Toshakhana ruling under scrutiny

Legal experts weigh in on trial court ruling pointing out procedural flaws in proceedings

ISLAMABAD:

Legal minds in Pakistan have expressed serious reservations over the trial court's handling of the Toshakhana case, specifically pointing out the blatant disregard for due process and the erosion of democracy through such decisions.

While legal minds withheld comments on the specific facts leading to former premier Imran Khan’s conviction, their concerns focused on the procedural flaws in the court's proceedings and its serious implications.

They criticised the court for what they viewed “as a hasty and compromised decision” and argued that the ruling echoed previous allegations made by Imran’s lawyers regarding the rushed proceedings of the Islamabad High Court (IHC).

Abdul Moiz Jaferii, an advocate, highlighted the perceived flaws in the trial court's proceedings, regretting that the court's actions were in violation of the orders of the Islamabad High Court (IHC).

The IHC specifically instructed the trial court to thoroughly examine the merits of Khan's applications. Instead, the trial court cited Khan's absence as a reason to conclude that he had been given an opportunity to be heard, he bemoaned.

In cases where the accused is evading the court's jurisdiction, Jaferii argued that coercive measures, such as summoning the accused through the police, should have been employed. If such means proved inadequate, he suggested that the accused should have been declared a proclaimed offender.

However, under no circumstances should a judgement on the merits be announced in absentia, he said and deemed the court's decision “ridiculous”.

He further argued that the ruling not only disregarded due process but also directly flouted the explicit directions of the IHC. “But it seems this court had to announce a decision today. Imran Khan exposed this farce by not attending,” the lawyer added.

‘Reminiscent of Nawaz’s conviction’

Salahuddin Ahmed, a Karachi-based lawyer, believes Additional District and Sessions Judge (ADSJ) Humayun Dilawar was “the new Arshad Malik” – the late accountability judge who had convicted ex-premier Nawaz Sharif in the Al Azizia reference, sentencing him to seven years in jail.

Ahmed pointed out the striking resemblance between the swift proceedings of Nawaz Sharif's trial before the 2018 elections and the rapid pace seen in Imran Khan's trial on Saturday.

According to Ahmed, these parallels give rise to serious concerns that due process is being sacrificed in order to achieve a predetermined outcome.

Citing the age-old principle that justice must not only be done but also be seen to be done, he emphasised that even if a decision was ultimately correct on its merits, it remains flawed if it fails to ensure the accused's right to due process.

The comparison drawn by Salahuddin Ahmed between ADSJ Humayun Dilawar and Arshad Malik - a judge embroiled in controversy – adds to the growing scepticism surrounding the fairness and transparency of high-profile trials.

‘Symbolic destruction of justice’

Similarly, Faisal Siddiqi, an activist lawyer, expressed grave concern over the trial court's judgment, viewing it as a symbolic destruction of political justice in the country.

Siddiqi asserted that the judgment was “a result of revenge politics on the part of the PDM government and the political manipulation by the deep state”. He not only called for the judgment to be overturned but also urged the superior judiciary to investigate the author judge for tarnishing the entire judicial system's reputation.

Echoing Siddiqi's sentiments, Tariq Mahmood Khokhar, former additional attorney general, highlighted concerns of potential judicial bias or an appearance of bias throughout Imran Khan's trial.

He pointed out that these circumstances alone provided sufficient reasons for a judge to recuse themselves from a case and further noted that Imran Khan's rights to present evidence, including calling witnesses, were denied.

Khokhar reminded that judicial fairness, independence, and impartiality should extend not only to the final decision but also to the process through which it is reached.

According to Khokhar, the case highlights a denial of procedural due process due to politically motivated trial, conviction, and sentencing. He regretted that the judge failed to avoid impropriety and presented an appearance of impropriety.

Khokhar lamented that in current times, an order by an additional sessions judge carried more weight and significance than the orders issued by the Chief Justice of Pakistan (CJP), which should reaffirm the constitutional fundamentals.

"It is a measure of our times that an order of an additional sessions judge is more compelling and carries higher sanctity than the orders of the CJP reaffirming the constitutional fundamentals."

‘Controlling democracy’

Usama Khawar, a lawyer and professor at LUMS Law School, believed it was politically not right to focus on specific legal technicalities.

The correct way, he argued, of examining these decisions was the political lens. “If one insists on looking at these issues from legal lenses it would be at best incomplete and at worst dishonest analysis. These cases are about politics and controlling democracy.”

Law is just an excuse to cut to size insubordinate politicians, he added.

Supreme Court advocate Hafiz Ahsaan Ahmad Khokhar, while commenting on the judgement, said it was customary while defending the state's case in the criminal justice system, to simultaneously address the merits of the case in the trial court while incorporating legal and technical objections including maintainability and jurisdiction.

According to the advocate, it is essential to present all arguments before the trial court, especially when the appellate high court or Supreme Court has not halted the trial proceedings and has issued instructions to do so. However, in this particular case, this crucial approach was absent.

As a result, he regretted, the judgment was delivered without adhering to the high court's directions on maintainability, which should have mandated the accused to present their final arguments after making a statement under section 342 of the Criminal Procedure Code (CRPC).

‘Blatant violation of IHC’s order’

Meanwhile, in a statement, Supreme Court Bar Association (SCBA) SCBA President Abid S Zuberi and Secretary Muqtedir Akhtar Shabbir expressed serious reservations in relation to the legality of the judgment as it was a “blatant violation” of the Islamabad High Court’s August 4, 2023 order.

They said it was truly unfortunate that the court decided the case in absolute haste and without affording the accused a fair opportunity of hearing and in the absence of the counsel for the accused which is in blatant violation of the accused’s fundamental rights as enshrined under Articles 4, 9, 10, 10A and 25 of the Constitution.

The statement mentioned that the IHC, through its Aug 4 order, had remanded the issue of maintainability back to the ADSJ directing him to decide the issue of maintainability afresh.

“However, the learned judge, instead of deciding the matter afresh, dismissed the application in haste and without any application of independent mind in reliance of its own earlier orders dated 05.05.2023 and 08.07.2023 which had been remanded to be decided afresh, vide the Honourable Islamabad High Court’s order dated 04.08.2023.”

The SCBA lamented that the learned judge proceeded in the absence of the counsel for the accused and imposed the maximum penalty under the law against the accused. “That such a hasty decision is against all settled principles of fairness, natural justice and due process of law and the timing of such a decision appears to be aimed at excluding political leaders from participating in upcoming elections.”

“The historical trend of disqualification and ban of popular political leaders by the judiciary is against the principles of democracy and fair trial as enshrined under the constitution,” the statement asserted.

“It is pertinent to remember that the judiciary is the guardian of the constitution and the fundamental rights enshrined therein; therefore, such judgments will only lower the people’s faith in the judiciary to uphold justice,” it added.