Right to fair trial – 22 Jun 2022

IT is scarcely an understatement to say that in Pakistan, the fundamental right to a fair trial, as provided for under Article 2 s 10A of the Constitution, is honoured more in the breach than the observance. On Monday, the Supreme Court rightly observed that the burden is on the bench to ascertain from the `facts and circumstances of the case … whether this indispensable right was afforded or not`. The two-judge bench had taken up a civil appeal by an official in the Frontier Constabulary against the Federal Services Tribunal over the rejection of his plea in November 2018 on grounds of limitation without considering the merits of the case. The plea had been filed by the appellant after repeated and unsuccessful attempts to seek relief through departmental appeals over punitive action taken against him on allegations of misconduct without any show-cause notice or hearing. The apex court ruled that `no decision which is affecting the right of any person should be taken without providing an opportunity of being heard` and that `mere technicalities` should not stand in the way of providing justice.

The right to fair trial is also part of the Universal Declaration of Human Rights. It 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.` Yet, on several occasions, the state has itself sacrificed this principle at the altar of expediency. One of the more recent and most consequential instances of this was parliament`s action of amending the Army Act and the Constitution to greenlight the setting up of military courts for prosecuting terrorists. That chapter, distinguished by an utter lack of transparency regarding the judicial process, including the denial of right of counsel of choice to the accused, fortunately came to a close in 2019. On an unofficial level, however, the state continues to violate Article 10A not to mention multiple other human rights in every instance of enforced disappearance that takes place.

At the same time, there still exists on the statute books legislation that is intrinsically at odds with the right to fair trial. For instance, the Anti-Terrorism Act, 1997, stipulates an unreasonably short time of seven days for the court to decide each case. Given that the law deals with the most heinous offences, the anti-terrorism courts, in an effort not to appear `soft` on militancy, might possibly have condemned some innocent individuals to death because there was not sufficient time for the accused to mount a robust defence. On the other hand, the glacial speed of the `regular` judicial process, resulting in a massive backlog of civil and criminal cases, also undercuts one of the fundamental prerequisites of fair trialthe right to be tried without undue delay.

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