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By Ian McDougall, LexisNexis
In my previous blog I described what I called a “warning from history.” In times of crisis, emergency measures must be taken. Nobody seriously disputes that. Sometimes extreme measures have to be taken that, in “peacetime,” would never be proposed and accepted.
Liberty is a moving target in a modern society. When people use the term liberty they mean various things. Some people take it to mean the right to do whatever they want. I think most people accept the approach taken by the philosopher John Locke:
“Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.”
I think we might venture to add another proviso here, especially in current times, which would be: “(3) and not take actions which would be harmful to others unless sanctioned by lawful authority.”
However, the point is that liberty in any reasonable society, is not unconstrained. There are limits to what is allowed. How we manage those limits therefore becomes of utmost importance and it is here that the principles of the Rule of Law play a crucial role.
In the current Covid-19 pandemic, we have had to undergo severe restrictions on our right to go about our ordinary business. I have described to friends the current limitations as a novelty that is now beginning to feel like House Arrest! However, most people understand that in a crisis unusual measures are called for.
Once we accept that, the important question becomes how do we administer the unusual measures? Under the LexisNexis definition of the Rule of Law we have four pillars:
You will see, that is not a million miles away from John Locke. But in a crisis, there is a danger that expediency overpowers these pillars. That is the risk, and the mistake, I alluded to in my previous blog. What is the reason for the Independent Judiciary element? It is so that all people with power are subject to oversight. It prevents arbitrary decision making in the administration and exercise of power.
For centuries the principle has been that an allegation of wrongdoing must be supported by evidence, that it must be subject to a process of challenge and that punishment must follow a finding of responsibility according to law. We specifically do not allow a person to be a judge in their own cause. So, this places a huge responsibility on the shoulders of the judiciary. If we are to set them up as the administrators of the Rule of Law, even as “guardians” of the Rule of Law, then we must also make sure that they are also subject to the Rule of Law. Remember, nobody is above the Rule of Law and that includes the judiciary that administers it.
Unsupervised power leads to bad consequences. I will tell you a story from a long time ago. I attended a small court hearing as the advocate for the claimant. It was in the County Court in the UK. This is a court established by statute to deal with smaller types of claim. The hearing was a procedural hearing before (as he was called back then) a “Registrar.” They are now called “District Judges.” Before anyone had opened their mouths, the registrar began by saying this to the defendant:
“Right, I’ve looked at the papers and I can see what is going on here. You clearly owe this money and you can save yourself a lot of time and costs by just paying up now. If you don’t, I’ll probably find against you and that will mean costs and interest. Stop messing about and wasting my time with this and pay up.”
I admit to some very improper, but I hope you will agree understandable, thoughts at this stage. I thought, “Great, I’ve practically won this case without having to do very much! Happy client, good outcome!” It was a bit later when the problems with that hearing struck me. How would I have felt if the judge had treated me like that? What happened to the principle of a fair hearing? It left an uncomfortable feeling.
Then I thought about why it had happened. The hearing was conducted in a private room (not an open court). No members of the public could attend. The judge knew that the chances of anyone appealing the decision was next to zero. In other words, he had no supervision, no oversight and a basically unchallenged decision; he could behave however he wanted without consequence. I believe it led to the kind of behavior I have described. It was the unsupervised exercise of judicial power and it led to problems.
So what has happened during the Covid-19 pandemic? We have seen much praise for the switch to “online hearings” by the courts, the wonderfully speedy way in which they have tried to adapt to the new circumstances by using technology to hold hearings by video meetings. I support the adoption of new technology to facilitate access to the courts, the speedy resolution of disputes and the continuation of the administration of justice. But there is another dangerous consequence too. We have created virtual, online, private rooms. The same types of rooms where the judge in my case felt he could act with impunity. In the absence of a court room open to the public, we are left with the secret administration of justice. If justice has also to be seen to be done, then we must guard against the implementation of technology that actively discourages wider participation and oversight.
So during the current crisis, efforts must be made to open up online hearings to the public. Secret justice is not justice. When the courts fully open again, we have the technology to allow everyone to watch a court hearing; web cams and microphones are cheap and could be deployed easily. No court, ever again, should be unsupervised.
Then there are two avenues of redress that could be open to everyone dealing with the court; firstly, do they have redress of appeal on the merits of the case. Secondly, was justice administered in the right way. Did they get a fair hearing and were they treated with respect. For the second, a review of the recording of a hearing would be the simplest way to ensure that everyone who interacts with the justice system is treated equally (the first Rule of Law limb) and with respect. This can only lead to the improved respect for the process and the people who administer it.
Ian McDougall is general counsel of LexisNexis Legal & Professional. To learn more about the nonprofit LexisNexis Rule of Law Foundation, click here: https://www.lexisnexisrolfoundation.org/
Great article Ian!
Online hearings could be the issue if the example you give in your piece of a clerk driving cases improperly through a private caucus room setting becomes a reality. The online hearings are far not new. The field of online dispute resolution has been around for two decades and courts have resisted the adoption of the technology for a variety of reasons. COVID 19 changed all that overnight and ZOOM, among others, became the tool of choice for many courts in the short term. The issues you raise of power imbalances using new technologies are real, and groups like ICODR, NCTDR, IMI and the ABA Dispute Resolution section have been developing ethical frameworks for these technologies for almost as long as the technology has been around. The adage that laws and procedures are local needs to be adjusted in a crisis where a legal tsunami is about to unfold. Evictions, foreclosures, debt collection, force majeure clauses in contracts, wrongful death suits for negligence in handling the pandemic... the list is endless of the cases which are looming on the horizon. Universal justice care begins with an understanding of how far we have to go to make courts accessible; technology alone is not the answer as you imply - see worldjusticeproject.org/.../report-launched. Technology needs to be used properly. I have been involved with online dispute resolution projects since 2005 around the world. The US has an opportunity at hand to train the legal profession en masse how new technologies, including ODR, can be used. We must use this opportunity wisely. Jeff Aresty, president, www.internetbar.org.
Nice article -- I particularly liked the statement "We have created virtual, online, private rooms." That's a keen observation that video conferencing/chat technology which *allows* us to interact with anyone across the globe does not in any way *ensure* transparency, especially to the public . Internet communications technology is neutral, and clearly it's up to *people* to ensure it is applied in a way which is consistent with laws written long before its advent. This applies both to information privacy for individuals and businesses as well as the transparency of law in court rooms.
Typo alert: "Secret justice it not justice."