MISSION

To reduce the scope for corruption, violence and human rights abuse within developing-world legal systems and, thereby, strengthen the rule of law in aid of national development.

GOALS FOR EACH COUNTRY:

Short-term: Legal system transparency that engenders improved accountability, civic engagement and reform.

Medium-term: A reduced incidence of legal system corruption, violence, human rights abuse and injustice. 

Long-term: Greater legal stability and predictability, reduced levels of corruption generally, greater capitalisation of assets, improved commerce and standards of living, reduced environmental degradation, reduced levels of conflict and disorder, lower incidence of radicalism and enhanced freedom of expression.

RULE OF LAW:

The Secretary-General of the United Nations defines the rule of law as:

• a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Respect for the law by the authorities and the ideal of equality before the law are the bedrock of prosperous and democratic societies in the developed world. In the developing world, however, legal systems are very often dysfunctional, blighting the country they are supposed to serve, thus retarding social, political and economic development. Ideally a legal system should serve society as a whole, rather than an elite, sectarian factions, or be self-serving (i.e. serving the interests of judges, lawyers, prosecutors and the police).

 OPEN JUSTICE:

Open justice is central to OpenTrial's work in the developing world. Indeed, so important is open justice in the developed world, that it is enshrined in the Sixth Amendment of the United States Bill of Rights which guarantees an accused criminal the right to a ‘speedy and public trial’. More recently, it has also been incorporated in international human rights instruments such as Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the European Convention for the Protection of Human Rights. In both treaties the right is expressed as an entitlement to ‘a fair and public hearing by an independent and impartial tribunal established by law’.

Self-explanatory quotes on the importance of open justice from senior judges in the developed world:

“Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law.” “Public awareness of what happens in our courts serves to bolster public confidence in the administration of justice.” - Lord Neuberger of Abbotsbury, Master of the Rolls for England & Wales.

“It is my personal belief that in any society which embraces the rule of law it is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny.” -  Sir Igor Judge,  Lord Chief Justice and President of the Courts of England and Wales.

 “Justice should not only be done, but should appear to have been done.” - Lord Sankey in the Nottingham Journal Case [1929] 2 KB 1, 33. 

Sound and very sacred part of the constitution

The open justice principle is "a sound and very sacred part of the constitution of the country and the administration of justice’. He went on to say, in rejecting the proposition that the courts could create new categories of exclusion: ‘to remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand." - Lord Shaw in Scott v Scott, House of Lords [1913] AC 417, 473 “ . . . in the public trial is to be found, on the whole, the best security for the pure impartial and efficient administration of justice, the best means for winning for it public confidence and respect.” - Lord Atkinson in the same case.

"The fundamental rule is that judicial proceedings must be conducted in an open court to which the public and the press have access. A court cannot agree to sit in camera, even if that is by the consent of the parties."  "One important manifestation of the principle [of open justice] is also the foundation of judicial accountability. I refer to the obligation to publish reasons for decision. This obligation requires publication to the public, not merely the provision of reasons to the parties.” - JJ Spigelman AC, former Chief Justice of New South Wales, Australia.

Community catharsis

"The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is ‘done in a corner [or] in any covert manner’. It is not enough to say that results alone will satiate the natural community desire for ‘satisfaction’. A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society’s criminal process ‘satisfy the appearance of justice’, and the appearance of justice can best be provided by allowing people to observe it." - Chief Justice Burger, in Richmond Newspapers v Virginia [1980] USSC 154; 448 US 555 (1980). He went on to say that on occasion open justice must give way to “another overriding” interest : “Our holding here today does not mean that the First Amendment rights of the public and representatives of the press are absolute … [A] trial judge, in the interests of the fair administration of justice [may] impose reasonable limitations on access to a trial.” Quite rightly, the United States First Amendment jurisprudence, however, requires an extremely strong ‘overriding interest’ to displace the presumption of openness.

Putting all who participate in the trial under intense scrutiny

“A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law." - Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593,

"But a freedom which is restricted to what judges think to be responsible or in the public interest is not freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute." - Lord Hoffman in R v Central Independent Television plc [1994] Fam 192, 202–3.

Peace, welfare and good government

“The general acceptance of judicial decisions, by citizens and by governments, which is essential for the peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence.” - Chief Justice Gleeson, 'Public Confidence in the Judiciary' (2002) 76 Australian Law Journal 558.

The following quotes from Beverly McLachlin, Chief Justice, Supreme Court of Canada, are taken from her paper titled: "Courts, Transparency and Public Confidence - To the Better Administration of Justice" [2003] 

Promoting the rule of law and the administration of justice

“In the final analysis, the open court principle is not an end in itself, but a means to promote the rule of law and the administration of justice.” 

Limits to open justice

“It ….... seems evident that in contemporary society, the open court principle, however vital, imposes important costs in terms of diminished privacy, trial fairness and maintaining the security, independence and repute of judges and the judicial system. As a result, the law has come to recognise that we must sometimes limit the open court principle.”

The open court principle furthers a variety of important values

“The open court principle furthers a variety of important values which can be grouped under three heads. 

“First, it assists in the search for truth, and is essential to the effective exercise of the right to free expression and freedom of the press. By permitting access to and dissemination of accurate information, it plays an important role in educating the public [about their rights, obligations and the role of the courts].  

“Second, openness enhances judicial accountability ["A judge’s knowledge that his or her conduct on the bench is under observation and may be broadly reported offers a strong incentive to avoid any perception of bias and to ensure that trial fairness is respected. Similarly, the awareness of police officers and public prosecutors that their acts will be scrutinised in open court helps ensure fair conduct and may elicit public pressure to correct oppressive state practices"]. 

“Finally, since openness permits the community to see that justice is done, it has a therapeutic function. 

“A single unifying purpose animates all these benefits of the open court principle – the preservation of public confidence in the administration of justice. By promoting and preserving public confidence in the judicial system, the open court principle serves to maintain the authority of the courts and the rule of law in a civil society.”

THE INTERNET:

Thus, quintessential to the rule of law are open justice, legal system transparency and accountability, and holistic societal engagement to ensure trust and assist appropriate reform.

By introducing an internet-based legal system adjunct, OpenTrial adds a new dimension which changes the dynamics surrounding dysfunctional legal systems. Exposure to public scrutiny permits pressure for justice and reform to come from outside these systems, thus countering resistance to change from within by those with a vested interest in the status quo. 

OpenTrial views societal engagement and ownership as essential for the rule of law to take hold in developing countries and, thus, the upholding of human rights. The internet makes possible for the first time the necessary transparency-driven accountability of not only the judiciary, but the police and prosecution service too, and, thus, offers a huge opportunity.

To ensure dysfunctional legal systems adapt better to their societies, reform and begin to operate effectively, transparency of their workings must be enhanced so that domestic civil pressure can bring about necessary and appropriate changes. In this way weak rule of law can be primarily and far more cost-effectively addressed by means of local societal pressure, rather than externally designed programmes.

The internet is the ideal vehicle for this, particularly as Web 2.0, for the first time, makes possible user-centred design, interactive information sharing, digital interoperability and collaboration. This means that the recommendations in Transparency International’s ‘Global Corruption Report – Corruption in Judicial Systems’ of 2007, to combat corruption in judicial systems by addressing four key problem areas - judicial appointments; terms and conditions; accountability and discipline; and transparency – now have a medium for implementation.  All these relate to judicial systems, but they apply equally to legal systems as a whole, including the police and prosecution service.

Each fully populated OpenTrial country website would make it possible for the public to view reports and analyses on the judiciary, police and prosecution service; to search data against police, prosecutors and judges using keywords; to track the careers of legal system officials; to post details of court hearings online; to promote greater public awareness of legal proceedings, etc. and, in Stage 2, to view case records and documents, evidential and in-custody photographs, videos of court proceedings, legal archives, etc. 

Exposure of this type helps improve the likelihood of justice being done by acting as a check on the functioning of legal systems and the conduct of those who staff them. In addition, social networking has the potential to strengthen pro-justice communities and networks of NGOs through such means as moderated fora, listservs, bulletins, online letters/petitions, advice columns and comment. 

OPENTRIAL ENDORSEMENTS

The OpenTrial approach is not only in compliance with the recommendations of Transparency International, but is also endorsed by Dr. Edgardo Buscaglia, Director, International Law and Economic Development Center and Senior Law and Economics Scholar at Columbia University, Professor Roy A. Schotland of the Georgetown Law Center, Washington D.C., Professor Dennis Töllborg, professor in legal science at Gothenburg Research Institute (GRI), University of Gothenburg, etc. Furthermore, the distinguished South African former senior judge and current Co-Chair of the International Bar Association's Rule of Law Action Group, Richard Goldstone, says of OpenTrial that, with the support and cooperation of both the judiciary and government in question, "the project obviously has great potential for advancing the rule of law." 

Conversely, OpenTrial endorses the conclusions of Professor Ronald J. Daniels, President of the Johns Hopkins University, and Professor Michael J. Trebilcock, of the University of Toronto, in their paper, "The Political Economy of Rule of Law Reform in Developing Countries", "Rule of law advocates," they advise, "ought to have regard to the following principles and priorities:

• The need for meaningful, independent, and transparent monitoring of the performance of domestic rule of law institutions
• The need to harness the political pressure that can exerted by certain domestic and foreign interest groups in favour of good and durable rule of law reforms
• The need for foreign governments and international organisations to bolster pressure brought by domestic reformers by conditioning other types of desired benefits on meaningful rule of law reform
• The need for persistent, clear, and pervasive international reinforcement of the normative value of good rule of law institutions"

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