The prime minister’s (PM’s) contempt of court case is the first case where both, the justice system and its administration under Article 10A of the Constitution, will be tested. Indeed, the entire public discourse on the Yousaf Raza Gilani case revolves around how the courts follow the legal and procedural requirements of a fair trial. The fair trial principle, embodying due process, is a cornerstone of the common law system and recently, in Pakistan, has received a new impetus as it has been made a part of the most crucial aspect of the Constitution: fundamental rights.
The 1973 Constitution guarantees all citizens equality before the law. In the Eighteenth Amendment, the 1973 Constitution has not only been restored to its original shape but has also been strengthened, especially in the case of the fundamental rights chapter where three provisions have been included; Article 25A: Right to Education, Article 19A: Right to Information, Article 10A: Right to fair trial.
The fundamental law has an overriding effect on all laws, as the Constitution states that: “Any law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this chapter, shall, to the extent of such inconsistency, be void.” The fundamental rights chapter is safeguarded by the superior judiciary; an essential area where the higher courts exercise original jurisdiction.
The newly introduced Article 10A reads: “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.”
This makes fair trial an inviolable principle of the law of our land. The right to a fair trial is also an essential part of the international human rights law and includes: the right to be notified of charges in a timely manner, the right to adequate time for the preparation of a defence, the right of the accused to defend him or herself, the right to a counsel chosen by the accused and the right to communicate privately with the counsel and, most importantly, the right to appeal to a higher court. More recently, the role of the media in depriving the accused of the right to a fair hearing has been under debate, especially in the India, where judges are now considering devising a code of ethics for media reporting in such cases.
In some common law countries, the principle of fair trial has been considered the very method through which courts control their own processes and procedures. Ensuring that the court’s processes are fair to the citizens is a more intrinsic a principle to protect and uphold than declaring someone guilty or innocent. In other words, the means are more important than the end itself.
I am sure that the proceedings of this case will be observed with interest by the legal community, the human rights community but, most importantly, by every citizen of Pakistan to whom Article 10A applies for due process of the law.
The political parties demanding the resignation of the PM seem to be overlooking the fact that the trial is not yet over, notwithstanding the short order of the Supreme Court. At this stage, the Supreme Court has invoked its original jurisdiction, which means that there are further steps before the trial will be deemed complete. The Contempt of Court Ordinance 2003 Section 19(iii) allows the prime minister this right; “in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-court appeal shall lie to a bench of five or more judges.” The PM has the right to appeal once the full judgment is received; after this, he has the right to review the judgment once it has been given. Only after the right of review is completed and he is declared guilty can the disqualification process start. In effect, the PM has served his sentence without receiving a copy of the full judgment, which is a procedural flaw and has been noted by the legal community. In any conviction judgment, whether of 30 seconds, three months or three years, the convicted party has a right to receive the full text, explaining reasoning of the court, so that the defence may take the process of the appeal forward.
That the conviction sentence has already been served complicates the argument but there is still no legal ground on the basis of which some political parties are demanding his resignation. The PM has not – as yet – been convicted on moral turpitude, giving false evidence, or for absconding, as are the basis of eligibility for elections to the parliament, in the Conduct of General Elections Order 2002.
It has also been pointed out that Prime Minister was charged with disobeying the court — a civil contempt and not ridiculing it, which constitutes judicial contempt. All defence witnesses presented argued on the court charge of the civil contempt. However, the short judgment has invoked Article 63 1g, a constitutional provision for scandalising the court, for which he was not charged. Punishing the prime minister for a charge that was not clearly stated and, therefore, not defended has raised questions of due process and fair trial procedure. As the ancient legal maxim holds “No person shall be condemned unheard”. And now voices are already being raised on whether this is happening in the case of a citizen who also happens to be the prime minister and enjoys the support of the majority of this nation.
Published in The Express Tribune, May 4th, 2012.
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