“Where there is no publicity there is no justice” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial” Jeremy Bentham’s pithy aphorism encapsulated a proposition that had been long known and expressed in different ways: the principle of open justice.
This article presents a contextual reappraisal of the dictum, by offering an overview on the principle of open justice principle in HK’s social context, covering its underpinning legal principles and ultimately propounds that the Rule of Law cannot be fully implemented unless the principle is established.
As a prelude to discussing the alternative interpretations of the dictum in the context of the Rule of Law, one should first define the concept of the Rule of law. As defined by Lord Bingham, the Rule of Law prescribes that “all persons and authorities within the state, whether public or private, should be bound by and entitled to benefit from laws publicly made, taking effect in the future and publicly administered in the courts.”
Benefits of open justice
Proponents of open justice assert a number of benefits. The overarching benefit is that it acts as a safeguard for the proper administration of justice, maintaining the Rule of Law. Openness results in more accurate verdicts, which spurs witnesses to testify, encourages the submission of new evidence, and disputes publicised statements.
Another incidental benefit is that the enhanced accessibility induces a greater degree of public awareness.
Manifestations
The constitutional significance of the principle of open justice is manifested in a plethora of precedents and statutes. The open court principle is encapsulated in article 10 of the Hong Kong Bill of Rights, which proscribes infringements, interferences, and attacks against one’s inherent right to freedom of thought and expression. This is further corroborated by the recent case in Asia Television Ltd v Communications Authority wherein Chief Judge Cheung had formulated 10 basic principles relating to open justice. Progressive advocates have been proffering the use of cameras in court and televising court trials in the interests of transparency.
Exceptions and compromises
With every contentious issue, polarised opinions are inevitable. Contenders of the principle challenge the sustainability and applicability of the open court principle under the context of the 21st century, in particular the delicate balance between cost-efficiency and accessibility.
Striking the appropriate balance between the right to confidentiality and open justice has long been an issue of social discourse. Certain courts conduct hearings in private, for example family proceedings, where press intrusion constitutes an infringement of privacy. Recently, the HK Judiciary redacted media access to information on charge sheets, in particular information relating to officers-in-charge under the guise of avoiding doxxing, effective from March 30. Prior to the issuance of the statement, it must be noted that access to said documents was only exclusive to the media. Ultimately, the crux of the issue is dependent on whether the information disclosed is proportionate to the reasons for judicial disclosure.
Challenges to wider application
In reality, a great degree of variance is noted in the application of the principle of open justice. The principle is interpreted with discrepancies, as evident in a number of early decisions on reporting access and restrictions, some overturned at appeal. In 2016, Mr Justice Globe was not persuaded by the ‘deterrence’ argument in naming two teenage girls found guilty of the murder of Angela Wrightson; in contrast, in 2014, Mr Justice Coulson considered that naming a 15 year old convicted of the murder of his teacher Ann Maguire ‘had a clear deterrent effect’.
The aforementioned discrepancies do not negate the principle of open justice, rather posit the fair, consistent and universal application of openness, based on clearly written and published guidance for physical and digital dissemination of material. Provisions for exceptions should be made yet it must be emphasised that the underlying procedure should maintain its transparency, even if some information is legitimately withheld.
The current situation in HK
In light of the COVID-19 pandemic, court closures, trial delays, and bottlenecks in the administrative tasks preceding the trial has been an issue of concern. It lowers public and media accessibility to court cases, posing formidable challenges to the principle of open justice and subsequently, the Rule of Law. The backlog of court documents generated could be ameliorated by implementing synthesizing and integrating technology into the court system. In Re Cyberworks Audio Video Technology Ltd, the High Court decided that it can order that a direction hearing take place by means of a telephone conference, as opposed to the conventional conference requiring physical presence. The decision is welcome in view of the extenuating circumstances in which the decision was made, including the closure of courts from February to mid-March. In essence, the covid pandemic should not be bemoaned as an impediment to the rule of law, but rather perceived as a catalyst for ensuring court systems assimilate technology into its mechanisms for greater safeguarding of the principle of open justice.
References
Writer: Angela Chan
Editor: Bernice Lau
Artists: Holly Liu & Ran Zhao
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