5 Things About Open Justice

5 Things About Open Justice

1. Has several aspects

In Public Prosecutor v Karpal Singh [2002] 2 MLJ 657, Augustine Paul J (later FCJ) made the following observation:

“The concept of open justice has two aspects; firstly, with regard to proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and, secondly, in criminal cases at any rate, all evidence communicated to the court is communicated publicly (see AG v Leveller Magazine Ltd [1979] AC 440). This ensures transparency in court proceedings.”[1] (Emphasis mine)

The Federal Court in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 4 MLJ 281 (“Najib Razak”) made a similar observation on one of the aspects of ‘open justice’:

“The overarching theme here is that as far as is possible, court proceedings should be open and accessible to the public in the interests of transparency.”[2] (Emphasis mine)

In Swapnil Tripathi vs Supreme Court Of India AIR 2018 SUPREME COURT 4806, 2018 (10) SCC 639, AIR 2019 SC (CIV) 194 (“Swapnil Tripathi”), a decision of the Supreme Court of India, Dr Dhananjaya Y Chandrachud:

“[Open justice] has both procedural and substantive dimensions, which are equally important. Open justice comprises of several precepts:

(i) The entitlement of an interested person to attend court as a spectator;

(ii) The promotion of full, fair and accurate reporting of court proceedings;

(iii) The duty of judges to give reasoned decisions; and

(iv) Public access to judgments of courts.”[3]

2. A common law concept

In Swapnil Tripathi, Dr Dhananjaya Y Chandrachud stated that:

Open justice is a long-established principle of common law systems.”[4] (Emphasis mine)

3. Has statutory support

Section 15(1) of the Courts of Judicature Act 1964 codified the concept of ‘open justice’:

Courts to be open and public

(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.” (Emphasis mine)

4. Fundamental to a functioning democracy and promotes good governance

This was remarked by the Federal Court in Najib Razak:

“Open justice is fundamental to a functioning democracy and promotes good governance.”[5]

Dr Dhananjaya Y Chandrachud observed in Swapnil Tripathi that:

“[Open justice] rests on a high pedestal in a liberal democracy as ‘a sound and very sacred part of the Constitution of the country and the administration of justice…’1”[6] (Emphasis mine)

5. Not absolute

This was recognised by the Federal Court in Najib Razak:

“Of course, no one is disputing here that open justice is not absolute.”[7]

Section 15(1) of the Courts of Judicature Act 1964 provides an exception to ‘open justice’ as a general rule:

Courts to be open and public

(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.” (Emphasis mine)

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