Judicial hearings should be accessible to the public and allowed to be broadcast live, says FXI
FXI submission argues for JSC hearings into Hlophe complaint to be public
Earlier today, the Freedom of Expression Institute (FXI) made a submission to the Judicial Services Commission (JSC) calling for the hearing to investigate the alleged misconduct of the Constitutional Court Judges and Cape Judge President John Hlophe to be held in public. The FXI further supported the broadcast media's right to broadcast the hearing live. The Constitutional Court has laid a complaint with the JSC alleging that Hlophe attempted to influence two judges hearing cases involving African National Congress (ANC) President Jacob Zuma, in favour of Zuma. In response, Hlophe has laid a complaint against the judges.
The FXI made this call in a submission in response to the JSC's notification of 14 July 2008 giving all interested parties an opportunity to address two issues: firstly, whether the pending hearing should be public; and secondly, if they are to be public, what media coverage should be permitted, provided the Judicial Service Commission with its written submission.
In its submission, the FXI argued that the hearing is of considerable public importance, given that it may well lead to the impeachment either of Judge Hlophe or the Constitutional Court judges. Given the seriousness of the matter, all details of the hearing should be accessible to the general public as part of their right to receive information under section 16 of the Constitution. The FXI also noted that the JSC's own rules of procedure for disciplinary enquiries supports the holding of public hearings, which may be closed only if good cause is shown for doing so. The FXI identified the general grounds for closing hearings, and argued that these grounds do not apply in this case.
The FXI argued that were the hearings to be held in camera, this would lead to speculation and allegations of an attempted cover up, whether or not there was any foundation for such allegations. This is an opportunity to demonstrate to the public at large that the JSC will deal fairly, justly and evenly with any allegations of misconduct.
The allegations by the judges have struck at the core of the independence of the judiciary and the integrity of the justice system. There could, in the FXI's view, be few issues of greater public significance for the public's confidence in the judiciary than the determination of the JSC regarding the allegations of misconduct. It is, therefore, the dictates of legitimate public interest, as opposed to pure sensation seeking, which justify the holding of any formal hearings in the public domain.
The FXI also made specific submissions about the right of the media to cover the hearings, especially the broadcast media's right to broadcast the proceedings live. Any attempt to bar the media from covering the hearings, will interfere with media freedom and the public's right to know.
Live broadcasts will give the public the opportunity to assess the situation for themselves without significant editorial alteration. Live broadcasts will also strengthen public trust both in the judiciary and in the JSC itself. A further advantage of live broadcasting is that the public are given the opportunity to assess the general demeanour of witnesses, their vocal intonations, hesitancy and the conviction with which they delivered their evidence. Live broadcasting - whether it by radio or television - would allow people who do not or cannot read newspapers proper access to the information.
All of the above reasons in favour of live broadcasting would help to increase public awareness of the nature of the Judiciary and make the public far more critical of the conduct of judges and would also thus assist the media in executing its duty to properly inform the public. This would then lead to a further extension of checks and balances on the abuse of power and would result in judicial officials being far more wary of making politically influenced decisions.
The FXI trusts that the JSC will pursue a line of conduct that promotes the spirit of the Constitution, and hold open hearings.
The full FXI submission to the JSC can be accessed from http://www.fxi.org.za