Open court philosophy

For proper dispensation of justice, proceedings in open court are sine qua non vis-à-vis proceedings in camera. It is deeply rooted in the principles of openness, transparency, and fair play.

The history of common law is replete with open trials. It was a norm except for star chambers where proceedings were kept in secret.

Such secret and in-camera proceedings have never been appreciated and have always been deprecated by the civilised world on the touchstone of fair play and transparency.

The Star Chamber in Great Britain, named due to its starred ceiling, which was at one point regarded as an efficient institution for the dispensation of justice and harbinger of justice, has a chequered history.

Due to the lack of fairness and transparency and augmented with opaqueness in the manner in which the Star Chamber functioned, it is regarded as an instrument of oppression and a tool for persecution.

Historically speaking, the in-camera proceedings undertaken by the Star Chamber have come to be observed and known as one of the reasons for its degeneration from being an instrument of justice to becoming a tool for persecution and torture.

The lessons learnt from the proceedings of the Star Chamber by common law jurisdictions led to the evolution and applicability of the principle of Open Court. In this context , dicta from Ambard vs. Attorney General for Trinidad and Tobago([1936], A.C. 322) is often cited where it was held that, “justice is not a cloistered virtue…She must be allowed to suffer the scrutiny and respectful…comments of ordinary men.” In a similar tone and tenor, it was opined by the US Supreme Court, Justice Louis Brandeis, in “What Publicity Can Do”(Harper’s Weekly, 1913) that, “sunlight is said to be the best of disinfectants…”.

The erudite English philosopher Jeremy Bentham, who in Anarchical Fallacies,1791, wrote a few centuries back ,“[i]n the darkness of secrecy, sinister interest and evil in every shape have full swing…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“. His saying is still remembered and echoes as a masterpiece of openness and transparency. The punchline of the saying is that in the open trial, the judge himself is under trial.

It is a trite law and well settled, and a celebrated principle of administration of justice, laid down by Lord Hewartin Rexv. Sussex Justices, [1924] 1 KB 256, that “not only must Justice be done; it must also be seen to be done”. This principle is part and parcel of Article 4 of the Code of Conduct for Judges of the Supreme Court of Pakistan and of the High Courts of Pakistan (“Judicial Code of Conduct”).

The Judges of Constitutional Courts always swear an oath while taking their charges that they would dispense justice in accordance with the Constitution and the law, while strictly abiding by and complying with the Judicial Code of Conduct.

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (the European Convention) is a milestone, inter alia, in the history of human rights regarding a fair trial. It delineates the Right to a Fair Trial. Sub article (1) of Article 6 sets out, “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order, or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Sub article (2) of Article 6 further sets out, “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Sub article (3) of Article 6 enjoins, “ Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defense; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.“ The 5th and 14th amendments to the United States of America’s constitution provided for the due process clauses.

The 5th Amendment of the US constitution reads as “No person shall be deprived of life, liberty, or property without due process of law.”

The 14th Amendment of the US constitution reads as “No state shall …. Deprive any person of life, liberty, or property without due process of law. Article 10A of the constitution of Pakistan is a hybrid and emblem of Article 6 of the EU Convention and due process articles of the US constitution. It sets out “For determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.”

It begs the question as to why open trial is so important and pivotal for dispensation and administration of justice. The Open Court principle is grounded in the fact that it ensures public accountability for the manner in which constitutional judges and judges of the lower judiciary dispense justice. It is the litmus test whether they are abiding and complying with their Oath of Office and the Judicial Code of Conduct.

The underlying and paramount interest is that of the citizenry in an independent, impartial, and fair administration of justice. Are there exceptions to the open court philosophy? The answer is in affirmative and based on, inter alia, the interests and privacy of the litigating parties in sensitive cases (like rape cases) and matters of national security, etc. However, such exceptions are exceptions to the general rule and are narrowly construed.

Pursuance and protection of collective interest constitute one of the most important elements for the survival and perpetuation of the existence of a political community. However, it is not the security of an inanimate monolith.

The state comprises citizenry at large, and under the social contract, the state has to protect the interests of its citizens.

Collective security of the citizens is the hallmark of a state based on constitutionalism and the rule of law. In a constitutional democracy, the state cannot pursue and articulate interests that are independent and oblivious to the interests of its citizens.

The raison d’être of the concept of national security is to protect and promote the collective interests and rights of the citizens of the state, and not those of any artificial legal construct. Where collective interests eclipse and outshine the individual interests of the citizens, it is attributed to a shared understanding that the collective rights and interests of the community and society will be granted preference over the rights and interests of any individual. However, in order to protect the rights of the individual, certain fundamental rights, including a right to be treated in accordance with law and a right of a fair trial, are guaranteed by the constitution, which need to be guarded by the judiciary, being the guardian of the constitution.

It is the duty of the courts to strike a balance between the collectiveinterests vis-à-vis individual interests. While weighing collective interests vis-à-vis individual interests, ultimately it is for courts to decide whether proceedings are held in camera or in open court, watched and seen by the public.

It has been observed that in the lower courts, honorable high courts, and in the honorable apex court, citizens cannot enter and attend court proceedings unless they are the litigants. The police at the gates ask questions whether you are a litigant or not. In case you are not a litigant, they do not allow you to enter the court.

Unless there is any security issue or there is an imminent fear of courts being really overcrowded, a citizen, whether a litigant or not, should be allowed to enter and attend proceedings in the court, subject to proper entry through recording of proper credentials such as having a valid CNIC, which is a hallmark of the open court principle. This will in fact guarantee the open court principle.

Copyright Business Recorder, 2025