INTRODUCTION
A fair trial ensures impartial judgment, legal rights protection, evidence presentation, and a competent defense, fostering justice and due process.
The constitution 1973 of Pakistan has guaranteed the fundamental rights in part II, Chapter 1. The Constitution has given the right to be protected by law to every citizen and has imposed upon them the loyalty to state and obedience to the law.
RELEVANT PROVISIONS
Article 10 of the Constitution of Pakistan 1973 is related to the safeguards of persons to arrest and detention.
SAFEGUARDS AS TO ARREST AND DETENTION
The following are the safeguards to arrest and detention of a person.
ARTICLE 10(1):
No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice.
ARTICLE 10(2):
Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate.
ARTICLE 10(4):
No Preventive detention shall only be made except;
to deal with persons acting in a manner prejudicial to the integrity, security, or defense of Pakistan, or any part of Pakistan or external affairs of Pakistan, public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding three months, unless the appropriate review board nas, after affording him an opportunity of being heard in person.
The appropriate Review Board” means in the case of a person detained under a Federal law a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court.
ARTICLE 10 (5):
When any person in dit net in pursuance of the order shall, under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention communicate and represent.
ARTICLE 10(6):
The authority making the order shall furnish, to the appropriate review board, a document relevant to the case unless a certificate, signed by a secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
ARTICLE 10(7):
Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case.
ARTICLE 10(8):
The appropriate review board shall determine the place of detention of the person detained and for a reasonable subsistence allowance for his family.
ARTICLE 10(9):
Nothing in this Article shall apply to any person who for the time being is an alien enemy.
Also Read: Fundamental Rights in the Constitution of Pakistan, 1973
EXPLANATION OF ARTICLE 10
1. SAFEGUARD AGAINST ARBITRARY ARREST
A person arrested under ordinary law has been given safeguards as follows:
- He will be informed of the grounds for his arrest as soon as possible.
- He will be allowed to consult and be defended by a legal practitioner.
- He will be produced before a Magistrate within 24 hours of his arrest excluding the time necessary for the journey if any, from the place of arrest to the court of the Magistrate.
- He will not be detained longer without the sanction of the Magistrate.
2. ARREST
Before a person is said to be arrested within the meaning of sub-paragraphs (1) and (2) of Article 10, two tests are to be satisfied.
- The arrest must to by the executive and not by order of a competent court or under a legal warrant.
- There must be an accusation of a certain offense or some prejudicial activity on the part of the person. arrested.
3. RIGHT TO COUNSEL
A person arrested has a constitutional right to the services of a counsel. Therefore, the provisions of the law which deny such a person the night to be defended by a legal practitioner are void.
4. NOT TO ENGAGE COUNSEL at STATE EXPENSES
Under the Constitution, an accused person has a right to be defended by counsel of his own choice but not necessarily at State expense. He can engage any counsel he likes, but when he is not able to engage one, then the choice is no longer available to him. He has to be satisfied with the counsel assigned by the Court.
In such cases, the counsel so engaged is not required to file a vakalathnama. If the condemned prisoner is not satisfied with the counsel, he can, of course, object to him.
5. PRODUCTION BEFORE A MAGISTRATE
It is an established practice that the person arrested should be produced before the nearest Magistrate within the prescribed time. Failure to comply with this requirement would make further detention illegal. The rule is applicable whether the arrest is with or without a magisterial warrant.
The Magistrate cannot go to the place where the detenu is being kept and remand him to custody. If he does so, he contravenes the provisions of this clause.
6. COMMUNICATION OF GROUNDS
The object of communication of the grounds on which a person is arrested or detained is bringing home to detenu effective knowledge of facts of his detention or the grounds of his arrest so that he may be in a position to make an application to the competent Court for bail or to move the High Court for a writ of habeas corpus.
The intimation also enables the person concerned to prepare his defense in time for the purpose of his trial. Mere reference to the section of the law under which he has been arrested will not be treated as sufficient compliance with the requirement.
7. GROUNDS SUPPLIED MUST BE SUFFICIENT
The person deprived of his liberty may have adequate information about the allegations against him and give explanations for securing his release Particulars supplied must be of a such nature as would enable him to make a representation-as a result of which he may secure his release.
Where the grounds of detention were found to be vague and they gave no clear indication as to the charges made against the detenu to enable him to make a representation that the Constitution guarantees him, the detention was held to be illegal.
8. SATISFACTION OF THE COURT
Although High Court cannot claim in the exercise of wnt jurisdiction to usurp the functions of the authority in which power has been vested nor to substitute its own decision for the decision of that Authonty nor can the Court insist on being satisfied that there was material upon which it itself would have taken the same action.
9. JUSTIFICATION FOR DETENTION
The reasonableness of the grounds of detention can be examined while exercising Constitutional jurisdiction which could not have been done in a vacuum and the material evidence which could not be produced in Court should have been made available in Chamber.
10. JUDICIAL REVIEW
The judicial review is the basic feature of the Constitution and the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution Power of judicial review is a cardinal principle of the Constitution.
11. FUNCTIONS OF THE BOARD
The function of the Board is to consider whether there is sufficient cause for detention at all of the detenu.
RIGHT TO FAIR TRIAL: ARTICLE 10A:
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.
DEFINITION OF FAIR TRIAL
A trial by an impartial and disinterested tribunal in accordance with regular procedure especially a criminal that in which the defendant’s constitutional and legal rights are respected”
EXPLANATION
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 instruments define the right to a fair trial in broadly the same terms.
RIGHTS IN FAIR TRIAL
The right to a 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 right to a public hearing
- The right to be heard within a reasonable time.
- The right to counsel.
Legally the right to a fair trial was regarded as more important in criminal proceedings because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings.
In Criminal Proceedings,
The right to a fair trial includes a minimum of the following fair trial rights.
- The right to be notified of charges in a timely manner
- The right to adequate time and means for the preparation of a defense
- The right of the accused to defend him or herself
- The right to counsel chosen by the accused and the right to communicate privately with the counsel.
- The right not to incriminate oneself (Article 13)
- The right to appeal at first instance to a higher Court and the prohibition on double jeopardy (Article 13)
The right to a fair trial applies not only to judicial proceedings but also to administrative proceedings. If an individual’s 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 central constitutional protection. It nevertheless remains unclear what precisely should count as a fair trial and who should decide verdicts.
CONCLUSION
It is concluded that safeguards as to the arrest and detention of any person are guaranteed by the constitution, these are available even against the state. These are justifiable and if any law or order is inconsistent with them, it can be declared null and void by High Court or Supreme Court.
FAQs
Elaborate on the rights (safeguard) of the accused person against illegal arrest and detention (Article 10) including the right to a fair trial (Article 10-A) of the 1973 Constitution.
(2015-A)
Discuss Article 10 of the Constitution.
(2012-S)
What safeguards relating to arrest and detention have been provided in the Constitution?
