Imran Khan, the former Prime Minister of Pakistan, was sentenced to 3 years imprisonment by a judge, Humayun Dilawar, in the toshakhana case, thus depriving him from contesting elections.
Apart from the other defects in the trial, like denying him the right to present his witnesses, I submit that the verdict suffers from a fundamental defect.
Neither Imran Khan nor his lawyer Khwaja Haris were present during the hearing. In this situation the judge should have appointed a lawyer as amicus curiae to defend Imran Khan, and should not have proceeded to dispose off the case ex parte.
Article 10A of the Constitution of Pakistan states :
” 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 ”.
I submit that in a criminal case a fair trial and due process necessarily includes representation by a lawyer.
Thus, in the decision of the US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932), it was observed :-
“What, then, does a hearing include ? Historically and in practice it has always included the right to the aid of counsel.
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were to refuse to hear a party by counsel, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense “.
Similarly, In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:-
“Lawyers in criminal courts are necessities, not luxuries”
No doubt section 366(3) of Pakistan’s Criminal Procedure Code says that a judgment will not be invalid if given in absence of the party or his lawyer, but this provision is a continuation of the draconian law made during British rule, and it must be deemed to have been superseded and overridden by Article 10A of Pakistan’s Constitution ( quoted above ).
The right to appear through counsel has existed in civilised countries for centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when it is said that the accused should have been provided a counsel appointed by the court it is not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed.
During the freedom struggle against British rule, the civil liberties of the people were trampled upon, and freedom fighters incarcerated for long periods under the dictum `Na vakeel, na daleel, na appeal’ (No lawyer, no hearing, no appeal). Surely we cannot go back to those dark days.
In this connection one may refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, on the introduction of the Rowlatt Bill, 1919 which prohibited counsels to appear for the accused in cases under the Rowlatt Act
” When Government undertakes a repressive policy like prohibiting counsels from defending the accused, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who addresses a public meeting, then becomes a suspect. The possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery.
Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land.”
The judge should therefore have appointed a lawyer to defend Imran Khan as amicus curiae when his own lawyer was absent, and failure to do so totally vitiates his judgment.