Systemically Corruption-Proofing Judicial Systems and Courts

To: Mr. Cobus de Swardt and Mr. Miklos Marschall, Managing Director and Deputy Director, Transparency International

Corruption can only be diverted, pushed back, or temporarily controlled using checks, inquiries, and stopgap measures of the kind Transparency International advocates and employs. Corruption cannot be eliminated with such techniques nor can a system be modified towards making it corruption-proof. To try to eliminate corruption, other than ‘eliminating’ venal and lawless persons of moral turpitude, human systems must be re-engineered such that the system itself is hostile to corruption and will not allow it to occur, let alone thrive, within that system.

Corrupt activity, like any criminal activity, is drawn to the darkness and shuns the light. Corrupt activity will not occur where the perpetrators know that their misdeeds may be exposed by audio or video. Therefore, one essential element of a corruption-proof system is the presence of audio- and video-recording devices.

One of the main dens of corruption in many or most countries are the courts and the judiciaries.

All too often judges falsify their reasons and decisions, but who can tell? After all, judges know that nobody will, or even can, audit and inspect the oral testimony, sworn evidence, and the at-law arguments put forth by the parties. As a result, it is virtually impossible to inquire whether or not some or another reasons or decision is falsified; judges know that their reasons and decisions exist in a vacuum and are read in a vacuum, and that what was said during a proceeding will never be replayed. As a result, it is not uncommon for corrupt judges to distort or misrepresent testimony or evidence, incorporate false and disproven accusations, and/or altogether ignore and suppress winning at-law arguments so as to fabricate a decision in favour of the preferred party.

Court premises and courtrooms must be seen as Public Space – after all, they are paid for by public funds and, unlike other branches of government, are also public fora. With the exception of a rare proceeding related to national security and state secrets, there is no viable argument to prohibit the unobtrusive use of audio- and video-recording devices. If a litigant or a member of the public can see it and hear it, then he should be able to video-record it and audio-record it. Using recording devices is the right of any and every citizen, especially the right of a litigant who may need to protect his reputation, and prove that some or another slur or slander on his character is false, and that the judge inverted the facts and twisted the truth. Yet we know that many or most judiciaries purport to prohibit the use of recording devices in court. Why – what is there to hide? — Aha! Some wise man said that if you want the right answer then you must ask the right question. With the right question just asked, the right answer surely reveals itself. There is something to hide; something that must be hidden.

One would be surprised at how often the unpleasant but distinct smell of corruption briefly pervades a courtroom added to which the simple fact is that far too many courts and far too many judiciaries function as quasi-Star Chambers or After-the-Fact Star Chambers. Leaving aside other concerns about Star Chamber-related corruption to focus on the issue at hand, “What happens in this room stays in this room” is not exactly an Enlightenment-Age credo and surely it is one that Transparency International would oppose. As ought a judiciary of integrity to. Key word, ought.

And so, one must wonder why any judge of rectitude would fear recording devices and seek to prohibit them. Think about it. Recording devices are not sharpened knives or rotten eggs. An angry litigant does not stab his adversary with a recording device nor does he throw a recording device at a judge. The fact is that corrupt judges and corrupt judiciaries are all too aware that recording devices are not a weapon with which a litigant can mount any type of attack; recording devices are akin to shields of protection; they can be used as facts-reflecting mirrors; they are similar to floodlamps in a dark alley in a rough part of town. It is for these reasons that most courts and most judiciaries fear and ban recording devices. Courts and judiciaries of integrity and upright judges of rectitude would not care two hoots about them.

Thus, building block one towards the goal of re-engineering the courts’ and judiciaries’ very systems to be hostile to corruption, and for courts and judiciaries to tend towards being systemically corruption-proof, is to have no prohibition or bar on unobtrusive audio- and video-recording devices in court. Then, any courtroom in any judiciary may be occupied by a litigant or observer with a recording device. Corrupt parties as much as corrupt judges fear exposure, and an audio-recording snippet is a quickfire way to expose corruption or that which has the unmistakable stench of corruption. But, as should be clear, this de-prohibition (and implicit encouragement) would only be building block one.

Kersasp Shekhdar believes the quill is mightier than the A-bomb. Kersasp can be reached at: Read other articles by Kersasp.