Can a person be convicted for corruption in a fair trial? The answer is in the negative. Can anyone be denied a fair trial and due process? The answer is again in the negative. This is the dilemma the state is faced with.
In State of Karnataka v. Jaya Lalitta (2017), Judge Amitava Roy of the Supreme Court of India observed: "In the above alarming backdrop of coeval actuality, judicial adjudication of a charge based on an anti-corruption law motivated by the impelling necessities of time, has to be informed with the desired responsibility and the legislative vision therefor. Any interpretation of the provisions of such law has to be essentially purposive, in furtherance of its mission and not in retrogression thereof. Innovative nuances of evidential inadequacies, processual infirmities and interpretational subtleties, artfully advanced in defence, otherwise intangible and inconsequential, ought to be conscientiously cast aside with moral maturity and singular sensitivity to uphold the statutory sanctity, lest the coveted cause of justice is a causality.
He summed up the backdrop: "A growing impression in contemporary existence seems to acknowledge, the all pervading pestilent presence of corruption almost in every walk of life, as if to rest reconciled to the octopoid stranglehold of this malaise with helpless awe. The common day experiences indeed do introduce one with unfailing regularity, the variegated cancerous concoctions of corruption with fearless impunity gnawing into the frame and fabric of the nation's essentia. Emboldened by the lucrative yields of such malignant materialism, the perpetrators of this malady have tightened their noose on the societal psyche. Individual and collective pursuits with curative interventions at all levels are thus indispensable to deliver the civil order from the asphyxiating snare of this escalating venality".
Pakistan's story is no different. The recent video scandal involving a judge who gave a judgement in corruption case has exposed the weaknesses of the judicial system. It seems that the beneficiaries are unwilling to loosen their stranglehold. They will adopt all means to protect themselves. History has the tendency of repeating itself. In 2001, a judgement of a Division Bench of Lahore High Court was set aside by the Supreme Court on the production of tapes of conversation of a judge. The proceedings were quashed. No denovo trial was held. End of the matter!
The 18th Amendment granted few new fundamental rights in the Constitution. Article 10 A guarantees the rights to fair trial and due process. A fair trial is: the right to be tried on a lawful charge by an independent court/judge on sufficient evidence. While due process as pithily put by Danial Webster in the Trustee of Dartmouth College case is: a law that hears before it condemns, proceeds upon inquiry and renders judgment only after trial". These twin rights are substantially based on Article 6 of the European Convention of Human Rights. Fair trial and due process are so essential that legal proceedings in their absence are a farce. It is indeed a tragedy that no effective legal reforms were made during the last 3 decades. Some small and inconsequential quick fixes were made but degenerating legal and judicial systems needs a complete overhauling. The corrupt has money, connections and access to the best legal minds. They keep permanent legal teams who are rewarded for their services through appointments to high public offices. The state has no resources. It is left with an incompetent lot with little exception.
The Chief Justice of Pakistan has rightly highlighted time and again the malady of false witnesses. But in a society, where crime is rampant, people are afraid to give evidence as the state has failed to give protection to the witnesses and where even the registration of an FIR cannot be got done unless there is safarish or bribe, and where the victim is forced by the state machinery and the mighty culprits into a compromises, and where the victims of acid attacks have no resources to get justice, and where justice system is vulnerable and tragically the state has no resources to provide even basic protections to its citizens, the nation is in a greater trouble than thought of. Where do we go from here?
A new wheel needs not to be invented. All civilized nations, while guaranteeing due process and fair trial, successfully prosecute the most powerful drug barons, corrupt officials, unscrupulous politicians, hardcore criminals and ruthless terrorists. The Supreme Court approved most of the provisions of the NAB Ordinance, 1999 in the Asfandyar Wali's case (2000) including the ones, which purportedly denied the rights to a fair trial and due process. While arrest and detention cannot be made arbitrarily as thereby many rights including the right to defence is denied, the shifting of the burden of proof to the accused in a corruption case could be justified on the ground of public policy. Prosecution must however establish a prima facie case. A public office holder is obligated to account for his conduct, assets and resources. After the state has established a prima facie case, the accused is free to produce all and every piece of evidence to discharge his burden and while he does so, rule of law, due process and fair trial cannot be denied. Hazrat Omar (RA) stopped Abu Bakr (RA), the first caliph, from going to his shop on his first day of caliphate and he readily accounted for his second sheet of clothe when Abu Zar (RA) inquired from him.
A constitutional amendment prohibiting business activity for public officeholders and their immediate family is required. Existing laws provide ample regulation of conduct for people in the service of Pakistan. Strict compliance and enforcement of laws and accountability across the board is needed. Investigation needs to be compliant of the rule of law and due process. The lacunae in investigation, weaknesses in the prosecution's brief and judicial decision lacking the purpose of legislation and desired responsibility cannot be covered up by the denying due process and fair trial. "This country's planted thick with laws - if you cut them down - and you're just the man to do it - you really think you could stand upright in the winds that blow then? Yes, I'd give Devil benefit of law, for my own safety's sake", Robert Bolt, A Man for all seasons.