The Evolution of Open Justice in Pakistan

Open justice is an integral legal principle that nurtures transparency, accountability, and public accessibility. It enables citizens to experience court hearings, obtain court records, and access the operations of the judiciary. The notion of open justice in Pakistan has evolved, inspired by both core constitutional principles and recognized international law. The concept of ‘ justice is seen to be done ‘ is the essence that underlies the oath pledged by the Justices of Pakistan’s Supreme Court, in which they swear to scrupulously adhere to the code of conduct for judges in compliance with the Supreme Judicial Council’s provisions. This article will critically evaluate the advancement of open justice in Pakistan, discussing its pros and cons, and then conclude that open justice serves the purpose of promoting stability and providing information to the public at large.

In Pakistan, the principle of open justice originates from the British colonial era, where standards of accessibility and public scrutiny were established. It was also acknowledged in the Evidence Act 1872 which was later replaced by the Qanun-e-Shahadat Order 1984. As highlighted the concept of open justice by enabling members of the public to visit hearings in courts. Traditionally, the idea of an open court has been debated and firmly associated with the concept of fair trial. Long ago, Plato recognized in his laws that the citizen ought to go to and respond meticulously to the proceedings.  Nevertheless, open justice wasn’t given official legitimacy in Pakistan until the Constitution came into force on 14 August 1973. This led to the right to a public trial, as specifically guaranteed under Art 10 -A.

Pakistan’s Constitution serves as the foundation for the nation’s leap towards open justice. Art 4 of the Constitution establishes the rule of law norm, incorporating the concept of open justice. Moreover, Art 19-A ensures the right to information by rendering court records and procedures easier to access. Through landmark decisions, Pakistan’s Supreme Court has played an instrumental role in upholding and enhancing the scope of open justice. A jurist’s primary responsibility as a member of society is to demonstrate to the people an account of the country’s justice. It is also specified in Art V of the Code of Conduct, which must be adhered to by judges of Pakistan’s Supreme Court and Higher Courts.

Pakistan has established particular legislation to encourage transparent justice in addition to constitutional principles and international obligations. The Right to Information Act of 2013 ensures public agencies, including the court, have access to information. Order 18 Rule IV of the Civil Procedure Code 1908 and the S.352 Code of Criminal Procedure both encourage open justice by providing means for the general public to have access to court records and media coverage. Nevertheless, obstacles persist in effectively enforcing and utilizing these legislative provisions.  Terms like open justice tacitly indicate a right to an open court and are closely related to the core fundamental right to a fair and impartial trial under Art 10.

Pakistan has ratified many international conventions and treaties that recognize the value of open justice. Article 14 International Covenant on Civil and Political Rights (ICCPR), stipulates an entitlement to fair and open justice. Accountability and transparency within the administration of justice are additionally emphasized by the United Nations Convention Against Corruption (UNCAC). These international obligations have influenced Pakistan’s establishment of open justice, which was later called for to be enshrined in domestic law since Pakistan is a dualist state. Substantial legal literature from countries such as Canada, Australia, and the United States has endorsed the premise of open justice; notwithstanding, for one to fully comprehend and grasp the aforementioned principle in Pakistan, it should be in accordance with the Constitution, which must be undertaken. The mere concept of open justice was originally seen as an essential component of common law. The United Kingdom Supreme Court, previously known as the House of Lords, acknowledged the freedom of the public to access the courts in its 1913 ruling in Scott v. Scott. Lord Atkin remarked in the 1936 judgment Ambard v. Attorney-General for Trinidad and Tobago, “Publicity is the very soul of justice.” It is the most potent stimulant to exertion and the most reliable of all safeguards against uncertainty.”

Open justice provides multiple benefits in terms of increasing transparency and accountability. Predominantly, it increases public trust and confidence in the courts by allowing people to observe the impartiality of court proceedings. Secondly, open justice enables public monitoring of the judicial process, which deters corruption, malpractice, and abuse of power. Additionally, it stimulates accountability by making it possible for the public to hold court officials responsible for their conduct. Moreover, it also facilitates legal education and public awareness, establishing a culture based on legal empowerment.

Although open justice proposes several benefits, it additionally comes with certain drawbacks and constraints. For instance, there is a risk of invasion of privacy, particularly in delicate cases that involve children or victims of sexual offences. Subsequently, open justice may result in sensationalism and media trials, jeopardizing the court procedure’s credibility. Following that, the general public’s presence inside courts can be unsettling for the vulnerable witnesses, impairing their capacity to offer forthright testimony. On top of that, open justice could result in the disclosure of confidential information, putting national security in peril. The Supreme Court of Pakistan has the authority to grant directions or orders, imperative to administer open justice, under Art 187(1) of the Constitution. This provision can be evoked if the courts believe the victim’s confidentiality, classified information, or any additional sensitive material ought not to be made accessible in the pursuit of justice.

To strike a balance between accessibility and ensuring the safeguarding of individual rights, the benefits and drawbacks of open justice must be efficiently considered. The judiciary should take steps to guarantee the privacy and safety of vulnerable people while upholding the idea of open justice. To steer clear of sensationalism, the media should also practice ethical reporting. Meanwhile, the judiciary should use technology to allow for remote access to court proceedings, maintaining accessibility while minimizing any interruptions, as recently evident from the Supreme Court (Practice and Procedure) Act 2023 live proceedings.

Ultimately, the growth of open justice in Pakistan has been driven by internal principles of law, notably its Constitution, as well as international law and conventions. Transparency, accountability, and public awareness are all elevated by open justice. While open justice has obstacles, they can be addressed through vigilant execution and the adoption of suitable protections. In its entirety, open justice aids public transparency and accessibility, and its ongoing development should be a top priority for Pakistan’s judicial system.

Bibliography

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