Elections on Trial: The Need for Open Justice

The principle of ‘open justice’ – articulated most clearly in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) – requires that courts and tribunals conduct their business publicly to safeguard against judicial bias, unfairness and incompetence, unless there are overriding issues of security, privacy, or prejudice. While some argue that the open justice principle is satisfied by open hearings and by written judgments being fully accessible to the public as of right, this paper explores the notion that open justice must be interpreted more broadly in the field of election dispute resolution. Election litigation considers fundamental rights, but frequently must be adjudicated in compressed timeframes and under intense political pressure and scrutiny. Given this unique context, the requirement for public confidence in the impartial administration of justice is acute, and “justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R v Sussex JJ Ex p McCarthy [1924] 1 KB 256, 259 per Lord Hewart). As such, for any institution dealing with the adjudication and resolution of election disputes, there must be a requirement for a high degree of transparency, independence and accountability that includes public access to case records in real time as an electoral dispute is being investigated and adjudicated. Complicating this heightened need for open justice is the fact that often the institution responsible for resolving many sensitive categories of election disputes is the election management body (EMB), operating in a quasi-judicial capacity. As such, traditional court systems that protect open justice principles, such as case management systems, may be missing. Through cross-national comparative studies, this paper will identify how six countries address the open justice concept in electoral disputes, and will outline the need for further research into causal linkages between open justice mechanisms and the acceptance of election results.