Fair Trial as a Human Right, January 2009

Fair Trial as a Human Right

This is the outline of the lecture that was delivered on the 23rd of January,2009, at the University of Saurastra, Gujarat, India. In this lecture before the LL.M. class, Jay Chauhan reviewed the history of the common law trial. Jay Chauhan is a Deputy Judge for 18 years and a lawyer for 38 years in Richmond Hill, Ontario, Canada. He has graduated in Economics from the London School of Economics and Development Economics at University of Berlin. He is also called to the Bar in Ontario, England and India.

The beginnings

The trial process used in India and Canada ( except for Quebec) originated in England. The English brought the justice system in these countries. In India English system of justice gradually replaced the autocratic rule of the Muslim Emperors, and the common law system was superimposed on the existing Hindu and Muslim law.

The principles guiding the English law came to be known as common law. They not only encompass the substantive principles of law, such as law of contract, tort and Criminal law but also rules of evidence including hear say admissibility rules. These procedural rules enable the best available objective evidence to be used to reach a conclusion on a dispute resolution between citizens and society.

United Kingdom governed more than 60 countries during the colonial period predominantly from 18th century until about nineteen sixties when most of the colonies became independent countries but retained the principles of democracy. The fundamental principle of democracy is the right to vote for each citizen and to have a fair trial. Many of these countries, including India and Canada continue to be part of the commonwealth where these common values of democracy and the process of trial continue to be essential parts of governance in these societies. In each of these countries there are some differences in the way these principles are implemented.

The key point of this lecture is to illustrate the fact that whilst right to vote and elect the government of the country has been accepted as fundamental to democracy, the right to fair trial has yet not been fully accepted to the same degree as fundamental to the rights of the citizens. The right to elect the members of parliament enables an elected government to govern in the interests of the people through the legislation passed by the parliament. These enacted laws still need to be administered in specific situations in society through a process of trial which must be fair and should be accepted in democratic societies as fundamental human right of each citizen when facing the court process. True democracy requires in my opinion not only a freely elected parliament but also independent and able judiciary and tribunals which administer these laws. It is the application and administration of the laws and legal system which touches the average citizen on a daily basis.

Most countries in the last 50 years have accepted right to vote as a basic right. Considerable progress has been made in accepting this right as a fundamental human right. More needs to be done in  improving the integrity of the process of trial and making it more accessible, fair and equitable and free of any bias.

Improving institutions

Developing countries like India need to improve the level of education and understanding and creating a culture of fairness and integrity. Industrialized countries like Canada which have excellent judicial institutions, but there is potential for improvement. In Canada the challenge is getting the aboriginal peoples and new visible minorities to participate in the judicial process and the decision making process. Canadian court process has become technical and requires trained lawyers. The middle class cannot afford a lawyer and more litigants are appearing in person.

The effort to improve the institutions is a continuing process in all societies and requires constant vigilance and change. Societies need to create a culture where improvement and access to courts and dispute resolution institutions get better political attention and adequate resources. Legal and judicial institutions are fundamental to the wellbeing of the individuals in society and fairness in their governance should be accepted as a basic human right.

In developing countries like India the litigants, specially in the villages, to not often know their basic procedural or substantive rights. Public education is required to improve access to the courts and legal remedies.

Common Law Trial Process

The role of the judge in a common law trial is hear the case and make determination as a neutral party weighing the evidence. It is not inquisitorial requiring the judge to initiate inquiry of his own. The Judge charged with the duty to deliver justice between the disputing parties in society in civil law. In a criminal offence he must adjudicate on the issue as between the society and the accused.

In a civil action the Plaintiff commences an action for a grievance or a cause of action by way of a Statement of Claim outlining his position briefly from the factual point of view to show the cause of action and outline the damages. Sufficient information of the facts is provided to substantiate the claim. The defendant is required to respond to this claim outlining his position. Documents are exchanged between the parties to show evidence that will support the action. The rules in different jurisdictions are somewhat different. Procedural steps are designed to require each party to disclose their position to the other. An examination may be conducted to find position of each party. These procedural steps culminate in a trial where the evidence is heard and decision made in the form of a binding judgment.

Case law and precedent and appeal

In the common law system case law and precedents are important to provide guidelines in cases before the court. It is the function of the judge to render a decision and make the decision based on his interpretation of the law. Where a litigant disagrees with the decision of the court he must have a right to appeal in appropriate cases. The right of appeal permits important issues to be determined and guided by the superior court and this guidance is passed on to the lower courts which must abide by the decisions of the superior courts.

Creation of such jurisprudence in each society creates a consistent body of law which helps to provide fairness and predictability and consistency.

Evidence and Cross Examination

In the process of the trial itself, the judge permits the plaintiff to present his evidence through witnesses, each of whom in turn, under oath, present the facts as they remember them. These facts are then narrated from the observations that are made by the witnesses who observed the events. In more modern period, documentation plays a greater role in providing evidence. Scientific developments like DNA have improved the quality of objective evidence in criminal trials.

The defendants in common law trial are provided the right to cross-examination. This permits the opposing party to view the same set of facts from a different point of view. When this process is completed, the parties make submissions of the law and the summary of the evidence as each party perceives the evidence to an unbiased judge. Understanding what kind of biases can exist in the human process of judgment making to make the trial fair, is an ongoing challenge of the society and legal scholars.

Criminal Law

In criminal law the role of the judge is to balance the rights of the accused person against the power of the state. To ensure that the accused has a fair trial and that an innocent citizen is not found guilty, the evidentiary principle applied is proof beyond reasonable doubt. This burden of proof is higher than that applied in a civil trial.

A fair trial would require a judge who is neutral and whose position and tenure and personal security are not challenged if he made the decision which is not unacceptable to the state since it is the role of the state to prosecute the accused. This neutrality and security of the tenure of the judge is not found in many developing countries.

In criminal law in many countries it becomes more important to ensure that the fair trial as a human right becomes an accepted principle of justice and accepted as a fundamental right of the citizen. In many countries where the ethnic conflicts are rampant, a judge who is not from the same ethic group can be seen as conducting a biased trial. To support the judges in jeopardy in such countries, developed countries should consider amending immigration rules to provide for their security and give them asylum if required.

In advanced western countries which are becoming very multicultural, like Canada, England, France and the United States, the participation of all segments of society in appointment of judges is crucial. When Judges see brother judges from different backgrounds it helps to change the perception of the litigants from those groups. Citizens should see that all segments of society are participating in their role of governance of the society.

Resources and aid

Socio-economic conditions of each society plays a role in determining the resources that the society allocates for its legal and judicial institutions which affects the quality of judgments and decisions and in turn the quality of life and wellness. Developed countries have more resources and more foreign aid given should be directed to improving the legal institutions. The benefits of such aid is not always directly visible but has considerable impact on the development of the society.

Stable legal and judicial institutions contribute a lot to the economic development as was evident from Hong Kong’s spectacular economic growth which owes a lot to the British and common law model of legal administration.

Role of Judge in Constitution

Judges must be impartial in decision making, not only in respect of the litigants in front of the court, but also in respect of the government and the executive and legislative branches of the government.

Independence of Judiciary is required to ensure the integrity and objectivity in interpreting the statutory law enacted by the parliament. Judges in Common Law jurisdictions are sometimes called upon to adjudicate the validity of the statute itself. In Canada, India and United States, which share the common law tradition, court can strike out the law if it does not conform to the fundamental requirements of the Bill of Rights. If the statute offends the fundamental rights of liberty, freedom of speech and religion and other basic human rights set out in the constitution, the Court can override the statute. Judges therefore need complete impartiality and independence from the Executive branch that appoints them. The process of appointment should therefore be impartial.

In this regard the American courts are much further ahead in becoming the final arbiter of law. The Indian and the Canadian supreme courts are also taking a leadership role in assuming that role but less openly. This role of the court enhances the principles of democracy because it minimizes the impact of the executive and political power in the partisan politics. In a political party system leaves open the possibility of the imposition of the decisions of a political party on the whole society. It is the function of the courts to ensure that the legislative and executive branches of the government do not impinge on civil liberties.

In some countries the appointment of the judges, and their impartiality and security is not guaranteed. This insecurity does not permit the judge to make independent and impartial judgment. In a civil and democratic society, the executive or the military should never be permitted to override the judiciary. We have to work towards ensuring that all countries respect the value of independence and impartiality and security of the judges.

Fair trial as a fundamental human right in society also requires entrenchment of right to have an independent and impartial judiciary. The highest court of the land acts not only as a final arbiter of law of the land but also ensures that the administration of justice at lower level is preserved and enhanced. Supreme Court in all countries acts as a guardian of the constitution.


As societies become more advanced they become legally more complex because of the increasing need to deal with technological an economic complexity of the society. The demand for enhancement of human rights adds to this complexity. Human rights laws and tribunals add another layer of administration. In an economically changing environment, it takes increasingly greater resources of the society to match the evolving needs.

Fair Trial as a fundamental right- Conclusion

Considerable progress has been made around the world in the recognition of the principles of democracy in which the right of each citizen to vote is fundamental. In the last 50 years many of the former colonies have become free and implemented the right to free vote to elect the government of the country.

During this period we have come to recognize that the freedom to elect does not necessarily guarantee the fundamental and basic rights of the citizens, including the right to free speech, freedom of movement and religion and equality before the law.

The categories of basic rights continue to expand. In the recent years we have added to these basic rights, the right of those with different sexual orientation to be treated as equals. Rights of women and the disabled and disadvantaged have been recognized. The right to have fair trial should be accepted as fundamental human right.

The definition of what is ‘fair’ will continue to change with time and economic resources available to implement these rights. Fair trial includes the obligation of the state to provide independent judiciary, right of all qualified citizens to participate as judges, having rules of evidence that permit true facts to be brought out, absence of corruption in decision making, right of appeal, absence of racial and religious prejudice, right to be tried by civilian courts rather than military tribuals etc. The developed and industrial countries are setting an example ini this regards and we have seen the growth of Human Rights Tribunals in many countries. These role models are likely to be followed by many developing countries, which must find the resources and change of cultural norms to accept and implement this principle. Those of us who are in the legal arena have a duty to promote this cause. In achieving fairness no country can sit idle assuming that their system is perfect as standards of adjudication are constantly improving in all developed and developing countries.