The right to a fair trial is a norm of international human rights law designed to protect the right to life and liberty of the person. There is a perception that the judgement in the Junaid Hafeez case ignores the Supreme Court ruling in the Asia Bibi case and the principles of a fair trial.
Junaid Hafeez was alleged to post blasphemous comments on social media and has been sentenced to death by a district and sessions court despite Pakistan’s Supreme Court guidelines regarding proving blasphemy charge in the Asia Bibi case, in which the SC has set a precedent that if blasphemy charge is not proved beyond a reasonable doubt, lower courts must dismiss the charge. In the Asia Bibi case, the SC cautioned lower courts from awarding death sentence in blasphemy cases based on false or weak evidence.
Article 10 of the Universal Declaration of Human Rights, which represents customary international law, provides that, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and any criminal charge against him”. Article 14 of the International Covenant on Civil and Political Rights 1966 (ICCPR) states that “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. Pakistan ratified ICCPR in 2008 and added Article 10-A to its constitution in 2010 through the 18th amendment. Article 10-A provides that “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”.
A fair trial requires fairness of proceedings at a pre-trial and a trial stage: The pre-trial rights include the right to legal counsel, the right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention, and the right to humane conditions during pre-trial detention. The rights that are to be provided during a trial include equal access to and equality before the courts, the right to a fair hearing, the right to a competent, independent and impartial tribunal, the right to adequate time and facilities for the preparation of a defence, the right to a trial without undue delay, and the right to defend oneself through legal counsel.
UN Human Rights experts have termed the verdict against Junaid Hafeez ‘a travesty of justice’ as it appears to violate the free trial criteria set out in the ICCPR and the fundamental rights provided under Pakistan’s constitution. Mr Junaid Hafeez was held in solitary confinement for six years; his trial was delayed unreasonably; his first lawyer, Rashid Rehman, was killed; and seven judges were transferred during the trial due to environment of fear. These circumstances suggest the denial of the right to a fair trial.
A brief historical account of the blasphemy law may be discussed to contextualize the Junaid Hafeez case. The British Government promulgated blasphemy law in the sub-continent as a result of Muslims protest against a publisher, Rajpal, who made derogatory remarks against the Prophet Muhammad (PBUH). As there was no law preventing insult to religious feelings of Muslims, Rajpal was not convicted. The Muslims then demanded a law criminalizing blasphemous conduct and ban on blasphemous publications. The British Government agreed to insert section 295-A (deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs) in the Indian Penal Code 1860. The same law was inherited by Pakistan in 1947. In 1986, General Zia-ul-Haq made drastic changes in the law and added Section 295-C in the Pakistan Penal Code 1860 (PPC). Under section 295-C of the PPC, a blasphemous act targeting the Prophet (PBUH) attracts both the punishment of death and fine.
Critics of Section 295-C argue that this law mostly targets the minorities and is misused for personal vendetta. The respect and love for the Prophet Muhammad (PBUH) are integral to the belief of the Muslims. However, as the SC noted in the Asia Bibi case that mixing truth with falsehood in the name of the Prophet (PBUH) is also not short of being blasphemous. The Asia Bibi case demonstrates that securing conviction even on false or fabricated evidence is not unlikely in our criminal justice system.
In a nutshell, the Junaid Hafeez case should be decided by the appellate courts in light of the norms of international human rights law. The superior courts should also provide guidelines to lower courts for conducting a fair trial. The legislature should provide punishment for those who file false cases or lie before the courts. No one should be denied a fair trial. At the same time, if a charge of blasphemy is proved beyond doubt, the offender should be punished under the law as no one should be allowed to injure the religious feelings of the Muslims.