Con­sol­i­date open jus­tice

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

LAST week un­der this col­umn, I wrote a piece about the le­gal ex­cep­tion, “In Cam­era, my lord”. I de­lib­er­ately re­sisted the temp­ta­tion to write at length about its con­comi­tant gen­eral prin­ci­ple of the com­mon law of “Open Jus­tice”. This prin­ci­ple briefly en­tails the no­tion that court pro­ceed­ings ought to be open to the public, in­clud­ing the con­tents of court files and public view­ing of tri­als.

The above prin­ci­ple and this ex­cep­tion might, to an un­trained eye, be per­ceived to be con­tra­dic­tory which I humbly sub­mit is wrong. If any­thing, the two are com­ple­men­tary to the ad­min­is­tra­tion, in­tegrity and con­fi­dence in the ju­di­cial sys­tem.

Open jus­tice is one of the old­est prin­ci­ples of English law, go­ing back to be­fore Magna Carta, which was ac­ceded to by King John in 1215 af­ter armed re­bel­lion by his barons. How­ever, it is only now at the turn of the cen­tury that the prin­ci­ple has now been cod­i­fied within the rules of court and other rules of court pro­ce­dure. I shall re­turn to this cod­i­fi­ca­tion at a later stage in this col­umn.

In Rex vs Le­gal Aid, Jus­tice Woolf wrote: “The need to be vig­i­lant arises from the nat­u­ral ten­dency for the gen­eral prin­ci­ple to be eroded and for ex­cep­tions to grow by ac­cre­tion as the ex­cep­tions are ap­plied by anal­ogy to ex­ist­ing cases. This is the rea­son it is im­por­tant not to for­get why pro­ceed­ings are re­quired to be sub­jected to the full glare of public hear­ing. It is nec­es­sary be­cause the public na­ture of pro­ceed­ings de­ters in­ap­pro­pri­ate be­hav­iour on the part of the court. It also main­tains the PUBLIC’S CON­FI­DENCE IN THE AD­MIN­IS­TRA­TION OF jus­tice. It en­ables the public to know that jus­tice is be­ing ad­min­is­tered im­par­tially. It can re­sult in ev­i­dence be­com­ing avail­able which would not be­come avail­able if the pro­ceed­ings were con­ducted be­hind closed doors or with one or more of par­ties’ or wit­nesses iden­tity con­cealed. It makes un­in­formed and in­ac­cu­rate com­ment about the pro­ceed­ings less likely. If se­crecy is re­stricted to those sit­u­a­tions where jus­tice would be frus­trated if the cloak of anonymity is not pro­vided, this re­duces the risk of the sanc­tion of con­tempt hav­ing to be in­voked, with the ex­pense and the in­ter­fer­ence with the ad­min­is­tra­tion of jus­tice which this can in­volve”.

In con­trast, the le­gal ex­cep­tion of “In Cam­era”, is a Latin term mean­ing “in cham­bers”. Those who might not have the ben­e­fit of hav­ing read my last col­umn will un­der­stand that this ex­cep­tion refers to a hear­ing or dis­cus­sions with the judge in the pri­vacy of his cham­bers (of­fice rooms) or when spec­ta­tors and the media have been ex­cluded from the court­room. An in cam­era ex­am­i­na­tion may be made of con­fi­den­tial or sen­si­tive in­for­ma­tion to de­ter­mine whether to in­tro­duce it to the public and make it part of the public record.

It fol­lows from the fore­go­ing that the two con­cepts are con­nected by an um­bil­i­cal cord, so to speak, such that in their com­ple­men­tary na­ture to court pro­ceed­ings, in­tegrity and con­fi­dence, they are at times in­ex­orably linked.

As ear­lier al­luded to, Le­sotho has thank­fully and un­less with a few stated ex­cep­tions, cod­i­fied these two prin­ci­ples. They are en­shrined in the Con­sti­tu­tion of Le­sotho, 1993 Sec­tion 12 un­der right to fair trial (9) (10) (a) and (b) wherein it is pro­vided.

“Ex­cept with the agree­ment of all the par­ties thereto, all pro­ceed­ings of ev­ery court and pro­ceed­ings for the de­ter­mi­na­tion of the ex­is­tence or ex­tent of any civil right or obliga- tion be­fore any other ad­ju­di­cat­ing au­thor­ity, in­clud­ing the an­nounce­ment of the de­ci­sion of the court or other au­thor­ity, shall be held in public. (10) Noth­ing in this sub­sec­tion (9) shall pre­vent the court or other ad­ju­di­cat­ing au­thor­ity from ex­clud­ing from the pro­ceed­ings per­sons other than the par­ties thereto and their le­gal rep­re­sen­ta­tives to such ex­tent as the court or other au­thor­ity — (a) may by law be em­pow­ered to do and may con­sider nec­es­sary or ex­pe­di­ent in cir­cum­stances where pub­lic­ity would prej­u­dice the in­ter­ests of jus­tice or in in­ter­locu­tory pro­ceed­ings or in the in­ter­ests of public moral­ity, the wel­fare of per­sons un­der the age of eigh­teen years or the pro­tec­tion of the pri­vate lives of per­sons con­cerned in the pro­ceed­ings or (b) may by law be em­pow­ered or re­quired to do in the public in­ter­ests of de­fence, public safety or public or­der.

In re­la­tion to the pro­ceed­ings of the much­pub­li­cized and un­doubt­edly im­por­tant SADC Com­mis­sion of In­quiry, mem­bers of the gen­eral public have seen the ex­cep­tion of “In Cam­era” and the gen­eral com­mon law prin- ciple of “Open jus­tice” be­ing in­voked ex­pertly at these pro­ceed­ings than at any other pre­vi­ous pro­ceed­ings. How­ever, for pur­poses of this col­umn I will con­fine my­self mostly to the “open jus­tice” prin­ci­ple.

Open jus­tice is a le­gal prin­ci­ple de­scrib­ing le­gal pro­cesses char­ac­terised by open­ness and trans­parency. The term has par­tic­u­lar em­pha­sis in le­gal sys­tems on Bri­tish law, such as the United King­dom, the Com­mon­wealth coun­tries such as South Africa, Canada and Aus­tralia and for­mer Bri­tish colonies such as the United States.

The prin­ci­ple enun­ci­ates guide­lines on how courts can be more trans­par­ent in that the public is al­lowed to see and hear trial as they hap­pen in real time, tele­vis­ing tri­als as they hap­pen, video­tap­ing pro­ceed­ings for later view­ing, pub­lish­ing the con­tent and doc­u­ments of court files, pro­vid­ing tran­scripts of state­ments, mak­ing past de­ci­sions avail­able for re­view in an easy-to-ac­cess for­mat, pub­lish­ing de­ci­sions, case re­port­ing and giv­ing ac­cess to re­porters to court files and par­tic­i­pants so they can re­port what hap­pens. Open jus­tice in­cludes the en­deav­our to make what hap­pens in the court un­der­stand­able to the public (in­ter­pre­ta­tion into the ver­nac­u­lar) and the press.

As can be dis­cerned from the above the un­der­ly­ing ra­tio­nale be­hind open jus­tice is that pro­ceed­ings ought to be con­ducted in the public glare. To­day the con­cept is so widely ac­cepted that there is a gen­eral pre­sump­tion that there should be ju­di­cial open­ness which is re­garded as the gen­eral rule, with se­cret, ob­scured in cam­era pro­ceed­ings now be­ing con­sid­ered as ex­cep­tions that need to be jus­ti­fied.

Con­tin­ued on page 14 . . .

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