Pakistan dispatch: stay of ex-PM Khan’s expected jail trial tests judiciary’s dedication to public justice and the rule of law Dispatches
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Pakistan dispatch: stay of ex-PM Khan’s expected jail trial tests judiciary’s dedication to public justice and the rule of law

Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Abu Bakar Khan is a law student at the University Law College, University of the Punjab. He files this dispatch from Lahore. 

Last week on November 12, the Islamabad High Court issued a stay order that put a halt to the in-prison trial of the 71-year-old former Prime Minister of Pakistan, Imran Khan, in a cipher case. The court is seeking details about the decision to conduct the trial in the high-security Adiala prison in Rawalpindi, where the ex-PM is currently held on judicial remand.

The division bench of the IHC issued these orders following the ex-premier’s intra-court appeal against a single-member bench’s approval of Imran’s jail trial. The Attorney General, representing the state, informed the bench that the federal cabinet had sanctioned Imran’s jail trial, promising to provide a copy of the relevant notification. Justice Aurangzeb, however, expressed the court’s intent to scrutinize the notification, questioning the extraordinary circumstances that led to the trial’s current manner and stating, “We want to know the actual events; you have to inform us.” The court clarified that allowing a few family members to attend the hearing did not make it an open court hearing.

This development occurred a day after the caretaker government approved the jail trial of Khan in a case based on an alleged violation of the Official Secrets Act. The charges stem from their handling of a secret diplomatic cable by the Pakistan embassy in Washington in March 2022. Khan was booked by the Federal Investigation Agency (FIA) in August, and the interim Cabinet green-lit the summary for the jail trial due to security concerns.

The said cipher, a secret diplomatic cable, contained an account of a meeting between US State Department officials, including Assistant Secretary of State for the Bureau of South and Central Asian Affairs Donald Lu, and Pakistani envoy Asad Majeed Khan last year. Khan, who served as Prime Minister from August 2018 to April 2022, is accused of misusing the cipher’s contents to build a narrative that his government was ousted due to a US conspiracy, a charge denied by Washington. His ousting through a vote of no-confidence in April 2022 has led to over 150 cases being registered against Khan.

In light of these circumstances, it becomes essential to address the question of whether the jail trial amounts to a fair trial or what the legality of this jail trial is.

As far as the Constitution of Pakistan 1973 is concerned, it explicitly guarantees the right to a fair trial in Article 10-A by stating, “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”. Former Lord Chief Justice of England and Wales, Tom Bingham, in his book “The Rule of Law”, while explaining the rule of fair trial cited a House of Lords’s case “Regina v. Horseferry Road Magistrates Court” of 1994, where it was held that a person charged with committing a criminal offense should receive a fair trial and that if he cannot be tried fairly for that offense, he should not be tried for it at all. Tom Bingham wrote that the rule of a fair trial, an important aspect of the rule of law, demanded that the trial should largely, if not wholly, be held and judgment given in public.

The Supreme Court of Pakistan, in Shahida Zaheer Abbasi v President of Pakistan (PLD 1996 SC 632), stated that open trial inspires public confidence in the judicial process while in camera proceedings give rise to suspicions and misgivings in the mind of the common man. It was also held by the Supreme Court in National Accountability Bureau v Hudaibiya Paper Mills (PLD 2018 SC 296) that justice must not only be done but be seen to be done. Public trial secures the impartial administration of justice. The SC further went on to say that using cherished words like interest of justice, fair play and transparency of justice is also a novel tool to deprive the accused of an open trial. The US Supreme Court in Estes v Texas (1965) held that the acceptance of this right was based on the public’s distrust of secret inquisitions and trials, which had become instruments of suppression that completely disregarded an accused’s right to a fair trial. Thus, this guarantee to a public trial has always been recognized as a protection against the use of our courts as an outlet for despotic government. The right to a public trial was recognized in nearly every state constitution. Furthermore, it was held in Davis v United States (8th Cir. 1917) that a public trial is broadly defined as a trial at which the public is free to attend. In People v Byrnes (1948), it was held that public trial means that it is not restricted to any particular class of the community but is freely open to all. So, the trial of the 71-year-old former Prime Minister inside the Adiala Jail is questionable, and it is now up to the court to settle this issue of open trial in Pakistani jurisprudence for the future.

As the proceedings unfold before the court, all eyes are on the judicial system to determine the landscape of fair trials in Pakistan going forward. The ongoing legal scrutiny, particularly the unique setting of the trial within the high-security Adiala prison, underscores the imperative for transparency and the preservation of principles of open justice. The High Court now stands at a critical juncture, prompting a profound reflection on the trajectory of open trials within the nation’s legal framework.