The concept of open justice is vital in ensuring public confidence in the legal system. — 123rf
MALAYSIA’S justice system operates on the principle that justice must not only be done but must be seen to be done.
This notion is embedded in the country’s legal framework through Section 7 of the Criminal Procedure Code, which states, “The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open and public court to which the public generally may have access.”
Furthermore, section 15 (1) of Courts of Judicature Act 1964 states that “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”.
These provisions reflect the nation’s commitment to transparency and the principle that justice is a matter of public interest. The concept of open justice is vital in ensuring public confidence in the legal system. Section 7 ensures that court proceedings are open to the public, allowing them to witness and scrutinise the administration of justice. This transparency acts as a safeguard against potential abuses, ensuring that decisions are based on the law and not influenced by external factors. It also reinforces the accountability of judges, lawyers, and all parties involved in the judicial process.
The openness of the courts prevents the perception of injustice and curbs any suspicion of corruption, bias, or wrongful convictions. By allowing the public to witness how justice is carried out, the courts reinforce trust in their decisions. This principle is not unique to Malaysia; it is a hallmark of many judicial systems worldwide, particularly in common law jurisdictions.
In modern times, the principle of open justice has evolved alongside technological advancements. The introduction of public recording and live broadcasting of court proceedings has emerged as a positive step toward further enhancing transparency in the justice system.
With the rise of digital media, there is an increasing demand for the public to access court proceedings remotely. This has led to calls for live streaming and public recordings, which can provide an even greater level of transparency than traditional open court hearings. In fact, in many countries, with the advent of communication technologies, live broadcasting of court proceedings have become commonplace especially in high profile cases.
This prevents media distortion and provides the public with an unfiltered view of the trial process, thereby fostering a better understanding of the justice system. Moreover, live broadcasts and recordings help demystify court procedures. Legal processes can often appear complex and intimidating, but by making these proceedings more accessible to the public, people can become more informed about how the legal system operates. This can ultimately lead to greater respect for the rule of law and a more engaged citizenry.
Public confidence in the judiciary is bolstered when the system is perceived as transparent and accountable. The ability to witness court proceedings, either in person or through live broadcasts, assures the public that justice is being administered fairly and without prejudice.
In an era where trust in institutions is sometimes in question, such measures serve to strengthen the credibility of the judiciary. Hence, many lawyers were aghast when it was reported recently that the Bar Council issued warnings to the lawyers and chambering students not to publicise recordings of court proceedings online, on social media, or in any other form or manner. This warning was contained in a circular issued in August 2024. This warning is understandable as it was purportedly based on a circular issued by the Chief Registrar of the Federal Court sometime in 2011.
What is not understandable is the relevancy of the Chief Registrar’s circular in the light of the developments in the digital media. I respectfully suggest that it be updated to reflect current technology advancements and ensure that the justice system’s core value of transparency is upheld.
While the principle of open courts is fundamental, there are exceptional circumstances where proceedings may need to be held away from the public eye. The law allows for certain cases to be conducted behind closed doors, particularly when sensitive information is involved or when public exposure could jeopardise the safety or privacy of the individuals concerned.
For example, cases involving minors, victims of sexual offences, or matters of national security may require restrictions on public access. In such situations, the courts must balance the need for transparency with the protection of vulnerable individuals and sensitive information. These exceptions are designed to ensure that the justice system does not cause harm while still maintaining the overarching principle of fairness and openness.
However, even in cases where proceedings are closed to the public, measures can still be taken to ensure that the principles of transparency and accountability are upheld. For instance, judgements can be made available to the public after the fact, and anonymised summaries of the case can be provided to ensure that justice is seen to be done without compromising the safety or privacy of those involved.
Malaysia’s justice system, with its emphasis on the open court principle, is designed to ensure judicial transparency and public confidence. The introduction of public recording and live broadcasting of court proceedings is a positive step toward enhancing this transparency and further engaging the public in the legal process. Courts around the world are increasingly adopting digital tools to make the justice system more accessible. As the public becomes more accustomed to digital access to information, the justice system must adapt to meet these expectations.
Senior lawyer Datuk Seri Dr Jahaberdeen Mohamed Yunoos is the founder of Rapera, a movement which encourages critical thinking and compassion among Malaysians. The views expressed here are entirely his own.
