Dr Muhammad Khan
THERE exists a controversial debate all
across the Pakistani society, the legal fra
ternity, media and academic circles over the trial of Justice Qazi Faez Isa. Some of the debates are inclined that, Justice Essa is being favoured by the Supreme Court during the proceedings whereas others feel that he is being un-necessarily dragged into a trial which legally does not belong to him directly. What comes out later as a result of trail and proceedings in the form of a verdict, will be debated then. Let’s debate the provisions of international law and the Constitution of Pakistan about justice system. International law is sum total of all internationally agreed treaties, covenants and set of norms and rules. The sources of international law include international custom, treaties, and general principles of law recognized by most national legal systems. International law may also be reflected in international comity, the practices and customs adopted by states to maintain good relations and mutual recognition, such as saluting the flag of a foreign ship or enforcing a foreign judgment.
The Universal Declaration of Human Rights, adopted by United Nations in 1948, articulates fundamental rights and freedoms for all. As per Article 7 of the Universal Declaration of Human Rights (UDHR), “All are equal before the law and are entitled without any discrimination to equal protection of the law.” This is the historic statement for the provision of justice to everyone and anyone, irrespective of class, colour, creed and place origin. Indeed, this article is extracted from the Last Address of the Holy Prophet (PBUH), which says, “All humans are equal to each other” and there is no superiority based abovementioned factors. Based on Islamic ideology, the Constitution of Pakistan-1973 has incorporated the relevant and essential articles of the UDHR. Intentionally or otherwise, the ‘right to fair trial’ was missed in the articles of constitution. This is despite the essence of the constitution stress upon the promotion of and respect for the human rights. Later, Article 10-A was inserted in the Constitution of Pakistan through 18th Amendment in 2010. As per this new insertion (Article 10-A, “Right to fair trial: 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.” Prior to 2010, this ambiguity existed in the constitution could have been exploited by affluent classes. However in the post 2010 environment, right to fair trial has ended the ambiguity and made it as the fundamental constitutional right for all citizen of Pakistan, irrespective of the class or category. It has uniform coverage; extended to criminal charges, the civil rights and all other cases and obligations.
On the pattern of European Convention on Human Rights (ECHR), the essence of the fair trial includes; “a fair and public hearing, an independent and impartial tribunal, announcement of the judgement in open court in a reasonable time, presumption of innocence of the accused in a criminal offence until he is shown to be guilty beyond reasonable doubt; availability of safeguards to a person charged with a criminal offence, including the right to be informed of the charge against him, to have adequate time and facilities to prepare his defence, to be defended through counsel or in person, to avail legal aid if required, to produce witnesses or have witnesses summoned and examined and to have an interpreter in case of a language problem. In the light of abovementioned prerequisites of a fair trial as provided by Article 10-A, two sitting prime ministers of Pakistan were tried and de-seated from their incumbent positions with some additional penalties and punishments. Former Prime Minister, Youssef Raza Gillani and Mian Muhammad Nawaz Sharif were provided with fair trial in the contempt of court case and the Panama case respectively. The Supreme Court added that through Article 10-A, the right had been “raised to a higher pedestal”. Elaborating on the principle that ‘justice should not only be done but be seen to be done’ the Supreme Court held that a judge may not adjudicate upon any case in which he has a personal interest, regardless of whether his decision is likely to be influenced by it.
Contrary to the removal and penalties to two sitting Prime Ministers, the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry was given preferential treatment in the charges against him and his son. Arsalan Iftikhar, Son of former Chief Justice Chaudhry had extracted the payments in return for favourable treatment in a slew of court cases related to Property Empire of Malik Riaz. Arsalan Iftikhar had received huge sums from Malik Riaz for his luxury vacations in London, gambling in Monte Carlo and substantial cash kickbacks. Similarly many other judges of the high courts and superior court were given preferential treatments in their trials. Currently, a 10-member full court, headed by Justice Umar Ata Bandial is hearing the cases against Justice Qazi Faez Isa in presidential reference filed against him for not disclosing his foreign properties in his wealth returns. Since the case of Justice Faez Isa is subjudice in the Supreme Court of Pakistan thus prohibited from public discussion. However, let’s there be a justice system prevailing in in Pakistan as per the essence of the Constitution of Pakistan across the board without discrimination of community, status or social class.
— The writer is Professor of Politics and IR at International Islamic University, Islamabad.
