Unesco’s invitation to speak at an event associated with the Judicial Dialogue in Uganda last month included a request for practical ways in which the judiciary could ‘make life easier’ for members of the media who write about the courts. Here are some of the suggestions put to senior judges, and that made for interesting discussion.
Judicial accountability takes on an additional dimension in an era of online access. Sure, judges are held accountable through the judgments they write. But in an era of online access those judgments need to be available and in the public domain as soon as possible.
Given regional blocs like SADC in which judicial decisions in one country can be of persuasive value in another, and given regional courts whose decisions may be even stronger authority, there is now a much greater need than before for judgments to be available quickly and through an online platform that anyone can access.
Ordinary people, reporters, lawyers, judges and courts in other parts of the world as well as in the home jurisdiction, are all potential readers who could be waiting for a new decision. Judges can reach this growing audience by the country Legal Information Institutes (LIIs) on AfricanLII. These are helpful, professional sites with free access for anyone. They are how people from elsewhere get to find the work that you and your fellow judges are doing, to report on them for the media, to make them available for reference and citation in legal work if appropriate, and for judges to use by way of quotation in their own decisions.
As a journalist, writing about the courts, I would urge you to make use of this broader facility so that your decisions and those of your colleagues become quickly available and accessible to everyone, and not just in your home country.
On the broader question of relations between the media and the judiciary, there have been several attempts in South Africa to have members of both sides meet to discuss relevant problems and I would like to explain the issues likely to be raised in a meeting of this kind.
Journalists will ask for greater access not just to court, but also to people, documents and photos. Just as important, they want clear rules about access and to know when and why it will be denied.
- What about photographs, filming and recordings in court? When will reporters be allowed to take still photos, to film or make audio recordings in court? What process should be followed to obtain permission?
- Clear rules are needed on access to documents before, during and after matters are heard or argued. Clarity is also needed on when the media may access documents for reporting after papers are filed in court, but before a matter is argued or heard.
- Who at the court should be approached by the media for official comment or for help with problems? If there are problems and the designated person refuses to help or comment, is there anyone above him or her, to whom the media may appeal for assistance?
- It is essential that the system for getting access and comment should be quick and easy. In South Africa at the moment, for example, it is a difficult and lengthy process to get comment from the Judicial Service Commission or from the Chief Justice.
Generally such a meeting will also discuss media summaries. These may be very helpful, especially when newsrooms are quite junior and without a legal specialist. However, it is important that the media summary and the judgment should be available at the same time.
From examples of where such a meeting between the local media and the judiciary actually took place, reports indicate that once these and related issues are sorted out, the working relationship improved greatly.
At the Judicial Dialogue we also discussed a number of other practicalities.
I urged judges to number their paragraphs. There are a number of jurisdictions where this is not the practice, and it adds at least an hour to the time taken to write a report.
It is important that courts should indicate, on the final judgment itself, both the actual date the decision was officially delivered, and the date/s on which the matter was heard.
Since decisions may now be accessed and used in other jurisdictions it would be very useful if the judiciary’s website had a list of the correct full first name and surname of all the judges in that jurisdiction. It would also help prevent embarrassing mistakes if the website included a photograph of each judge, clearly labelled as to name and title, so that people from outside the country know who is who. It is common in many countries to include such pictures and information on a judicial website and a case could be made for this to be viewed as best practice. There were however, strong views for and against photographs with a couple of judges citing security concerns.
It would also be helpful if judges carefully considered the language they routinely use in court about women and gender-based violence, and if they developed a protocol for routine redaction of judicial decisions. This is particularly important when it comes to any case involving children as well as adult victims of sexual violence.
Many times it seems that judges might not have thought this through. Maybe the child is identified throughout. Or maybe there is some effort to protect the child’s identity by not naming him or her on the front page of the decision. But if you read just a few paragraphs into the judgment you find the name or some other details that make it very easy for the child to be identified.
And what about naming a person, adult or child, who has been raped? Or a couple involved in a divorce?
If there are no existing rules or laws on these issues in your jurisdiction, the question could be put on the agenda for discussions to reach agreement between the courts and the media. Sensitivity on such matters is really important and the media and judiciary have a crucial, complementary role to play.