The Federal Government recently released lists of individuals suspected of looting public treasury. While some have applauded the Federal Government for these lists, others have expressed concerns over the lists on the basis that public disclosures by the Federal Government of names of corruption suspects who have not been charged to court could infringe the privacy rights and human dignity of the suspects, as well as affect seriously or ruin the private lives and professional reputation of these suspects, regardless of a later acquittal, which may not come until the final appellate stage in the Supreme Court years after the event.
In this polemic article, I argue that there is sufficient general public interest in naming corruption suspects, and that the legitimate interest of the public is wider than the interest of politicians qua politicians, of lawyers qua lawyers or of judges qua judges. After all, democracy is a form of government; it is not a lifestyle. When certain individuals hold prominent positions in a democracy, including political positions and other placements of general public importance, naming them publicly if their behaviour throws doubt on their political, legal or moral fitness for that positions is neither a pander to the baser instincts of the members of society nor a baseless allegation. Insofar as their behaviour touches upon interests which society as a whole has a legitimate interest in keeping free of morally or legally questionable conduct, their identities are relevant to the public debate about legal issues and political matters such as rates of corruption, density of prosecution and rates of conviction.
Equally important, by displaying publicly names of those who have allegedly looted the nation’s treasury, members of the public are allowed to receive relevant information about alleged looters which they can then use to make connections between items of information already in the public domain. In this way, the true position is revealed and the public can make an informed judgment. Irrespective of whether or not corruption suspects have been arrested or charged to court, the public has a legitimate interest in not being kept in the dark about the financial malfeasance and other misdeeds of fellow citizens from an open justice point of view.
Open justice is at the heart of efficient and effective legal system that delivers justice for the citizenry, and is vital to the rule of law. No doubt, there is consensus that rule of law is an ideal to which every legal system aspires, and against which it must be judged. Yet, as Lord Justice Toulson has stated in a UK Court of Appeal case, R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] Q.B. 618, at 630, “[t]he rule of law is a fine concept but fine words butter no parsnips. … In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law.” (emphasis mine). In this respect, neither legal system nor rule of law can survive without publicity, and where there is no publicity, there is no justice. The need for a legal system to scrupulously adhere to the values of justice, therefore, shows the importance of courts conducting their business publicly by disclosing skeleton arguments read by the courts if and when a request to do so, even by a non-party, is received, unless this would result in injustice.
Although the common law principle of open justice was originally meant as a check on secret trials or courts, its broad principle of exposing corrupt individuals and institutions in this instance is unquestionable. Accordingly, open justice principle can be extended mutatis mutandis to naming names of alleged looters of the nation’s treasury long before they ever reach the courtroom– which may never be –in order to incite public indignation, denounce misbehaviours and express the society’s condemnation of corrupt practices.
In many jurisdictions across the world, including Canada, New Zealand and the United Kingdom, as further exemplified in the next three paragraphs below, the law recognises such a formalistic interpretation of the open justice principle. To the extent that where open justice is at stake, presumptive equality between the right to privacy and the right to freedom of information has no substance. In other words, the principle of open justice dictates that where there is a conflict between the public’s interest in information and the privacy of the individual concerned, public’s interest must be protected against privacy rights.
In Canada, for example, relevant provisions in the Charter of Rights and Freedoms (e.g. ss. 2 and 7) emphasise the constitutional status of open justice. Thus, in R v Canadian Broadcasting Corporation 2010 ONCA 726, Sharpe JA, giving the judgment of the Court of Appeal for Ontario, said at para 28: “Even before the Charter, access to exhibits that were used to make a judicial determination, even ones introduced in the course of pre-trial proceedings and not at trial, was a well-recognised aspect of the open court principle.”
Again, in Rogers v Television New Zealand Limited [2007] NZSC 91, the Supreme Court of New Zealand considered the application of the open justice principle in a case about a police videotape of an interview with a suspect who was subsequently acquitted of murder. In the interview, Mr Rogers admitted killing the victim and re-enacted the way in which he had done so, but the interview was ruled inadmissible at his trial because of the circumstances in which it had been conducted. The respondent television company was given a copy of the videotape by the police officer in charge of the case and proposed to broadcast it. Mr Rogers obtained an injunction against the television company to prevent its broadcast, but the injunction was set aside by the Court of Appeal. The Supreme Court, by a majority of three to two, upheld the decision of the Court of Appeal, apparently to incite widespread moral indignation against the appellant.
To be concluded on Tuesday