THESE are reoccurring words in today’s Pakistan but does the layman have an understanding of what they actually mean? Which of these principles is a right under the law; a right every citizen can claim and which of these is a privilege accessible only for those who have influence.
‘Open Court’ principle can be inferred as a constitutional right in Pakistan whereby court proceedings are open and accessible to the public and media. In contrast ‘In Camera’ describes court proceedings where the press and public are not given access and proceedings are conducted within closed doors. Proceedings in an open court are conducted in a normal manner however, whosoever desires to watch has a right to do so in the interest of ‘justice being seen to be done’. This principle of ‘justice seen to be done’, is the spirit of the Oath taken by the Justices of the Supreme Court of Pakistan wherein they promise to strictly abide by the code of conduct of judges in accordance with the directives of the Supreme Judicial Council. This honourable council vide its notification dated 2ndSeptember 2009 clearly stated that:
“The prime duty of a Judge as an individual is to present before the public an image of justice of the nation….” It is further stated in Article V of the “Code of Conduct to be observed by the Judges of the Supreme Court of Pakistan and the High Courts of Pakistan” that: “Functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.”
The terms “public image of justice” and “full view of public” are inherently establishing a right of an open court hearing and tieing in closely with the fundamental constitutional right of a fair trial (Art 7).Further, reinforcement of open justice can be seen in order 18 Rule 4 of Civil Procedure Code 1908 which provides thus, “The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the judge.”
International laws, extensive precedent and legal literature from countries such as Canada, Australia and the USA, have supported the principle of open court, however, to understand this principle as a matter of right and not just a privilege in the context of Pakistan, it is important to keep in mind a corresponding reading of the Constitution, the Code of Conduct of the Judges and the Civil Procedure Code 1908.Also it is important to comprehend that the fundamental constitutional right of a fair trial cannot be safeguarded unless there can be transparency through an open court proceeding.
Historically the concept of an open court has been discussed and aligned directly with the concept of a fair trial. “Long ago Plato observed in his laws that the citizen should attend and listen attentively to the trials.” The open court principle has long been recognized as a cornerstone of the common law. In its 1913 decision in Scott v. Scott, the House of Lords noted the right of public access to the courts is “one of principle … turning, not on convenience, but on necessity”. In the 1936 decision of Ambard v. Attorney-General for Trinidad and Tobago, Lord Atkin noted “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.”
Another concept that increases the complexity of the matter is the protection of victims confidentiality and officially secret or sensitive information. Is the right to an open court enforceable where state secrets maybe disclosed or victims confidentiality and fundamental right to privacy, may be compromised, such as in cases of rape or child abuse? 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. This article can be invoked at the determination of the judges to protect victim confidentiality, state secrets or any other sensitive information which in the interest of justice should not be publicly made available. Cases may occur where it is the primary requirement for the administration of justice to hold in camera trials.
Rights vested through the laws are supported by common sense reasoning and a concept of basis fairness. The logic behind emphasizing the need for open courts and open justice, stems from three main arguments. Firstly, justice should be transparent and thus establish its own accountability and credibility. Secondly, the implication of penalties and the consequence of actions is a deterrent to misconduct. Lastly, in a society like Pakistan where the people’s faith in the organs of the state is shaken and socio-political instability has created doubt and worry in the minds of a common Pakistani, justice seen to be dispensed can have a therapeutic effect on the general state of happiness and public confidence.
In politically sensitive matters such as the case of the ex-Prime Minister Imran Khan’s bail plea in Cypher case, there are several complexities involved while ensuring that an open court hearing is not mishandled by irresponsible media coverage or trouble provoking elements which can ignite hate or political instability by misreporting or misinterpreting a proceeding until it has reached finality in decision. The Supreme Court’s discretion and powers under Article 187 of the Constitution in such cases is a tool that can be utilized to limit or allow the public access, after a fair assessment in the interest of justice and safety of the parties involved and the nation at large.
—The writer is a Legal Expert qualified from Switzerland and an Advocate of the High Courts of Pakistan. She is the Senior Partner of S&S Law Associates. She has served as Senior Advisor Legal to the Federal Ombudsman and Legal Advisor to the UKAID, UN & ICRC.
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