Lawyer Sanjay Bhuckory has called for cases at the Supreme Court to be broadcast to open up the courts more to the public. So what is stopping the judiciary from opening themselves up to the cameras? And is it a good idea?

Is it a good idea?

Lawyer Sanjay Bhuckory in the latest issue of the newsletter published by the Mauritius Bar Association has asked that the Supreme Court opens itself up more to the public through allowing its proceedings to the broadcast to the public. Doing this, the Mauritian judiciary would follow the example of other courts in the US, Canada, UK, Brazil and South Africa. 

So is opening up the courtroom to the public via video cameras a good idea? “I am all for it because there is a perception within the public that the behaviour of some within the judiciary is not compatible with the office”, argues former Supreme Court judge Vinod Boolell. “If everything is broadcast to the public, then judges themselves will have to be more careful.” The benefit to the public, Boolell adds, “is that they will have an idea of the way that the courts function.” Although this idea is yet to be debated within the judiciary, this is not the first call to come from the outside. Back in 2011, the Director of Public Prosecutions, Satyajit Boolell, made a similar call. Shortly afterwards, a preliminary report on the media penned by Geoffrey Robertson in April 2013 also broached the idea. The Roberston report pointed to a glaring contradiction couched within the Mauritian Constitution: on the one hand, section 10 (9) of the Constitution posited that the working of justice must be as open as possible: “All proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.” In the very next section however (section 10(10)), the Constitution states that judges can close the doors of the judiciary to the public whenever they consider it “expedient” (not “necessary”) to do so. 

According to Robertson, this contradiction permits “courts to close their doors on reporters whenever the judge thinks it“expedient” so to do. It was a mistake – one of the very few that the distinguished draftsmen of the Constitution made – not to restrict court secrecy to cases where this is “necessary” for justice to be done”. By opening up the courts by law to greater public scrutiny and defining the rare instances where courts can shield cases from public view, would Roberston argued, “would provide better protection for media freedom than is enjoyed by countries in Europe”. While the Robertson report was pushing for allowing greater media scrutiny over the workings of the judiciary, the calls by the DPP and Bhuckory, only take this same principle further by allowing the public itself to follow what is going on in the courtroom.

Not all the courts…

This call to open the courts to TV cameras, however, is not as sweeping as it sounds. In other jurisdictions, resistance to the idea has stemmed from ideas that televising trials could end up in media circuses, or witnesses being intimidated or influenced by what they see on TV or lawyers turning the courtroom into a political platform and grandstanding for the public. This was something that the DPP recognized back in 2011:“Court cases should on no account be turned into soap operas. Members of the bar should not use the opportunity of a wider audience to advance a cause other than one related to the case of their client.” 

It is with these risks in mind that Bhuckory argues that only the higher appellate courts be opened up to tv cameras to begin with – such as the Supreme Court which usually hears appeals from other cases, where no witnesses are heard, but the whole proceeding is dominated by arguments about points of law. “In courts where witnesses are heard, this can lead to undue pressure on witnesses. We are not ready for that yet. But it can be used for appellate trials and for cases concerning the Constitution”, Bhuckory argues. In many ways, this is the same call that the DPP made in 2011 where he stated:“We could start by projecting the lights of the TV cameras in the appellate division of the Supreme Court where witnesses are not heard. The next step may well be to allow TV cameras in the courtroom when the judge is about to deliver his sentence.”

The top-down example

In many ways, the demand to open up parts of the judiciary to greater public scrutiny via broadcasting trials should not be as controversial as it first appears. That’s because the highest court in the Mauritian legal system, the Privy Council in London, already broadcasts it’s cases over the internet and UK television. Since 2009, when the UK’s judiciary was reformed and a Supreme Court was established – to replace the House of Lords which was a parliamentary body and it hearing cases was viewed as a violation of the separation of powers – the Privy Council was shifted into the same building as the newly-established Supreme Court in the UK. And like the Supreme Court, it too broadcast its proceedings to British households and the internet. “When I appeared in a case there, they had just introduced these live broadcasts. If our ultimate court of appeal can do that, why cannot we do it here for courts in Mauritius?”, asks Bhuckory. 

This institutional inertia within the Mauritius-based judiciary has led to a rather ridiculous situation where cases from Mauritius going to the Privy Council are beamed directly to UK households, whereas Mauritians have to follow it over the internet. And in high-profile trials, its only at the Privy Council that the vast majority of the Mauritian public can get acquainted with the details of a case. Take for example the Medpoint case. While it meandered its way through the Intermediate and Supreme Courts in Mauritius, the only members of the public able to follow the case in detail were restricted to those who could physically go and find a place in a packed courtroom to follow the case. It was only when it reached the Privy Council that any member of the Mauritian public could follow a case that could have had such serious potential ramifications on their own politics. “The Privy Council has already set the scene and the precedent for televising such trials. So there is no reason for courts based in Mauritius not to follow suit”, Bhuckory adds.

Can the Judiciary decide this on its own?

Opening the Supreme Court and constitutional cases to the glare of the public is something that the judiciary itself can decide to do, without having to wait for politicians or the National Assembly to decide on this question. “This is an administrative decision that can be taken after consulting with the Attorney General, the Solicitor General and the Chief Justice”, argues Boolell. “ This is not something that Parliament has to decide on and the judiciary does not need Parliament’s approval for that.” He cites the example of the Mauritian Parliament itself which began broadcasting its proceedings in 2016. It started beaming Parliament live to Mauritian television screens, not due to a law being passed, but after a select committee headed by Nando Bodha had come up with a report in September 2015 and subsequently, rules governing just what, and how, parliamentary business can be broadcast to the public. 

And there is precedent for the Mauritian courts taking farreaching decisions on their own. Back in April 2020, while the midst of the Covid-19 pandemic that shuttered the courts as part of a nation-wide lockdown, radio station Top Fm was embroiled in a legal fight against the Independent Broadcasting Authority (IBA). The IBA wanted to sanction Top Fm for comments made by the unionist Jack Bizlall on one of its programmes criticizing the Indian Prime Minister. The court got around the lockdown problem by allowing – for the first time in Mauritian legal history – a case to be heard exclusively online; with documents uploaded and submitted online and lawyers arguing their case in front of judges via zoom calls. Previously, while provisions existed to hear video testimony of detainees in bail hearings, sexual offense cases or piracy cases, these were the exception, with the trial itself – with judges and lawyers – being physically present in a courtroom. 2020 saw the first example of a case being heard entirely online. Significantly, the Supreme Court did this without waiting for a law to be passed in Parliament or the Supreme Court coming up with new rules to govern its procedure. 

If in 2020 the judiciary could respond to the needs of the times and technology on its own when it came to conducting trial hearings online, there is little that is really stopping it from going a step further and allowing cases from the Supreme Court – and constitutionally important cases that could impact the wider public – from simply opening itself to the TV camera. “Trials are supposed to be open to the public,” concludes Bhuckory, “All this will do is simply extent this further to an even greater section of the public”.