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  • Saturday, 14 September 2024
Enactment of Right of Fair Trial in Pakistan

Enactment of Right of Fair Trial in Pakistan

The right of fair trial is a basic fundamental and constitutional right which is provided to every citizen of Pakistan by the Constitution of Islamic Republic of Pakistan 1973. This fundamental right is substituted by an amendment in the constitution in the year 2010, before this amendment there is no concept of providing any right for fair trial to a prisoner or alleged person. Although the concept and origin of this right is too ancient but body of this right is recently developed and expressed by Universal Declaration of Human Right, a declaration of basic human rights which were signed by several nations in 1948. The Article 10 of Universal Declaration of Human Rights provides that:Every person is entitled to fair and equal public hearing by an independent and impartial tribunals in the determination of his rights in any charge against him.After declaration of right of fair trial as a basic human right. It is briefly described in an Article 14 of ICCPR, International Covenant on Civil and Political Rights provides that:All persons are equal before the courts and everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunals established by a competent court of law.Pakistani Parliament rectified and adopted ICCPR in 2008 and added article 10-A to its constitution in 2010 through 18th amendment. Article 10-A of Pakistan’s Constitution provides that:Every person is entitled to fair trial and due process for the determination of his rights in any case.The authentic definition of the right of fair trial is defined by Sir Oliver Stone as:A fair trial means you have the right to a hearing which is fear, public, head by an independent and impartial court, heard within a reasonable time and you also have the right to present your case before the decision is made, see your opponent’s documents and evidence, be given reason for the decision.A fair trial requires fairness of proceeding at a pre-trial and a trial stage. The pre trial rights include the right to legal counsel, the right to prompt appearance before a judge to challenge the lawfulness of arrest and detention, and the right to humane condition during the pre trial detention. The rights that are providing during trial includes equal access to and equality before the courts, the right to a fair hearing, the right to a competent and impartial tribunal, the right to adequate time and facilities for the preparation of a defense, the right to a trial without undue delay, and the right to defend oneself through legal counsel. Pakistani government is still unable to provide right of fair trial to the people. Since this right was included in Constitution as a basic fundamental right but the state and government institutions are unable to imposed this article and provide this right to a people. The reports of Human Rights Commission and Amensty International are also unsatisfactory over the concept of this Fair trial’s right. The basic reason behind their unsatisfactory reports are that this right is not provided to a people properly, Tribunals and courts are not independent, judiciary is biased and institutions are not working properly in accordance with a law. The case of Junaid Hafeez and several other cases are the best and competent example of the violation of this fundamental right. He has been sentenced to death by District and Sessions Court. He was held in solitary confinement for 6 years his trial was delayed unreasonably, his lawyer Rashid Rehman was killed and seven judges were transferred during the trial due to the environment of fear. However, it is a basic rule of law which states that “No one shall be punished without being heard” but in several cases it is observed that a person is considered to be guilty only on allegation made to him by someone unknown. Human rights experts are also unsatisfied by a judgment made by lower courts regarding any case in which Supreme Court of Pakistan had already provided a guideline to not provided punishment in some controversial cases where alleged person is until unheardThe right to fair trial is linked with several other fundamental rights and depend upon those rights, These rights include right to safeguard against detention and arrest. However the actual practice of arrest and detention reveals a litany of violation of the right of fair trial. There are several violations of right of fair trial which are demonstrated during the arrest of a person 1. The first violation is the arrest or detention of a person without informing him. Constitution provides every person has a right to know the reason of his arrest and in case a person is arrested he must be produce before Magistrate within 24 hours. But an arrested person shall be kept in prison and torture until he confess his crime. This is against the Constitution that the fundamental right of an accused to legal advice as well as the right to be informed of the reason of his arrest.2. Custodial Torture is another violation of the right of fair. The situation gets worst when the physical remand is blindly and mechanically extended, even when allegation of torture, physical torture exist. The rules and orders of Lahore High Court specifically directs the Magistrate to satisfy himself regarding necessity of demand and most important of that the accused is produced before the court. However it transpires that the remands are not given in a court and thus the accused cannot have accessed to a lawyer to resist the remand. Such a practice violates the right of a fair trial.3. Identification parades has to be conducted so witnesses can identify the accused but the rule for such parades is that it is carried before a judge in a court of law. However, in several cases it is observed that such a parade was carried out in Police Station and secondly the Police used photographs instead of a presenting a real persons. Moreover, in this situation time is an essential element. It is required that the parade is carried out in a reasonable time so that witnesses can easily identify an accused.4. Any confession which is made by an accused in a Police custody is unacceptable in a court of law. The only confession which can be used against an accused is once which he had made before a magistrate. For this constitution grant a right to a accused to be defended by a counsel of his choice but in Police Custody the accused was not allowed to meet his counsel. It is the responsibility of a state to protect the fundamental rights of a person and provide the right to defended by counsel of his own choice. If this right is not provided to an accused person his fundamental right of free trial is considered to be violated as the right of defended by counsel is associated with the right of fair trialThe basic reason behind the unavailability of right of fair trial in Pakistan is the loop holes in the several laws that damaged the right of fair trial of a person. There are several procedures of law which affect this right. These procedures are applied to proceed the trial The procedures of law includes the Custodial torture, Confession made under Police torture by suspect, Identification parade, non disclosure of accusations and material evidence. In the end, it is concluded that the right of fair trial is not exercised properly in Pakistan. Though it is adopted by Pakistani Parliament as a basic fundamental right provided to every citizen by the state but it is not enforced properly. The right of fair trial is said to be provided to every citizen when every citizen shall have the right to justify himself before the court and court is empowered to heard his case without any influence. Moreover, a trial which can be deemed to have been fair should respect the right of both the parties during the hearing of the case, post case hearing where both parties have the right to appeal after the sentencing by a competent court of law.There are some recommendations are noted below which shall be applied over the pointed loop holes for the best application of right of fair trial in Pakistan.1. Pakistani Parliament should amend article 184(3) of Constitution of Pakistan and introduce the right of appeal under this article. If the right of appeal shall not be given to the people than the fair application of this right of fair trial is impossible.2. Laws should be amended in order to provide counsel to an accused and alleged person by a state in all circumstances for his defense and to justify himself in a court.3. Laws should be made to established an institution who look after the performance of courts to protect the fundamental rights and if courts are unable to protect basic rights than this institution has authority to protect fundamental rights of a people.

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