Towards open justice

Jeremy Bentham, eminent English philosopher, jurist and father of modern utilitarianism propounded the idea of open courts as follows:

“In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity”.

Likewise, Lord Diplock in AG vs Leveller remarked that open courts act as a bulwark against judicial arbitrariness, vagary and eccentricity. Similarly, Hegel in ‘Philosophy of Right’ averred that judicial proceedings must be public as the object of the court is justice, which is a universal belonging to all.

Open courts are powerful instruments of open justice. Open justice is a well-established principle of common law which rests on a high pedestal in liberal democracies. It functions as an effective check upon judicial conduct and serves as a potent tool for bolstering the confidence of the public in the objectivity, impartiality and fairness of the administration of justice.

The modern legal world has seen a fascinating extension of the principle of open justice – live broadcasting of Supreme Court proceedings carrying an element of public interest. Unquestionably, this spectacular novelty has robustly buttressed the principle of open justice by virtually expanding the court rooms beyond the previous four physical walls.

In the United Kingdom, recording of court proceedings used to be an offence under the Criminal Justice Act, 1925. Nonetheless, the law evolved and the Constitutional Reforms Act, 2005 permitted the media to broadcast Supreme Court proceedings. In Brazil, since 2002 the Supreme Court is allowing live broadcast of its proceedings, through its channel, TV Justiça. In NDPP v Media 2017, the Supreme Court of South Africa held that in certain cases the court should not limit broadcast of its proceedings and so allowed the same.

In 2018, the Indian Supreme Court in the Tripathi Case held that live broadcast is indispensable for upholding the legitimacy and efficacy of the judicial system, and allowed a petition seeking a declaration that Supreme Court case proceedings that have an impact on the public at large should be broadcasted. Moreover, Australia, China, Germany, Israel, New Zealand and Scotland have also granted permissions to media to broadcast Supreme Court proceedings.

Live broadcasting of court proceedings is still an alien concept in Pakistan. In fact, vide his order, the registrar of the Supreme Court has placed an absolute prohibition on any type of photography, video and audio recordings in courtrooms. In view of developments in other jurisdictions, it is now perhaps time that live broadcasting of proceedings in Supreme Court be permitted, particularly those arising out of proceedings under Article 184(3) of the constitution – that is, matters of public importance relating to enforcement of fundamental rights.

Live streaming of proceedings under Article 184(3) of the constitution is indispensable for realizing the fundamental rights guaranteed by Articles 9 and 19A of the constitution. Facilitating citizens to comprehend the reasoning in cases affecting their rights and availability of information relating to the proceedings of public importance is a sine qua non for the effective manifestation of the citizen’s right to access justice, a fundamental right to life flowing from Article 9. Moreover, live broadcast of proceedings affecting people’s rights, both at the individual and the collective levels, will underpin the right to information guaranteed by Article 19A.

It is settled view that access to information is a justiciable right of the people rather than being largesse bestowed by the state at its caprice. Article 9 and 19A are only subject to reasonable restrictions imposed by law. Even otherwise, neither has any constraint been imposed by law prohibiting live broadcasting nor can any such law imposing blanket prohibition stand the test of reasonableness.

Besides, there are multiple reasons why live broadcasting can be advantageous. First, it will remove physical obstacles and empower viewers to have virtual access to courtroom proceedings. Second, it will effectuate the public’s right to know about court proceedings. Third, it will reduce the public’s dependence on second-hand descriptions and enable them to form educated opinion about court judgements and court functioning.

Fourth, it will constitute a rich source for aspiring advocates to study the relationship between the bar and the bench, legal advocacy, interpretation of the law and oratory skills. That way, the temple of justice will be transformed into a school of the first order. Finally, it will also increase the reach of the court as it can extend its presence to every part of Pakistan.

Indubitably, the principle of open justice is an integral part of our legal canon; the Supreme Court has reiterated this principle numerous times in its judgments. Although the apex court is open to the public, in practice many interested persons are unable to witness important hearings on account of constraints of time, resources, or the ability to travel long distances. It’s good to see Justice Khosa’s tilt towards the use of technology in judicial proceedings, and the introduction of the e-court system in the Supreme Court is great step towards judicial reforms.

E-courts coupled with the live broadcast of apex court proceedings with respect to matters of public importance have the potential to translate into tangible and intangible benefits. Such unprecedented interplay between law and technology will ensure transparency, good governance and accountability in the administration of justice, and act as a catalyst in realizing Bentham’s dream of open justice.

The writer is a Lahore-based advocate of the high court.