Consolidate open justice
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.
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