Lawyer at Trek Law
When public men indulge themselves in abuse, when they deny others a fair trial, when they resort to innuendo and insinuation, to libel, scandal, and suspicion, then our democratic society is outraged, and democracy is baffled.
J. Willian Fulbright
Keywords: due process, historical background, meaning of due process, magna carta, procedural due process, substantive due process, right to fair trial, article 10A, constitution of Pakistan 1973, components of due process, implementation of due process, impartial tribunal, UDHR, legem terrae.
Earlier numerous jurists attempted to verbalize a theory of natural rights and natural justice, which would primarily curtail the power of government, particularly with reference to the property rights of person. James Madison famously wrote:
“In framing a government which is to be administered by men over men, the great difficulty lies in that you must first enable the government to control the governed; and in the next place oblige it to control itself.”
For centuries efforts have been made by all those who care about governance and supremacy. One main conception in this struggle is “due process”, a phrase knotted to historic rights against the governors, evoking simultaneously standards of fairness, uniformity, and constriction. The comprehensive application of due process, however, is not limited to its traditional meaning but also to protean attributes less compatible with the rule of law.
England and the United States were well aware of this concept when the U.S. Constitution was written. The crucial ideas entrenched in due process rights are that government must act through regular processes, that the processes must be suitable to the decision being made, and that the processes must propose elementary rule of law shelters against arbitrary or obnoxious government power.
The concept of due process is derived from the principle of natural justice, which has been loosely employed for quite a long time as a specialized term for procedural impartiality. There are components or stages that form or end into due process; such as notice of proceedings to the affected individual, opportunity of hearing, opportunity to cross examine or question the adverse evidence or material so confronted and that all such hearings should be open before an impartial tribunal or court. In addition, the decision should speak which means that it should plainly explain in simple terms the reasons grounded on which ultimate verdict was given.
Both in civil and criminal matters, due process is an essential principle of fairness especially in the courts. All legal procedures established by statute and court practice, including notice of rights, must be observed for each individual so that no detrimental or unequal treatment will result. Black’s law dictionary 6th ed. states that Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.
This implies that no individual will be denied of life, freedom, property or of any right conceded him by statute, except if matter involved first shall have been settled against him upon trial conducted according to established rules regulating judicial proceedings, and it prohibits conviction without a hearing. The concept of due process of law stresses that a law shall not be unreasonable, capricious, or whimsical and that the means selected shall have a rational and considerable relation to the object being required. Fundamental requisite of “due process” is the opportunity to be heard, to be aware that a matter is pending. To make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice.
The origin of due process is often traced back to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons. Chapter 39 of the Magna Carta states that
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
It has a noteworthy significance as the meaning behind this is that the supremacies of the king are not absolute, but rather limited to justice. The Right to Due Process of Law is one of the most profoundly established principal of our modern day laws. It reduces the chance of giving the innocent the death penalty. It protects people from condemnation, and it also gives people power to stand up for injustice they face from the government. 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, that is, by the common law, statute law, or custom of England by the due course, and process of law.
Because of the Right to Due Process of Law, many innocent people are saved from a life time imprisonment or being penalized to death penalty. In case of absence of this concept in our laws, lots of innocent people will be arrested because of mere doubt that they have the intention of doing something. That is unfair and a serious matter. Albeit some may contend that this would allow the guilty to get away from the punishments of law, the Pros for condoning this right would outweigh the Cons. More innocent people will be saved from being falsely accused than letting guilty people get away with
their crimes. If a person is guilty, they will be proven guilty because there is no escape from the truth. There is an old Chinese saying “paper cannot wrap up a fire” meaning that no matter how hard one tries, it is impossible cover fire with paper, that what is hidden cannot stay hidden for long, just like how the truth will always prevail.
Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.
Procedural Due Process:
Procedural due process refers to the constitutional requirement that when the federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision maker.
Substantive Due Process:
Substantive procedural due process restricts the power of the legislative, executive, and judicial branches to redefine due process and infringe upon the constitutional rights of people. In other words, the state cannot simply do away with due process.
Components of Due Process of Law:
Although due process tolerates variances in procedure (appropriate to the nature of the case) it is nonetheless possible to identify its core goals and requirements. First, procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests. The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery that a decision be made based on the record, and that a party be allowed to be represented by counsel.
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable follow up measures” that may be available. In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest. Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it. Such notice, however, need not describe the legal procedures necessary
to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.
Some form of hearing is required before an individual is finally deprived of a property or liberty interest. This right is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment. Thus, the notice of hearing and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner.
3. Impartial Tribunal.
Just as in criminal and quasi-criminal cases, an impartial decision maker is an essential right in civil proceedings as well. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness. By ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.
A fair trial along with the preservation of human dignity is one of the most important features of Islamic judicial measurement and is a guarantee for individuals to enjoy the fundamental principles of human rights such as freedom and equality. Justice and fairness in the school of thought of Islam is one of the principles of religious belief and with this description, it includes dignity and status beyond the realm of human life, so that it can be said that the foundation of existence is laid on it and it is obvious.
The Qur’an places special emphasis on the administration of justice, which is the basis of justice. In verse 58 of Surah An-Nisa, God introduces the basis of the judicial system as the principle of justice and says: “Whenever you rule among the people, judge with justice.” So everything in the affairs of government must be in accordance with the standards of justice. Verse 58 of Surah An-Nisa also emphasizes on a just trial based on divine commands, and in the tradition of the Prophet (PBUH), a trial is based on justice.
An illustration of this can be found in the legal practice during the Caliphate of Umar, where Ubay ibn Ka’b was litigating against Umar in a case arbitrated by Zayd ibn Thabit. Given Umar’s status as Caliph, the judge Zayd stood from his seat as a gesture of respect upon Umar entering the courtroom and was berated by the Caliph for having unjustly treated the plaintiff. Despite not being able to substantiate evidence to incriminate Umar, Ubay felt it was only right that the Caliph take oath to sustain a denial of the allegation although the judge expressed that Umar need not observe such a formality. On this occasion, Umar rebuked Zayd for being favorably disposed to him, exclaiming, “You cannot be a just judge until a common man is equal to the Umar who stands before you”, thus establishing the principle that judges absolve themselves from the executive. Judging by the court practice of Umar, there
emerged a consensus among Muslim jurists that under no circumstance is a judge permitted to waive immunity on the basis of an individual’s rank.
Due Process in Pakistan:
The borders between legal and illegal, valid and void and constitutional and unconstitutional acts are well defined in our constitutional and legal dispensation. Our constitution contains guarantees in the form of numerous fundamental rights. These rights have two sources and facets. They are a guarantee obtained from the state by citizens and other persons in Pakistan that, while exercising its powers in relation to them, the state in its actions shall observe those rights.
Justice Alvin Robert Cornelius, an eminent jurist and legal philosopher and the first catholic judge to serve as the Chief Justice of Pakistan (1960-1968), was a renowned advocate of human rights who also became a prominent freedom activist of Pakistan movement. His judgments formed the basis for introducing ‘judicial review’ of administrative action, due process of law, equality before the law, and the principles of natural justice. Justice Cornelius developed the concept of due process of law in Pakistan. In Saiyyid Abul A’la Maudoodiabul Ala Maudoodi v. Government of West Pakistan, he believed that the courts not only have the right to strike down the statutes which are repugnant to the Constitution, but also executive action can be taken under a statute if due process of law has not been observed. He emphasized that the requirements of the due process of law include; notice in advance and the opportunity to be heard, where deprivation of private right is threatened. He held in Government of East Pakistan v. Rowshan Bijaya Shaukat Ali Khan that it was within the powers of courts in Pakistan to subject an executive action to judicial review, which was in derogation of a private right derived from the Constitution.
In the year 1948, The Universal Declaration of Human Rights was adopted by forty-eight members of the United Nations among which Pakistan was one. The President of the UN General Assembly welcomed the adoption of the UDHR in the following terms:
“very important Declaration by a big majority without any direct opposition was a remarkable achievement, the Declaration only marked a first step since it was not a convention by which States would be bound to carry out and give effect to the fundamental human rights; nor would it provide for enforcement yet it was a step forward in a great evolutionary process. It was the first occasion on which the organized community of nations had made a declaration of human rights and fundamental freedoms. That document was backed by the authority of the body of opinion of the United Nations as a whole and millions of people, men, women and children all over the world, would turn to it for help, guidance and inspiration.”
The Constitution of Pakistan, 1973 discloses that, some of the articles of the UDHR were assimilated into it. Amazingly, nonetheless, the ‘right to fair trial’ was left out, despite Pakistan guaranteeing to endorse and respect human rights and to take effective measures both in the national and international domains, twenty-five years earlier, in 1948. The ‘right to fair trial’ in Article 10 of the UDHR 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.”
Implementation of Right to Fair Trial:
In 2010, Article 10-A was inserted in the Constitution by the 18th Amendment and can be interpreted as follow that Right to fair trial ensures that For the determination of civil rights and obligations or in any criminal charge against a person, he shall be entitled to a fair trial and due process.
Article 10-A is fundamentally related to and dependent on other fundamental rights guaranteed by the Constitution. Commonly, the Constitution gives each resident the option to be managed as per the law, provides for their equality before law and equal protection, gives protection against illegal actions which are disadvantageous to their life, liberty, body, reputation or property, allows them to do all that is lawful and protects them from being compelled to do anything which the law does not require them to do. More explicitly, in the perspective of a ‘fair trial’, the Constitution makes provision for protection against illegal deprivation of life and liberty, including safeguards as to arrest and detention which require that an arrested and detained person be informed of the reason for his arrest, have the right to consult and be defended by a counsel of his choice and have the right to be produced before a magistrate within twenty-four hours of his arrest
Article 10-A pledges that in the determination of individual’s civil rights or in a criminal charge, a person shall be authorized to fair trial and due process. This lately documented right, along with Articles 4, 9, 10, 13 and 14 of the constitution, creates a firm duty upon state officials and adjudicatory forums that state actions must be judged against these rights. These constitutional rights are only occasionally in issue before the courts while deciding matters relating to life and liberty of the people.
In Pakistan, astonishingly, the superior court has not given interpretation or reception to Article 10-A as was envisaged after the Eighteenth Amendment. The Courts keep on referring to common law maxim of Audi alteram partem (listen to each side of the story) or generally rely on the principles of natural justice instead. This will change inevitably as the Court processes, are at times, propelled by societal trends and evolving global Constitutional norms.
From the time when Article 10A turn out to be a part of the Constitution it has been quoted often in judicial decisions but with little explanation as to what exactly it means. Litigants also seem to share the judiciary’s partiality for referring to Article 10A in their petitions, but after observing the judgments on this Article, it seems like everyone knows it’s in the Constitution but nobody knows what it means. None of the judgments on Article 10A can be said to have jumped on the opportunity to lay out the exact scope and ambit of this fundamental right.
Even though the judiciary cannot alone be expected to truly make the people of Pakistan believe in the legitimacy of a right, it has a part to play given the fact that fair trial issues are continually hidding in the shadows of many issues in Pakistan. For example, the target killing of Malik Ishaq comes to mind, the extreme media assumption of culpability in the case of Shahrukh Jatoi, the secret trials before military
courts, and various provisions of the National Accountability Bureau Ordinance, all of these raise issues related to Article 10A, and although many issues do not come before the higher appellate courts, those that do get there result in the judiciary never giving Article 10A much importance. All over the world the most important constitutional questions regarding the right to a fair trial come about in cases concerning the criminal law. While in Pakistan, although the appellate courts hear countless criminal cases, since Article 10A’s inception no case has even bothered to elaborate and define it.
Trial of GEN Pervez Musharraf’s perhaps is one of the most important trials in Pakistan’s modern history. Since 2016, the proceedings have been conducted in absentia, when Musharraf left for treatment abroad. The right to be present at one’s trial is a vital element of a fair trial. Under international law, including Article 14 of the ICCPR to which Pakistan is a party, as per the UN Human Rights Committee, for criminal proceedings in the absence of the accused to be allowed in such situations, First, accused individuals should be educated regarding the procedures adequately ahead of time nonetheless decline to be present. Second, notwithstanding the absence of the accused, all steps must been taken to inform accused persons of the charges and to notify them of the proceedings. Third, the right to a defense must be observed.
A scrutiny of Musharraf’s trial exemplifies that these safeguards have to a large extent been ensured. The Supreme Court heard a petition regarding the delay in the proceedings. In its judgment, it noted the tenacious absenteeism of the accused from the proceedings, and held that “if the accused voluntarily chooses not to exercise his right to appear and to be present at trial, it does not infringe on the fairness of the trial”.
Due process is the legal prerequisite that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and right of individuals and protects the individual person from abusive exercise of power by the government. When a government troubles a person without following the exact course of the law, this institutes a due process violation, which offends the rule of law. Due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights.
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