International Foundation for Electoral Systems According to legal scholar Emma Griffith, open justice encapsulates a range of transparency measures, including: “the principle that an interested citizen may attend court as a spectator; the interest in promoting full, fair and accurate reporting of court proceedings; the convention that a judge publishes reasons for decisions; the capacity to access the textual records kept by a court; or the capacity to access documents filed but not yet used in court.”22 In 2014, for example, the Constitutional Court in Indonesia ensured maximum transparency in its proceedings, providing live-streamed testimony of the presidential election petition proceedings, and publicly reading out the core findings from its unanimous verdict. The principle of open justice is essential for the maintenance of public confidence in the judiciary and the administration of justice.23 In 2014 and 2015 respectively, IFES worked with the Electoral Complaints Commission (ECC) in Afghanistan and the Union Election Commission (UEC) in Myanmar to hold open hearings on election disputes for the first time, as an effort to provide more transparency and accountability in the EDR process. This was particularly important in these two countries where faith in judicial proceedings has traditionally been low, and each country was dealing with significant public trust issues as a result of their particular post-conflict and post-transition environments. As the chief justice of Canada has observed, open justice is important for four key reasons: first, it assists in the search for truth; second, it plays an important role in informing and educating the public; third, it enhances accountability and deters misconduct; and fourth, it has a therapeutic function, offering an assurance that justice has been done.24 For these reasons, open justice can be both a protective measure for judges – in that it shines a light on judicial proceedings in a way that can mitigate political pressure or intimidation – and a measure for litigants and the wider public to hold judges and arbiters accountable for their decisions. Procedural Justice and Open Justice in Practice Procedural justice and open justice are necessarily intertwined, and can at times be in tension. For example, the right to be treated fairly can be impacted by a lack of transparency that makes it difficult to track a complaint through investigation, adjudication, decision and enforcement, while the right to receive an effective remedy can be undermined by unreasonably short deadlines that leave cases unresolved or see them summarily dismissed without proper investigation. There are also certain principles that cut across the elements of procedural justice and open justice – for example, open hearings for election cases are important for transparency to the public at large, but also to ensure fairness for individuals in proceedings. The four key elements of fairness, efficiency, effectiveness and transparency are a useful lens through which to understand the components necessary for procedural justice and open justice, and to further explore how the principles of procedural justice and open justice are necessarily intertwined. 22 Emma Cunliffe, Open Justice: Concepts and Judicial Approaches, 40 FED. L. REV., 389 (2012). James Spigelman Hon. J., “Seen To Be Done” or “Seem To Be Done”?, Address at the Honk Kong Chapter of the International Law Section of the Law Council of Australia (Mar. 10, 2016). 23 24 Rt. Hon. Beverley McLachlin PC, Chief Justice of Canada, Speech on Open Justice and the Rule of Law (2014). 12