LALIT on the need for Open Justice
20.11.2022
LALIT supports the stand made by barrister Sanjay Bhuckory that Supreme Court proceedings be broadcasted, telecasted, webcasted and live streamed in the name of “open justice”. He took this stand in the October 2022 edition of the Mauritius Bar Association publication The Legal Tape in an article entitled “Let the Cameras in”. This is already the case in countries like Australia, Canada, UK, New Zealand and South Africa. He states that the Supreme Court should follow in the footsteps of the Legislature that has for some time now been live streaming and televising Parliament sessions.
His argumentation is clear. We quote from his article: “Our Constitution affirms that all proceedings of every Court shall be held in public. This principle stems from the centuries’ old British tradition of open justice, which provides that court proceedings should be public, ie the doors of the court room should be kept open, the public at large are entitled to be admitted, and the trial is to be public in all respects, with due regards to the size of the court room and other legal considerations. Former UK Chief justice Lord Neuberger thus hailed the importance of open justice: ‘Unless justice is carried out publicly, there is a real risk that the public will lose confidence in the justice system, and there is a real risk that judicial standards will slip’.”
Since colonial times in Mauritian courts, open justice has already been impeded by a language barrier. English, which is not the maternal language spoken and understood by everyone, continues to be the language used by the judiciary. The anti-democratic nature of this reality was beautifully expressed in the theatre masterpiece Tras of Henri Favory in which lawyers use madam sere when pleading in a key court case brought by sugar labourers against an estate, making us realise, in case we hadn’t, exactly what it means not to understand what is being said in court. It reminds us of the commonplace spectacle of a plaintiff or defendant rushing to catch up with their lawyer just to find out what had happened in their case after a court hearing and being left wondering what actually happened in the court room. People often do not even know who is responsible for undue delays in court or whether what was actually argued in court reflects the actual facts or points of law. There are two barriers: either the language barrier or because they, or those accompanying them who understand English, could not hear court proceedings well enough. The problem of not being able to hear court proceedings in the large courtrooms of the New Supreme Court was obvious to everyone who was in Court to hear (unsuccessfully) proceedings in Lindsey Collen’s case to challenge the constitutionality of the Immigration Act 2022 a few weeks ago. This was the case even though the court rooms seems well equipped with brand-new microphones and loudspeakers. This is not “open justice”.
We would like to add to Barrister Bhuckory’s argumentation for Open justice by quoting the remarks of the Right Honourable Beverley McLachlin, P.C., former Chief Justice of Canada at the Annual International Rule of Law Lectureorganised by the UK Bar Council (8 January, 2014).
“Today, I take as my theme one of the elements of the rule of law Lord Bingham set out in his
book – the principle of open justice. Lord Bingham held that the core of the rule of law is the
principle “that all persons and authorities within the state, whether public or private, should be
bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future
and publicly administered in the courts.”
(...)
“Open justice serves three important functions:
(1) it assists in the search for truth and plays an important role in educating the public by permitting access to and dissemination of accurate information;
(2) it ensures and enhances judicial accountability, deterring misconduct by judges, police officers and prosecutors; and
(3) it performs a therapeutic function by permitting the community to see that justice is done.
In these ways, the open courts principle works to preserve public confidence in the administration of justice, which is essential to the rule of law.”
Source: https://www.barcouncil.org.uk/uploads/assets/f73b28da-a633-4eb2-b9834a15dea0ec80/jan82014-12ptruleoflaw-annualinternationalruleoflawlecture.pdf
This is, after all, the barest minimum democracy that the capitalist state is supposed to offer: actually hearing what is going on in Court in the proceedings that affect you.
