NationalVOLUME 16 ISSUE # 11

Access to justice and right to fair trial

A state and society is deemed worth-living if most of the people are able to have the basic amenities of life. Even if most of the people have access to basic amenities but they do not have access to justice, such a society and state is still not worth-living.

This is the basic tenet of Islamic political philosophy and even the history of modern Western countries evidently proves that access to justice is the pivot on which a developed, welfare-oriented and democratic society and state could be laid. There are a number of benchmarks upon which the access to justice for all or at least a majority of the people could be evaluated. However, the most important criterions for a just society and state include the least complex or non-cumbersome procedures in the process of justice and the right to fair trial. The same criteria could be used to understand to what extent Pakistani society and the state is worth-living and how improvements could be brought about, so that most people live peacefully and happily.

Like other societies, particularly the developing ones, Pakistani society has been getting more complex. There are a number of factors for the complexity, which include but are not limited to rapid increase in the population, urbanisation, growth, migration and consequently multiplying conflict and issues. The situation has not only resulted in many opportunities of social, political and economic mobility but also created many complex issues. Quite importantly, the attainment of justice has become more and more difficult. The chaos, instability and ever-rising number of crimes in Pakistan, apart from many other macro-sociological causes, also include the denial of justice, in particular the right to fair trial. The recent killing of an unarmed 22-year young man by the police in the federal capital is a case in point. From the very outset, it appears that the parents of the young man would not get a chance to fair trial.

Another important characteristic of Pakistani society is that pseudo or unfounded charges by tribal, familial, sectarian, religious rivals or perceived opponents have been a norm. With the complexity of society, novel methods have emerged to charge one’s rivals. Those, who are accused of any wrongdoing or criminal act, the burden of proof largely shits to them. In other words, the accused have to prove their innocence instead of those who make the accusations or allegations. When the accused of crimes and wrongdoings are put under trial in a court of law, the procedure is so cumbersome that they lose a good amount of their time, resources and energies in getting their names cleared. To put it the other way, mostly those, who are accused of wrongdoings and criminality, generally don’t get the opportunity to have a fair trial. It is the system of justice that is responsible for it and not our courts, which obviously have to dispense justice under the systemic constraints. It is important to note that it is the parliament that is responsible for making laws and set parameters of the judicial system. Thus, it is the parliamentary system of Pakistan that is fundamentally responsible for the lack of access to fair trial. In Pakistan, it has been seen that even judges cannot control the surrounding circumstances to completely ensure a fair trial to every individual.

Pakistan’s legal framework for a criminal trial is rooted largely in a multiple set of laws, including but not limited to constitutional provisions and principles, substantive and procedural laws, prisons rules as well as parole and probation regimes. The Pakistan Penal Code (PPC), 1860, is the predominant criminal law regime. The Criminal Procedure Code (CrPC), 1898, provides a legal procedural framework for hearing, acquittal or sentencing/punishment. The Qanoon-e-Shahadat Order, 1984, conditions the law of evidence. Besides the general laws in vogue in the country, there are special and local laws having exceptional and circumstantial procedures.

The British colonial rulers introduced the Indian Penal Code (the forerunner of criminal law in Pakistan) and promulgated the Indian Criminal Code. Both legal regimes introduced reforms to the decadent and hackneyed Indian judicial system. The reforms include legal codification, progressive punishments, elaborate procedure, appropriate checks and balances at various tiers, equity, equality before the law and introduction of damage as the defining criterion of the crime. But societal dynamics, including poverty, ignorance and unsophisticated lifestyles of the then Indians prevented the masses from getting real and meaningful benefits of the legal reforms. The concomitant factors and elements of the reforms, especially professional lawyers in the criminal justice system, made it quite cumbersome to attain justice.

Pakistan inherited the same criminal procedure and framework which has never satisfied its people. It is evident from the fact that the conviction rate is not believed to be more than 10pc while the crime rate is ever-increasing. Even legislative amendments, constitutional provisions and laws to reform the criminal justice system in different eras have largely failed to guarantee fair trial rights to the suspects and accused. In 2010, Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture (CAT), thus committing to ensuring fundamental human rights of the citizens including the right to a fair trial. As a result of it, Pakistan inserted a new Article 10-A to its Constitution in 2010, which exclusively deals with the right to fair trial. The right to fair trial is an essential right in all countries having committed themselves to human rights frameworks. Numerous international human rights regimes, such as the Universal Declaration of Human Rights (UDHR), have the right to fair trial as its cardinal part.

Keeping in view the violations of human rights of Pakistanis, especially the right to fair trial, there is a great need to ensure the right of the people of Pakistan. In this regard, there is a need to first identify procedural problems and lacunas in our criminal justice system. An extensive research has been conducted in this regard and the policymakers need to make use of it. On the other hand, there is a need to develop a minimum criteria or index of fair trial and it must be in consonance with the internationally recognized criteria. Unless the right to fair trial is ensured to all Pakistanis, meaningful development, peace and welfare cannot be ensured.