Legal Eagle : Trafigura ruling a victory for democracy
The Court of Appeal, in a judgment delivered last Friday in the Trafigura case, has reaffirmed a most sacred and fundamental principle in our judicial system, that is to say, that the principle of open justice is the norm in Jamaica.
The principle has a long history at common law and is so well accepted as the rule to the extent that in-camera, in chambers, secret and private proceedings are considered the exceptions.
The decision by the Court of Appeal clears the way for former People's National Party President Portia Simpson Miller and her colleagues to answer questions under oath in open court about a $31-million donation made to the PNP by the Dutch firm Trafigura Beheer while it formed the government more than a decade ago.
HELD IN PUBLIC
Section 16 of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 specifically provides that "All proceedings of every court and proceedings relating to the determination of the existence or the extent of a person's civil rights or obligations before any court or other authority, including the announcement of the decision of the court or authority, shall be held in public".
Exceptions to the general rule developed over many years. For instance, family matters are generally held in the judge's chambers to ensure that the families, including children who have no say in the indiscretions of their parents, are protected. Similarly, criminal matters touching and concerning rape, carnal abuse and buggery are held in private to protect the vulnerable and innocent, some of whom are minors.
The recent affirmation by the Court of Appeal is timely. For some time now, it seems as if the right to an open justice system is under attack. A good example is the fact that due to security concerns, persons visiting the Supreme Court are subject to search and a barrage of questions at the entrance to the buildings. No doubt, this is necessary for security reasons, but the security procedure should not send a signal that only persons whose names are on the court list, bearers and lawyers can enter the building.
We must never forget that openness and public access to our courts guarantee the integrity of the judicial process, as the public must be convinced that justice is not dispense in an arbitrary way.