Fatima Zahra Ahasan Raisa
LL.B. (Hon’s), second year
Department of Law
University of Chittagong.
The prime duty of a court includes ensuring administration of justice for mass people. As common law system prevails in our country, the judicial system here is basically conducted in open court. It is stated in Article 35(3) of our constitution that, “Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.”
To safeguard rights of people and to ensure justice, an independent and transparent court is a must. So, for this reason, it is extremely important that the judicial system in open. To complete the whole judicial process in an open court is called public trial or open trial. A person is entitled to get justice in open trial and this right is recognized in Article 35 (3) of our constitution. Unlike public trial, another type of judicial process prevails, namely, camera trial or secret trial.
Camera trial is a legal term that means in private. It refers to the process in court cases where the public and press are not allowed to observe the procedure. It is a secret trial, which is unknown to the public. Camera trial is dissimilar to trial in open court where all parties and witnesses testify in a public court room and the lawyers publicly present their arguments. So, the entire proceedings in a camera trial will be held in presence of the parties (Victim and accused) their lawyers and witnesses. Now, a question might arise, as the constitution has recognized the public trial as a fundamental rights, so if ensuring justice by camera trial is a violation of fundamental rights or not? The answer will be absolutely ‘No’. As because it is mentioned in Article 35(6) of the constitution that, “Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.” Thus, if any law mentions about camera trial it won’t be a violation of recognized fundamental rights of the constitution. Keeping in consideration the matter of ensuring justice, “The Nari O Shishu Nirjatan Domon Ain 2000”- mentions about camera trial in rape cases. It is mentioned in section 20(6) of the Act that, “In case of adjudication of any offence under section 9, the Tribunal on an application, can examine, if thinks fit, a woman raped or any witness in a closed door room.”
In Viqarunnisa rape case, the Dhaka court fixed for the recording of the testimony of a student of Viqarunnisa Noon School and College in a private room (camera trial), who fell victim to sexual abuse by her teacher Parimal Joydhar.
Victim’s counsel filed the petition citing that, “She was a student and the unpleasant questions might arise at the courtroom which would be harassment for her and also the family members. So she needed the camera trial for deposition and cross examination”- (source:- Dhaka Tribune, 4th July 2013)
Thus, to hold a trial in camera refers to exclude all the spectators or those who are not legally required in the court room. This maybe done for necessity or maintaining privacy or secrecy. This may be due to the state laws or due to discretion of the judge.
Section 20(6) of Nari O Shishu Nirjatan Domon Ain- 2000 is undoubtedly a landmark to ensure justice. But unfortunately, reality is not completely in favour of camera trial. There are many who still now doesn’t admit the importance of camera trial. But for the sake of ensuring proper justice, rape cases must be conducted in camera trial. Taking the deposition of a rape victim is like raping her for the second time. In rape cases, each and everything is asked in detail. So, in open trial, the access of general public can make the victim feel awkward to express everything in detail. It is undoubtedly embarrassing and disgraceful for the girl. During cross-examination by the opponent lawyer the victim might fell into an embarrassing situation. In fact, to hear the rape cases, the curious public make crowd in the court. In such a situation, justice in hindered. So, in such cases, camera trial makes it easy for a victim to give deposition. There is also mention of camera trial in family matters in the Family Courts Ordinance 1985.
It is mentioned in section- 11 of the Act that,
(1) A family court may, if it so deems fit, hold the whole or any part of the proceedings under this ordinance in camera.
(2) Where both the parties to the suit request the court to hold the proceedings in camera, the court shall do so.
In matrimonial cases like restitution of conjugal rights, divorce or judicial separation there remains matters of husband and wife which are private. The common grounds mentioned in section-2 of Dissolution of Muslim Marriage Act. 1939 are cruelty, desertion, impotency adultery etc which are directly connected with the reputation of the parties. It exposes the secrecy of marital life which is embarrassing and disrespectful for the couple. It is also mentioned in section- 23 of Domestic Violence Act that with the consent of parties or if the court thinks fit can hold the proceedings in camera trial.
Besides, in issues where national security is concerned and if the judge thinks necessary can hold the proceedings in camera trial. Like in recent days, a state has to deal with cases like terrorism, where open justice can hinder security.
Thus, open trial is in which the public can access when the case is going on. In an open trial, no one will stop the public to enter in the courtroom. The entrance of media is allowed in open trial. This system of open trial is to ensure transparency in judicial system. Jurist Jeremy Bentham said that, “Publicity is the very soul of justice. It keeps the judge, while trying under law”. Open justice with the presence of general public and media characterizes openness and transparency. It is stated as a ‘fundamental right’ guaranteeing liberty and tries to make the public and press understand what happens in the court. It is an underlying principle in British law and trace back its history to decision made before the signing of Magna Carta in 1215. This concept of open court is so prominent and widely accepted as it ensures judicial openness. Under common law, greater weight is given to open court to build public confidence.
Though open court safeguards the fairness of trial but there are cases in which it is extremely necessary that the court room is not open to the public or media. It is exception to the rule of open justice. Unlike a normal courtroom which is open to the general public and which permits anyone to come and observe the proceedings. The main aim of camera trial is to ensure privacy rights.
In criminal cases like sexual abuse or where a child is a victim or accused or where young offenders are involved, it is extremely necessary to maintain privacy. The presence of public and press can result in increased stress of accused.
Right to privacy is also mentioned in convention of Human Rights, which states, Everyone has the right to respect for his private and family life, his home and his correspondence.
Thus, it is crystal clear that how crucial is the need of camera trial in a judicial system and a democratic society to protect the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals (as there might be a risk of life of the witness if the trial is public) or for the protection of rights and freedom of others. It is also clear that camera trial is neither an obstacle towards ensuring justice nor a violation of fundamental rights.
Convener-Bangladesh Human Rights Foundation (BHRF), Student Council, Chittagong Chapter.