Witnessing a show trial or seeing justice being done?

At a hearing in the case of the state against the “Reykjavík nine” on August 17th, Ragnar Aðalsteinsson, counsel to four of the accused, quoted one of the greater legal minds of England, Viscount Gordon Hewart: “Not only must Justice be done; it must also be seen to be done”. Ragnar was arguing that the case be dismissed and the judge recuse himself as the defendants could not trust his impartiality. Ragnar had learned that the judge had personally made the unprecedented request that a large police force be present at every hearing, thus in no uncertain terms declaring that he considered the defendants such a threat to the public order that they could not be allowed inside public buildings without a large police guard. Ragnar argued that the police presence had created an intolerable working environment – the police has determined who is allowed to enter the courtroom and who is not, even refusing some of the defendants entry. The trial could not be considered truly open to the public, justice could not “be seen to be done”. The original quote comes from a landmark 1924 case, and reads: “it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” That is, the foundation of a just legal system is open justice which is above suspicion, that the rule of law requires that the public be able to observe the administration of justice in the courts. The public must be able to see with its own eyes that justice is carried out without prejudice, coercion or violence. This principle is inscribed in the International Covenant on Civil and Political Rights. Article 14 of the covenant states that anyone accused of a criminal charge is “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Now, obviously, there can be exceptions – trials may be closed “for reasons of morals, public order […] or national security”. These exceptions, however, must be used only in exceptional circumstances, lest the appearance of justice be undermined. By reserving an arbitrary right to keep trials closed or partially closed, dispatching dozens of police officers to monitor the comings and goings of people who stand trial or wish to be in attendance undermines this appearance. The distinction between the executive and the justice system vanishes and the public is given the unmistakable impression that those standing trial are a threat to public order and national security. The trial is turned into a national security theater. And this, unfortunately, is what has happened in the case against the Reykjavík nine. The threatening and violent conduct of the police at the trial so far has been completely unacceptable. But the decision of the court to call in the police, and its decision to effectively condone its excessive use of force raises questions that are far more serious. In an open democratic society and Rechtsstaat open trials not only serve the purpose of administering justice, they serve the purpose of educating the public on how justice operates, how it is administered, thereby assuring the public that the state is built upon the just application of the laws: That the foundation for the rule of law is justice. In police states, however, trials serve a different purpose altogether: To demonstrate to the public the might of the state and the police, to impress upon people that resistance is futile, that protest will be met with the crushing power of the state, and that it is not afraid to use this power. And no one who has followed the trial against the Reykjavík nine is left with much doubt as to which category it falls.