Open Justice and Secret Courts
Victor Yao Lida
For some time now, the media has been awash with the story of Edward Snowden’s leakage of top secret National Security Agency (NSA) documents. While interest in Singapore has been muted on this issue, the same cannot be said for the Americans, British, French, German, even Brazilian citizens who are outraged by the fact that they have been spied on by their own governments, or their ostensible ‘allies’. At the heart of the massive interest generated by the Snowden revelations is necessarily the issue of privacy.
This article will examine a legal facet of that issue, by first looking at the secret courts which have been instituted in the United States and the United Kingdom in the context of Open Justice. These institutions arguably represent a movement against Open Justice. This article then moves to examine a contrasting shift in the tide in China, where the Communist Party government was unusually open and public in the trial of Bo Xilai.
What is Open Justice, and why is it important?
“[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Hewart CJ in R v Sussex Justices, ex p McCarthy (1924).
Open justice is the legal rule which requires courts and other bodies which discharge functions of a judicial nature to conduct their proceedings in public.1 It is one of the key tenets of the rule of law, and applies to both criminal and civil trials. It is usually regarded as being of higher importance to the former however, and therefore finds explicit expression in such crucial legal documents as the U.S. Constitution (Sixth Amendment), the European Convention on Human Rights (Article 6), the Canadian Charter of Rights and Freedoms (Section 11). Notably, there is no mention of such a requirement in the Singapore Constitution- the closest would probably be Sections 230 and 233 of the Criminal Procedure Code.2
Three main arguments have been made in support of the concept of Open Justice.
Firstly, the key value of open justice is intimately associated with the concept of the fair trial. As Lord Neuberger, President of the UK Supreme Court noted in his judgment in Bank Mellat v Her Majesty’s Treasury (2013)3, “Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing.”4 Secondly, there is the disciplinary rationale of open justice- ‘that the community should be able to see that the law is being properly applied and administered.’5 Underpinning this rationale is the need to ensure that judgments are given fairly and without bias by judges.
Thirdly, there is also the deterrent function of open justice, where the conviction and harsh sentencing of criminals are made publicly known, thereby deterring would-be criminals from acting illegally.
America: the foreign intelligence surveillance court
The United States has long had a mechanism for ensuring a judicial check on the investigative powers of the executive branch. In 1978, Congress passed the Foreign Intelligence Surveillance Act, which governs and restricts the executive’s ability to conduct surveillance in both the domestic and international spheres. Keen to protect the American citizen’s right to privacy, Congress also created the Foreign Intelligence Surveillance Court (FISC), a special court with a mandate to review applications for warrants related to national security investigations.
Proceedings before the FISC are ex parte and non-adversarial, where the presiding judge will only receive submissions from the government due to the sensitive nature of the material.
United Kingdom: Justice and Security Act
The United Kingdom has taken a similar turn towards secret courts, with the Justice and Security Act just passed in April this year. While the UK has not created a separate court, what the Act essentially does is to extend the scope of “closed material procedures.” Under these procedures, the government can request that the court move into secret session, such that its submissions would only be reviewed by the presiding judge and other security-cleared personnel.
Similarly to the American approach, the other party – if there is one – will not have any right to examine the government’s submissions.
Is there (Open) Justice?
Both the US and UK approaches seem to go against the notion of open justice, since the only arguments the judge will hear are those of the executive, whose very presence at the court suggests that they wish to create further incursions into the privacy of the unknown, unrepresented individual. There will thus be a tendency towards bias by favouring the state, as against the individual.
Pitted against the arguments for openness however are the valid concerns of national security. National security demands that sensitive material not be exposed to the public eye, lest their revelation endangers the safety of intelligence personnel, or compromises the ability of the state to protect the greater welfare its citizens.
It seems commonsensical that in such a situation courts will have to strike a balance between upholding the rights of the individual, and state’s interest in protecting national security. Yet, the actual practice of the courts thus far seems to be somewhat beyond the pale.
At the time of writing, the FISC has been found to have approved an NSA request to intercept millions of telephone metadata, the timing and location information about whom someone dials, texts, or email. Moreover, there is now widespread concern that such approval has been rather purposeless- as even Senators Ron Wyden and Mark Udall note that “intelligence agencies made statements to both Congress and the [FISA court] that significantly exaggerated this program’s effectiveness.”6
Across the pond, the UK judiciary itself has been noticeably reluctant to embrace the new Justice and Security Act. This was made evident in the UK Supreme Court judgment in Bank Mellat, where Lord Neuberger, President of the Court wrote “any judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed material procedure, whenever it is mooted and however understandable the reasons it is proposed, with distaste and concern.”7 Lord Hope, deputy president of the court, was even more vociferous, declaring that, “Secret justice at this level is really not justice at all.”8
Indeed, in view of the fact that there is no written constitution in the UK, and correspondingly that Parliament is supreme, the judiciary has had no choice but to accede to the requirements laid down in the Justice and Security Act. Consequently, they seem to have taken to the court of public opinion. Lord Neuberger has publicly gone so far as to say that “the campaigns for improving open justice in the courts are to be applauded.”9
China: A remarkable openness
China witnessed one of its most sensational trials in decades earlier this year, with the trial former Politburo member Bo Xilai on charges of corruption. The severe sentence meted out, life imprisonment, was of significant interest to the general Chinese public as it illustrated the new Chinese government’s commitment to rooting out corruption. Yet what was arguably more significant was the manner in which the trial itself was carried out.
Most spectators had expected the trial to be a carefully scripted ‘show trial’, ending with the inevitable conviction. Many were instead surprised by the remarkable openness shown by the Chinese government, as the proceedings of the trial were instead updated on a live stream on Weibo- the Chinese equivalent of Twitter- set up by the Jinan Intermediate People’s Court itself.10
While it may be argued that within the trial itself the verdict was inevitable, the fact remains that China has taken a huge step in the direction of openness here. The harsh sentence itself satisfies the deterrent function of open justice, but the open nature of the proceedings itself validates the disciplinary rationale of open justice as cited above. By allowing the public access to what was actually said in court, the government has decisively moved to inspire greater faith in the integrity and fairness of its judicial system.
Whither Open Justice Now?
The courts have traditionally been seen as the final bastion in the protection of the individual’s rights, serving as the definitive check on the executive’s exercise of power. However, trends in both the U.S. and the U.K. point to an undermining of the court’s independence, and serve to provoke questions to whether the courts are still in the best position to adjudicate over the executive’s actions, especially where they do not receive the benefit of opposing arguments. As public interest grows on this issue, perhaps the trend against openness will be reversed. In contrast, China’s steps towards openness are to be applauded as a step in the right direction. It can only be hoped, though, that these tentative steps will eventually become a full-fledged embrace of open justice, such that public faith in the judicial process becomes entrenched.
[1] Jaconelli, Joseph. Open Justice: A Critique of the Public Trial (Oxford University Press, 2002) at 1.
[2] (Cap 68, 2012 Rev Ed Sing)
[3] Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38 [Mellat]
[4] Mellat, supra note 3 at [3].
[5] R.A. Duff, Trial and Punishments (Cambridge University Press, 1986) at 147-8.
[6] U.S. Senate, Press Release, “Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection Program” (02 July 2013) online: <http://www.wyden.senate.gov/news/press-releases/wyden-udall-statement-on-the-disclosure-of-bulk-email-records-collection-program>
[7] Mellat, supra note 3 at [51].
[8] Mellat, supra note 3 at [98].
[9] David Barrett, “Openness a ‘fundamental principle’ of justice, says Britain’s most senior judge” online: The Telegraph <http://www.telegraph.co.uk/news/uknews/law-and-order/10351250/Openness-a-fundamental-principle-of-justice-says-Britains-most-senior-judge.html>
[10] Qiang Zhang, “Microblogging the Bo Xilai trial: Transparency or theatre?” online: BBC <http://www.bbc.co.uk/news/world-asia-china-23806657>