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The Constitution of Pakistan’ 1973  Article 10a: Right to fair trial

The Constitution of Pakistan’ 1973 Article 10a: Right to fair trial

The Constitution of Pakistan’ 1973

Article 10a: Right to fair trial

The determination of civil rights and obligations or in any criminal charge against a person, he/she shall be entitled to a fair trial and due process. The word “fair trial” means impartial hearing of court in which evidence is taken. This was well defined in Black Law Dictionary.

[1]Right means the basic need after being a human being.

Thus, right to fair trial means whosoever captured by the officials of society should present that person in a court room within the reasonable time and manner and should provide him with a solicitor, (no matter what type of charges are raised against that accused). Justice was the supreme demand of every nation. If we look back towards history, then we might heard about the stories relating to maintain peace, justice, security and harmony in a society. Justinian law (an eye for an eye) was also a symbol of justice. As Quran 1400 years ago set the criteria for fair trial. Every accused was presented in front of a Muhammadan Magistrate, where charges upon the accused were put forward and the accused was given the space either to admit or reject the charges raised against them.

The need was felt when the evil (mischief) was crushing down the innocent ones. Those non guilty were proven guilty either by external pressure or by unfair trial. The statement of accused was not entertained in a court room, shouting’s, vowing of accused pulled down the lawyers to set an amendment in the constitution that could left no door closed. After a long hardship finally a conclusion was drawn to set a right of fair trial to every person whosoever is entitled as an accused. In this condition the accused shall have right of fair jury, (he/she may put forward its case in front of a judge in a court room to get justice according to the circumstances of respective case).

The right to fair trial not only deals with civil cases but also to criminal cases. When a person is in the custody of police (officers) no matter the case being reported, he/ she is entitled to enjoy and use equal rights. Rights of freedom are free from use of unlawfully seized evidence and unlawfully obtained confessions, speedy and public trial are also associated with the right of fair trial. In this regard everyone should be dealt with equality, unbiased and non-prejudice behavior.

When the world was modernizing an international law was formulated which was supposed to be followed by every nation everywhere. The cases like partition and independence of states, their supremacy was to ensure rule of law. Hence Universal Declaration of Human Rights (UDHR) came into being. Few laws to be followed at international level were confirmed by every nation that has become the part of this declaration.

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.[2] After few years need to study fair trial in detail was demanded. UDHR setup another committee known as International Covenant on Civil and Political Rights (ICCPR). The articles 14 sec. (1, 2, 3, 5, and 7) of ICCPR explain the matters dealing with right to fair trial.

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, 2, 3, 5, 7) establishes the basic fair trial right, provides the presumption of innocence, sets out a list of minimum fair trial rights in criminal proceedings, rights of a convicted person to have a higher Court review the conviction or sentence, prohibits double jeopardy. [3]

In the European convention on Human Rights (ECHR) ensures that whosoever captured by some authorized authority should be given a fair trial. The need was felt after the Terrorism Act 2005, in this circumstances whosoever was considered as an aspect of being a member of that act was arrested and severe procedures were adopted to gather information. Once family was either kept silent by coercion or was unknown about their person. Then House of Lords in 2009 acted under the article 6 of European convention on Human Rights (ECHR) which deals with the right of fair trial. Hence the formulation of this right proved beneficiary to innocent once. It could be clearly seen by help of few cases recorded and dealt under the provisions of this article.

In the case of Cadder versus HM Advocate[4], the right of fair trial of Mr.Cadder was abolished. After being arrested he was detained by the officers without providing him with a lawyer or not even let him called his lawyer. The action of officers taken was against the article 6 sec 1 and 3(c) of ECHR.

Law not only provides an accused with their righteous behavior but also favored to secure the rights of minor as well, which was proven through this case.[5] Mr. Paniot was a minor, non aware of his right, was interrogated, and cross examined by the police. When this case was reported ECHR took over this case and irrespective of the facts, concluded that whatever the case may be a minor cannot be brought in a court room unless provided with a lawyer or a guardian. As the circumstances of the case was against the article 6 sec 1 and 3 (c) of ECHR.

Even the accused under the police action was also entertained by “right to a fair trial.” [6]In the case of Mr. PISHCHALNIKOV was the suspect of being involved in some criminal charges. That was handed over to courts. The Supreme Court held that even the person arrested in criminal charges is also entitled to this right. However, whatever the circumstances of case would be, there is a violation of legal right of Mr. PISHCHALNIKOV thus court discharged the case by providing him with damages of EUR 5,500.

The laws under which this case was held were:

  • Alleged violation of articles: 5, 6 (1) (3c), 13, 35 (3) (4), non application of Article 41[7] on account of excessive proceedings, absence or deficiency of legal representation.

In United States of America (USA) supreme court has emphasizes a lot on securing the right of a fair trial of accused. It was included in the Judiciary Act of 1789 by the sixth amendment in the USA constitution. The need of justice was started when the crimes started to get the hold over the true values of individual’s right. US had also adopted the right of fair trial in its constitution which is being depicted and followed by the Supreme Court of US.

Sometimes the delay in case is also termed as the violation of legal right of accused. This could purely reflect the judicial freedom of USA. It was observed in a case of Strunk[8], in which the Supreme Court held that when the defendant’s right to speedy trial was violated, and it was due to Governments fault, and then irrespective of case government will compensate its citizen by providing him with a remedy. Thus delay in speedy trial became the basis of freedom of defendant from further proceedings. No further prosecution of alleged offence was accompanied.

In the case of Ungar[9], The Supreme Court stated that fair trial should be in compliance with the fair tribunals without biasedness. And the laws of US also deal with the prevention of probability of unfairness.

When fair trial is dealt by every side of law then the question that arises in a mind of a lay-man is; when a person is poor how could he enjoy the fair trial right? The answer to such a question was given by in a case of Betts[10]. In this case it was held that if a person is so poor that has unable to hire a solicitor then it may be the duty of government or a counsel to provide them with a solicitor before the court proceedings shall take place.

After the development of fair trial right it is being implemented all over the nations. Irrespective of race, color and gender discrimination and, irrespective of suit filed against that person.

 

 

 

 

 

Bibliography:

  1. http://www.findlaw.co.uk/law/government/constitutional_law/fundamental_rights/500299.html
  2. https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/article-6-right-fair-hearing
  3. http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465502
  4. http://www.jsijournal.ie/html/Volume%204%20No.%202/4%5B2%5D_Rozakis_Right%20to%20a%20Fair%20Trial%20in%20Civil%20Cases.pdf
  5. http://www.justice.gov.uk/tribunals/special-immigration-appeals-commission
  6. http://www.legislation.gov.uk/ukpga/1997/68/contents
  7. http://www.inp.org.pk/sites/default/files/Article%20Due%20Process.pdf
  8. http://pakistanilaws.wordpress.com/2012/05/03/right-of-fair-trial-in-pakistan/
  9. http://www.aclu.org/blog/womens-rights-free-speech/arehuman-genes-patentable-supreme-court-will-decide
  10. http://lhc.gov.pk/newsletters/rc_january13.pdf
  11. http://pakistanilaws.wordpress.com/2012/05/03/right-of-fair-trial-in-pakistan

Books:

  • Black’s Law Dictionary (9th Edition), Page- 676, 674, 1644

 

Table of Cases:

  1. Cadder v HM Advocate[2010] UKSC 43
  2. ECtHR Panovits versus Cyprus (11/12/2008)
  3. PISHCHALNIKOV v. RUSSIA(Application no. 7025/04
  4. JUDGMENT by STRASBOURG 24 September 2009
  5. Strunk v. United States, 412S. 434 (1973)
  6. Ungar v. Sarafite,376 U.S. 575 (1964)
  7. Betts v. Brady U.S. 335 (1963)

 

[1] 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. The Word “FAIR” defined as in Black’s Law Dictionary (9th Edition), Page- 674. Fair, adj. (bef.l2c) l.Impartial; just; equitable; disinterested. 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; http://www.findlaw.co.uk/law/government/constitutional_law/fundamental_rights/500299.html
https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/article-6-right-fair-hearing

[2] Article 10 of UDHR: “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.”

[3] 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.”

 

[4] Cadder v HM Advocate [2010] UKSC 43

http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465502
http://www.jsijournal.ie/html/Volume%204%20No.%202/4%5B2%5D_Rozakis_Right%20to%20a%20Fair%20Trial%20in%20Civil%20Cases.pdf

[5] ECtHR Panovits versus Cyprus (11/12/2008)

[6] PISHCHALNIKOV v. RUSSIA (Application no. 7025/04

JUDGMENT by STRASBOURG 24 September 2009

[7] Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

 

[8] Strunk v. United States, 412 U.S. 434 (1973)

[9] Ungar v. Sarafite, 376 U.S. 575 (1964)

[10] Betts v. Brady U.S. 335 (1963)

http://www.justice.gov.uk/tribunals/special-immigration-appeals-commission
http://www.legislation.gov.uk/ukpga/1997/68/contents

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