justice.39

59. Another fundamental aspect of the right to a fair trial that is particularly relevant in proceedings involving blasphemy allegations, is the right to trial before an impartial tribunal or judge.

60. The impartiality of a judge can be defined as the absence of bias, animosity or sympathy towards either of the parties. Under international standards, courts must be impartial, and also appear to be impartial. Thus, judges have a duty to step down from cases in which there are sufficient grounds to question their impartiality.

61. The vague and overbroad wording of section 295-C of the Pakistan Penal Code, which criminalizes words, representations, imputations, innuendos, or insinuations, which directly or indirectly, defile “the sacred name of the Holy Prophet”, has allowed prejudices, religious leanings and personal predilections of judges to shadow their judgments, calling into question their impartiality. This bias is apparent in the conduct of judges during judgments.40 blasphemy proceedings, and also their

62. These concerns are magnified further by the requirement under Pakistani law that judges presiding over first instance trials in 295-C cases be Muslim. The provision, when coupled with the vagueness of the law, all but invites the types of partiality noted above in the judgments of first instance court, and is inconsistent with the rights to trial before an independent and impartial court.

63. Under Article 14(1) of the ICCPR, holding oral hearings on the merits of a case determining a criminal charge, which the parties and members of the public, including the media, can attend, is the general rule. The Human Rights Committee has clarified that the publicity of hearings ensures transparency, and thus provides an important safeguard for the interest of the individual and of society at large. While Article 14 acknowledges that courts have the power to exclude all or part of the public from the proceedings, this must only be done in exceptional circumstances, specifically for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in justice.41 special circumstances where publicity would be prejudicial to the interests of However, closing part or all of the proceedings, or alternatives measures taken must nonetheless be compatible with the right of the accused to a fair trial in the context of adversarial proceedings.

64. For reasons of security, access to the proceedings that take place in jails is usually only permitted to the accused; prosecution and defense lawyers; and witnesses. Members of the defendants’ family or media are barred access to the proceedings in jail trials. This impedes the right to a public hearing, which generally requires oral hearings of the case, which the parties and members of the public, including the media can attend.

65. These measures are not only incompatible with the right to a public hearing, at times, they also do not work: in one case, for example, individuals hostile to the defendant were allowed access to the proceedings being carried out in jail. The trial court had authorized jail trial after the accused and his lawyer received threats to their lives during proceedings in the Sessions Court. Even during proceedings in jail, however, individuals

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