EVERY citizen of Pakistan, whether seeking the determination of their civil rights and obligations or facing a criminal charge, is inherently entitled to a fair trial and due process. In tandem with these rights, they also possess the right to access information pertaining to matters of public importance. This leads us to a thought-provoking query: do citizens not possess the right to access information about fair trials conducted within the courts of law of their country? If indeed they do have the right, how can they access information regarding trials of public importance? The answer lies in the concept of the Open Court.
An Open Court is one where the general public possesses the right to witness the court’s proceedings. Anyone interested in observing these proceedings must be granted the opportunity to do so. The openness and public witnessing of court proceedings build public confidence. The judiciary cannot exist without the trust and confidence of the people. The term “Public confidence in the judiciary” is frequently used, yet it remains undefined. It’s one of those concepts that everyone believes they understand, but it lacks a solid core of content upon which all can agree. Anyhow, this confidence is hidden in the aphorism of Lord Hewart: “Justice must not only be done, but must also be seen to be done”. This confidence is imperative for the perpetuation of societal viability. Honore de Balzac, as quoted in Kirchheimer’s ‘Political Justice,’ once said, “To distrust the judiciary marks the beginning of the end of society”. In the case of Naresh Shridhar Mirajkar, a nine-judge bench of the Indian Supreme Court remarked, “Public confidence in the administration of justice is of such great significance that there can be no two opinions… in discharging their functions, courts must hear cases openly and allow public admission to the courtroom”.
The trial ought to be accessible to all. Justice is now open justice: there is no justice behind closed doors. Lord Diplock articulated it, in the case of Attorney General v. Leveller Magazine that “the principle of open justice mandates that the court should refrain from discouraging fair and accurate reports of proceedings”. In his ‘Philosophy of Right,’ Hegel asserted that judicial proceedings must be public, as the aim of the Court is justice and justice belongs to all. Open justice in open court is a wholesome check upon judicial behaviour besides the conduct of the contending parties and their witnesses. Next query is how to reach open justice. Active utilization of the right to access information, as defined in Article 19 of the Constitution of Pakistan, coupled with the current technology of live streaming is the solution.
Many countries are live streaming court proceedings. In the United Kingdom, selected hearings have been live streamed since 2018 on the judiciary’s own social media platforms. Because of the COVID-19 pandemic, the ‘Corona Virus Act 2020’ incorporates provisions that facilitate the utilization of video and audio technology in courts and tribunals across the UK. Macedonia, in 2013, introduced the ‘Law On Audio And Audiovisual Media Services’. This legislation offers comprehensive provisions that oversee audiovisual media services.
Since 2013, the Higher Courts of Australia have been releasing audiovisual recordings of their hearings to the public. They have also progressed to publishing audiovisual recordings of Full Court hearings held in Canberra on their official website. In this context, New Zealand enacted the ‘Courts (Remote Participation) Act’ in 2010. Part 2nd of this Act specifically addresses the utilization of audio and video links in legal proceedings. Confucius takes justice as the core of societal progress. China is leading this movement: with internet courts they are addressing a spectrum of disputes, including intellectual property, e-commerce, finance, patent registration and civil rights. Live streaming is subject to exceptions, but they are not the subject here.
Nevertheless, where there is no openness there is no justice. Openness is the very soul of justice. Bentham said, “In the darkness of secrecy sinister interests and evil in every shape, have full swing. Only in proportion as publicity has a place can any of the checks applicable to judicial injustice operate. Open-public access to the proceedings would completely eradicate the issues of misreporting, underreporting, errors, or second hand information. Access to information is an inherent fundamental right. However, it’s important to note that underreporting, misreporting, or conveying second-hand information to the public is not considered wrongdoing in our country. As a result, citizens of Pakistan are rightfully entitled to personally observe the live streaming of court proceedings.
Live streaming will benefit numerous litigants with cases nationwide, enhancing the delivery of justice. Litigants will avoid in-person court visits and will be enabled to manage their daily responsibilities. In 2017, Indian law student Swapnil Tripathi challenged the rule preventing his entry to the Supreme Court on important hearing days. His petition for live-streaming proceedings was granted, supported by dual reasons: transparency and accountability. Live streaming is an opportunity to directly witness the Justice being done. It encapsulates transparency and good governance. Beyond their confines, it will enable courtrooms to host numerous viewers via live proceedings. Technological solutions can bridge the gap in access to the courts and access to justice.
There is no necessity for separate legislation concerning live streaming. According to Article 187(1) of the Constitution, the Supreme Court of Pakistan possesses the authority to issue directions, orders, or decrees necessary for ensuring complete justice. High Courts also possess jurisdiction to frame adequate rules for live streaming. However, the question remains: is complete justice achievable without the presence of open justice and public confidence? Is public confidence attainable without open court and access to their proceedings? No, it is not. Live streaming will restore eroded public confidence. To sum it up, unshackle the justice, unfurl justice and set justice free. Let the corridors of fairness remain open. Lastly, let the people of Pakistan determine whether the principle “Justice must not only be done, but must also be seen to be done” is upheld in public importance cases. In conclusion, I must say, broadcast the justice.
—The writer is a law practioner of the high court and writes on various topics.
Email: hafizazeemkhokhar@gmail.com.
