my friends imagine this if the apex court decides the case itself as a court of first instance and determines the civil liability or criminal culpability of a person, I ask you, "Would this be a fair trial"? There has been no evidence, no cross-examination, no appeal and no court independent of the prosecution because suo motu proceedings appear to be inquisitorial. Is this not against the principle of fair trial known to us? Imagine also my friends if at the end of the proceedings the Supreme Court comes to the conclusion that Article 10A requires a trial to be conducted by the trial court and not the Supreme Court. Is it not true that by this time the damage has been done? Can you imagine a trial court thereafter carrying out an impartial and independent trial? Would the trial court be able to come to a just conclusion or acquit an accused or decide the matter contrary to the observations of the Supreme Court knowing that the Supreme Court is scrutinizing the case? If Article 10A is to be implemented in its true letter and spirit and now that the independence of the judiciary has been demonstrated where the corrupt are afraid of being caught, we need to redefine with great clarity and thought the JURISDICTION OF THE SUPREME COURT UNDER ARTICLE 184(3) and limit it to the enforcement of fundamental rights. During the process of scrutinizing what is and what is not the truth, well known and well-entrenched doctrine of leaving the investigations to the investigating agencies established under the law has been turned on its head. What I find from experience and that which has been reported to me from respectful colleagues who have appeared in cases is that many times the initial reports submitted by the investigating officers have been rejected by the Supreme Court with PRIMA FACIE OBSERVATIONS made from the Bench. Such observations are perceived by the investigating officers to be the 'direction in which the investigation is to be concluded, which is to name the respondents in the suo motu case as accused. This itself, it is respectfully submitted, is against the principle of fair trial. It is true that finally the apex court directs the trial court and the investigating officer to proceed in accordance with the law but the damage has been done. The investigating officer does nothing except to file a case thereafter. Respectfully expressing reservations with this form of trial I consider it PRE-JUDGING and PREEMPTING what the trial court would ultimately do. Learned judges holding such high pedestal as being the constitutional and final court sometimes show their disgust (sometimes in angry tone) to the investigating officer, fair trial gets polluted in the beginning. The grossest violation of fair trial is if the trial of the person is conducted through media. "LOUD THINKING AND OBSERVATIONS" by judges are reported in the press in a manner that the public come to believe that the person is guilty. The same perception sinks into the minds of the prosecution and trial court. Often the merits of the case are discussed in talk shows and stories are written about it and even conclusions drawn. What fairness is left in the real trial before the trial court once such a media trial based on observations of the judges of the superior courts has already taken place? As noted by the Human Rights Committee in General Comment No.13 that "It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial." When the lawyer for the client appears to present the case of his client, number of questions fired at him by some judges sitting on the Bench and influenced by the reports adversely made the next day, fails to defend his client as best as he could. Thereafter he is no longer the wheel of the chariot which can carry the heavy burden of justice. We need to follow the "NOTE OF CAUTION" pronounced by Justice Jillani as in Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 when he said: -- "The Court has to guard against frivolous petition as it is a matter of common observation." The court quoted with approval the statement that "public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest and ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. Attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded' on personal vendetta." Can I end my submission with the hope that notwithstanding that some of the things I have said today may have been overstated, all will be taken in good faith and our judges, who are now public icons, would themselves bring the process within the framework of fair trial which I in detail submitted above. Our judges have created history by zeal to give people the confidence in the judiciary of Pakistan in a short period. Let them now create yet another golden history of restraining JUDICIAL ACTIVISM through JUDICIAL RESTRAINT and giving to all other- institutions of the State a message that each of them, including judiciary, have to work within the jurisdiction assigned to them by the Constitution. The judiciary should concentrate towards finding ways and means of improving justice at the lower level to achieve the goal of fair trial. It is only then that a Pakistan of vision of its founders will be created ushering in the sunshine of justice according to law. _______________________________________________________________ * Speech addressed in International Judicial Conference, 2013 held at Lahore.