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ARTICLE 10-A OF 1973 CONSTITUTION:

1. INTRODUCTION
The right to fair trial is seen as an essential right in all countries respecting
the rule of law. A trial in these countries that is deemed unfair will typically be
restarted, or its verdict quashed.
The right is enshrined in numerous declarations which represent customary
international law, such as the Universal Declaration of Human Rights
(UDHR).Various rights associated with a fair trial are explicitly proclaimed in
Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment
to the United States Constitution, and Article 6 of the European Convention of
Human Rights, as well as numerous other constitutions and declarations
throughout the world.
2. OBJECT
The aim of the right is to ensure the proper administration of justice. The
right to a fair trial is a norm of international human rights law designed to
protect
individuals from the unlawful and arbitrary curtailment or deprivation of other
basic rights and
freedoms, the most prominent of which are the right to life and liberty of the
person.
3. DEFINITION
Blacks Law Dictionary (9th Edition), Page- 676
A trial by an impartial and disinterested tribunal in accordance with regular
procedure; esp., a criminal trial in which the defendants constitutional and
legal rights are respected.

4.

RELATIONSHIP OF RIGHT TO FAIR TRIAL WITH OTHER


RIGHTS

The rights conferred through Article 4,9,10,12,13 and 25 of Pakistan


constitution. The right to equality before the law is sometimes regarded as part
of the rights to a fair trial. The right entitles individuals to be recognized as

subject, not as object, of the law. Thus important right is also provided in 5 th and
6th American constitutional amendment. The right to fair trial is guaranteed by
Article 10 of universal declaration on human rights 1948 and by Article 14 0f
covenant on civil and political rights 1966.
5. 10 A A GUARANTEED FUNDAMENTAL RIGHT
Now after the insertion of Article 10-A (Right to fair Trial) in Chapter 1
(Fundamental Rights), Constitution of Pakistan, 1973 the Right to Fair Trial is
one of the guaranteed Fundamental Rights and by virtue of Article 8 of the
Constitution of Pakistan, 1973 if any law, or any custom or usage having the
force of law, insofar as it is inconsistent with the Fair Trial right, to the extent of
such inconsistency, be void, and under the Constitutional Jurisdiction the
Superior Courts of the Country may declare such law, custom or usage having
the force of law, to the extent of such inconsistency, void.

6. COMPARATIVE ANALYSIS OF RIGHT TO FAIR TRIAL


PAKISTAN
In Pakistan the same position was followed as were in UK relating to the
principle of natural justice but now after 18th amendment in the constitution the
situation has changed .18th amendment after inclusion of right of fair trial and
proceedings which is analogous to the due process clause of USA constitution
the position is little bit shifted towards the USA rather than UK.
ARTICLE 10 A RIGHT TO FAIR TRIAL
For the determination of his civil rights and obligations and in any
criminal charge against him a person shall be entitled to a fair trial and due
process.
"Fouji Foundation and another vs. Shamim-ur-Rehman
NLR 1984 SCJ 403",
in which the doctrine of due process of law has been summarized as follows:-1.

He shall have due notice of proceedings which effect his rights.

2.

He shall be given reasonable opportunity to defend.

3.
The Tribunal or Court before which his rights are adjudicated is so
constituted as to give reasonable assurance of its honesty and impartiality; and
4.

That it is a Court of competent jurisdiction.

FAIR TRIAL RIGHTS IN UNITED STATES


The Fifth and Fourteenth Amendments to the United States Constitution each
contain a Due Process Clause. Due process deals with the administration of
justice and thus the Due Process Clause acts as a safeguard from arbitrary denial
of life, liberty, or property by the Government outside the sanction of law.
[16]
The Supreme Court of the United States interprets the Clauses as providing
four protections: procedural due process (in civil and criminal
proceedings), substantive due process, a prohibition against vague laws, and as
the vehicle for the incorporation of the Bill of Rights.
FAIR TRIAL RIGHTS IN ENGLISH LAW
Clause 39 of the Magna Carta,
John of England promised as follows: "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."
Phrase due process of law
first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the
reign of Edward III of England, as follows: "No man of what state or condition
he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor
put to death, without he be brought to answer by due process of law."[6]
Jurist Edward Coke
In 1608, the English wrote a treatise in which he discussed the meaning of
Magna Carta. Coke explained that no man shall be deprived but by legemterrae,
the law of the land, "that is, by the common law, statute law, or custom of
England.... (that is, to speak it once and for all) by the due course, and process
of law.."[7]
English Bill Of Rights 1689
freedom to have a fair trial or not to be punished without trial.

7. ESSENTIALS OF FAIR TRIAL RIGHTS


The right to a fair trial is one of the most litigated human rights and substantial
case law has been established on the interpretation of this human right. Despite
variations in wording and placement of the various fair trial rights, international
human rights instrument define the right to a fair trial in broadly the same terms.
As a minimum the right to fair trial includes the following fair trial rights in
civil and criminal proceedings:
The right to be heard by a Competent, Independent and
impartial Tribunal
The basic institutional framework enabling the enjoyment of the right to a fair
trial is
that proceedings in any criminal case (or in a suit at law) are to be conducted by
a competent,
independent and impartial tribunal established by law . The rationale of this
provision is to avoid the arbitrariness and/or bias that would potentially arise if
criminal charges were to be decided on by a political body or an administrative
agency.
Matloob Hussain V. State 2005 MLD 1101
In criminal matters it is the right of the parties to have fair trial
uninfluenced and unbiased by any act of the court and it is also an
established principle of law that act of court should not prejudice any
party.The accused has a right to an impartial jury.
Hurtado V California 110US 516
Facts:Hurtado was convicted of murder in california and sentenced to
be hanged .California law provided for indictment by
informationprepared by the prosecuting attorney,rather than by a
grand jury.
Issue: Does the Due Process Clause of the Fourteenth Amendment require
states to secure grand jury indictments in order to prosecute defendants for
?felonies

Holding: No, the Fourteenth Amendment did not incorporate the grand jury
.requirement, nor does due process require grand jury indictments

Mir Ghous Bakhsh Bazenjo V. The State 1969 P.Cr. L. J 991


Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of any criminal
charge against him.
The right to a public hearing
The right to a public hearing means that the hearing should as a rule be
conducted orally and publicly, without a specific request by the parties to that
effect. The court or tribunal is, inter alia, obliged to make information about the
time and venue of the public hearing available and to provide adequate facilities
for attendance by interested members of the public, within reasonable limits.
There must be an equal and reasonable opportunity for all parties to present a
case .The right to a fair hearing depends on many issues ,such as the
presentation of evidence and the behaviours of members of court, public and
press. The significant part about 10a is that now in future no law repugnant to
these elements can be ever made.
Mir Ali Ahmad vs Province of West Pakistan
PLD 1956 Karachi 237
Under the sindh distt municipal Act 1901,the sindh govt had power to supersede
any municipality on the grounds available in the Act.The sindh govt under s.179
of the Act superseded the tandu municipality without giving opportunity to
defend.
Holding; Right of practice affected so the govt should act judicially and even if
the administrative action affected rights,principle of hearing should be given.

The right to be heard within a reasonable time

Mureed V. State 2010 MLD 318


It is well settled that expiditious and fair trial was the fundamental right of
the accused,criminal case must be disposed of without unnecessary
delay,inordinate delay in imparting justice was likely to cause erosion of
public confidence in the judicial say on one hand and and on the other hand
it was bound to creat a sense of helplessness ,despair,feeling of frustration
and anguish apart from apart from adding to the woes and miseries of the
public.
The right to a counsel.
The right to be provided and communicate with counsel is the most scrutinized
specific fair trial guarantee in trial observation practice, because it has been
demonstrated to be the one that is most often violated. Principle 1 of the Basic
Principles on Lawyers states that all persons are entitled to call upon the
assistance of a lawyer of their choice to protect and establish their rights and to
defend them in all stages of criminal proceedings. This right is particularly
relevant in case of pre-trial detention. However the right to counsel is also an
important element of the right to adequate facilities for the preparation of a
defense.

The right to be notified of charges in a timely manner


Hidayatullah V. The State 2007 YLR 1311
Expeditious and fair trial is the right of every accused.The purpose of trial is not
to punish the accused without trial.Inordinate delay if not explained ,would
amount to abuse of process of law even in cases of capital punishment

The right to adequate time and means for the preparation of a


defense

In the determination of any criminal charge against him or her everyone is


entitled To have adequate time and facilities for the preparation of his defense
and to communicate with counsel of his own choosing. The right to adequate
time and facilities for the preparation of a defense applies not only to the
defendant but to his or her defense counsel as well.
What constitutes adequate time will depend on the nature of the proceedings
and the factual circumstances of a case
Nazeer Ahmed alias Papu V. State 2010 YLR 722
Expeditious and fair trial is a fundamental right of accused person .The
intention of law is that the criminal case must be disposed of without
unnecessary delay.
The right not to incriminate oneself
In the determination of any criminal charge against him/her, everyone is entitled
Not to be compelled to testify against himself or to confess guilt.
This provision aims to prohibit any form of coercion, whether direct or indirect,
physical or mental, and whether before or during the trial, that could be used to
force the accused to testify against him/herself or to confess guilt.
Twining vs New Jersey 211 US 78
The US supreme court held that privilege of self-incrimination was not
immutable principle of justice .It was not an inalienable right of every citizen
and did not rank equal with the rights like hearing before condemnation ,the
immunity from arbitrary power not acting by general laws or the inviolability of
private property.

The right to appeal at first instance to a higher Court and the


prohibition on double jeopardy
Article 20 0f ICC Statute
No one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country .

The prohibition of ne bis in idem or of double jeopardy is aimed at preventing a


person from being tried and punished for the same crime twice.
8. APPLICABILITY OF RIGHT TO FAIR TRIAL
The right to a fair trial applies not only to judicial proceedings, but also
administrative proceedings. If an individuals right under the law is at stake, the
dispute must be determined through a fair process.
The right to a fair trial is often held as a central constitutional protection. It
nevertheless remains unclear what precisely should count as a fair trial and
who should decide verdicts.InPakistan the Superior Courts, even before
insertion of Right to Fair Trial, in Chapter-I of the Constitution, 1973
recognized such right by various pronouncements.
9. ARTICLE 10A CONFERS RIGHT TO FAIR TRIAL AND DUE
PROCESS
Article 10a confers right to fair trial and due process not only in respect of
criminal prosecutions but also extends these rights for the determination of civil
rights and obligations. Due process is the conduct of legal proceedings
according to established rules and principles for the protection and enforcement
of private rights before a competent tribunal.
JUSICE HOMES
Whatever disagreements there may be as to the phrase due process of
.law.It is actually the fair trial-----the opportunity of hearing
.
10. DUE PROCESS
The Constitution states that the government cannot take away a persons basic right 'life,
liberty or property, without due process of law.
Definition:
Due Process: A fundamental, constitutional guarantee that all legal
proceedings will be fair and that one will be given notice of the proceedings
and an opportunity to be heard before the government acts to take away one's
life, liberty, or property. Also, a constitutional guarantee that a law shall not be

unreasonable, ARBITRARY, or capricious.

Mian Mohibullah Kaka Khail, volume 1


Due Process of Law.--The word "due" in the expression "due process of law" in the
American Constitution is interpreted to mean just, according to the opinion of the
Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what
is "due from otherwise, according to law.
Staurt vs palmer 74 NY 183
Due process of law is based upon the principle of natural law,which is older than written
constitution ,that a citizen should not be deprived of his life,liberty or property without an
opportunity to be heard in defence of his rights,and the constitutional provision that no
person shall be deprived of these without due process of law.
Right Guaranteed Under Due Process Clause
Right to a fair and public trial conducted in a competent manner
Right to be present at the trial
Right to an impartial jury
Right to be heard in one's own defense
Laws must be written so that a reasonable person can understand what is
criminal behavior
11. ARTICLE 10 A IS CONCERNED WITH PROCEDURAL DUE PROCESS OF
LAW
Substantive due process require legislation to be fair and reasonable in content
and to further a legitimate governmental object.
Procedural due process refers to the procedure government must follow before
depriving a person of his life and liberty.Article 10a is concerned with
procedural due process of law.