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Case in Point: A fair trial


August 15, 2017

The recent judgment of the Supreme Court disqualifying the elected prime minister of the country in exercise of its original constitutional jurisdiction – on the ground that he is not ‘honest’ and ‘ameen’ under Article 62 of the constitution – has caused ripples into the already turbulent waters of our fledgling democracy.

With utmost respect to the honourable judges gracing the larger bench of the apex court, the judgment and the notes of the honourable judges attached to it are replete with lacunae raising several questions of income tax law, principles of accounting and the law of evidence. However, what is rather disturbing is the departure from some of the very fundamental principles of natural justice that form the very essence of our constitution.

The Panama judgment, for all practical purposes, may turn out to be the Sword of Damocles dangling over the heads of the people’s representatives in parliament. In this article, I have attempted to gaze into the Panama judgment from the lens of our constitution purely for the purpose of academic discourse.

First, the assumption of the role of the court of first instance by the Honourable Supreme Court in issuing a declaration to the effect that Mian Muhammad Nawaz Sharif is not qualified to remain a member of parliament (and hence disqualified to hold the office of the prime minister) in terms of Article 62 (f) of the constitution, is in itself repugnant to the cardinal principles of a fair trial.

After the 18th Amendment, Article 10-A of the constitution has bestowed the right to a fair trial upon every person. Throughout common law as well as in civil law jurisdictions around the world, jurists unanimously agree that in order to have a fair trial it must include at least one right to appeal to a higher judicial forum. If the highest appellate court of the land itself wears the robes of a trial court, where would the accused file his appeal?

The argument that is adduced to counter this narrative is that the respondents do have the right to file a review against the judgment, and hence the prerequisites of a fair trial are adequately met. This is simply preposterous. ‘Appeal’ and ‘review’ are two different legal remedies that are poles apart from each other. Every judge, no matter how sagacious and learned in law he or she might be, being a human being, is prone to err in interpreting the law or misreading the evidence in right perspective. It for this very reason that the mechanism of an appeal has been evolved whereby another judge looks at the evidence and the impugned judgment with a fresh judicial mind and analyses the entire case objectively with a different set of eyes, thereby minimising the chances of miscarriage of justice.

In a ‘review’, on the contrary, the same judges look at their own judgment rather than some other judge revisiting the whole case threadbare. Besides, the scope of the review is limited to such an extent that could hardly enable the court to alter or overturn its own judgment. No wonder, barely one percent of the total review petitions proffered in the Supreme Court meet any success, and that too partially in most cases.

Secondly, the assumption of a supervisory role by a judge of the Supreme Court over the NAB investigations against Nawaz Sharif and his family members does not augur well with the notions of a fair trial. In Pakistan, we follow the adversarial mode of justice whereby a judge remains an impartial umpire having no role in investigation. Rather he or she weighs the credibility of the evidence adduced by both parties in juxtaposition to each other and decides on the basis of ‘balance of probabilities’ in civil matters and ‘beyond reasonable doubt’ in criminal cases. If a judge, and that too of the highest appellate court of the land, himself assumes the role of chief investigator, how would the trial court – which is at the bottom of the judicial hierarchy – muster courage to evaluate evidence collected under the direct supervision of the apex court and dispense justice independently without being influenced by these extraneous factors?

Moreover, the investigation officer is always the key prosecution witness in every criminal case, the credibility of whose testimony plays a pivotal role in the outcome of the trial. What if, in the course of the trial, the defence counsel of any of the accused before the Accountability Court demand to cross-examine the chief investigation officer, who in this case happens to be the honourable judge of the Supreme Court supervising the NAB investigations? Would the Learned Accountability Court then issue the summons for such testimony? If the past is of any guide, we have witnessed a mockery of justice via suo-motu instigated investigations carried out right under the nose of the then chief justice. The recent judgment of the Islamabad High Court acquitting all the accused in the famous Hajj Corruption Case is a glaring testimony to the uneven playing field provided to an accused when none other than the highest appellate court of the land assumes the role of an investigator.

While evaluating the Honourable Supreme Court’s judgment on the touchstone of the constitution, one is not at all attempting to undermine the role of our judiciary to check rampant corruption in the country. The only concern is that the right to a fair trial and the principles of natural justice should not be sacrificed at the altar of the judiciary’s lofty endeavours to purge our politics of rogue elements.

The writer is an advocate of the Supreme Court.

Email: [email protected]

Twitter: @BarristerMShah

This article is part of a new series aimedat encouraging informed debate on the Panama case. Respected members of the legal community are invited to join in with their views.