Societies are founded on the premise that people and institutions will act responsibly and remain accountable for their actions. Should judges/judiciary and freelance social media workers be treated differently?
Ideally, each judge – of every court, ought to be independent, uninfluenced by considerations beyond the case they are adjudicating. However, in reality, we see judges reach out and go beyond. Principles akin to substantial or complete justice offer us the required justification. Likewise, a journalist (even independent social media commentators) ought to be the voice of reason, representing society's collective conscience. In reality, however, the bulk of the social media commentariat, which cloaks itself as journalism, does not adhere to elementary values of accuracy/fact-checking or objectivity. Too often, personal opinion is presented as truth. In 15th Century England, it was said: equity varies with the length of the Chancellor's foot. Regrettably, in 21st Century Pakistan: truth varies with the vlogger's silver tongue.
The first concern that comes to mind is why, despite all the hullabaloo on the media, a (new) lawyers' movement has not taken root? It is also remarkable that the civil society remains unbothered. Is it because lawyers and the civil society won't be fooled again? Or, this time around, judges are expected to do the heavy lifting themselves – to honour their oath and dispense justice, without fear or favour and to all manner of people, which Minallah J. lamented (in the Judges Letter case) cannot remain a platitude. Many may read more frequent interactions of judges (sitting and former) with Bar bodies and civil society organisations as an effort to positively impact waning public perception after the apex court openly admitted its past failings – of validating coups and having played second fiddle to suppressing political forces. At the same time, there is also the minority concern within, that an adverse spectacle is better avoided (see Afridi J.'s note in the Judges Letter case).
Events unfolding at the superior courts continue to inform us of the vulnerabilities within and outside our justice system. While focusing on individual judges and a select number of cases they decide, the social media brigade, under the garb of fair comment, has blurred the lines of critique, contempt and conspiracy. And, while doing so, it gravely dents the credibility of the judiciary.
It is elementary that the judgment of any court is open to public debate, but then, there are established norms of such debate. Personal attacks on judges are not considered fair game anywhere in the world. Criticism of the reasoning behind a decision is encouraged, but not the outcome of a case. Individuals have the responsibility to distinguish between personal opinions and legal analysis while reporting court proceedings or decisions. Speculation or inflammatory language is unacceptable. Alternate legal reasoning may very well be presented with or without the help of precedents.
However, in the game of judging judges, which is in full swing today, ad hominem or scandal are the principal motivators. Social media bears no burden to demonstrate the authenticity or credibility of the views it projects to its audience. It is not just judges; those of us who are aligned to deference to the judicial institution or those who see value in the presumption that a judge's decision is correct unless undone within the system (by review, appellate forum or Parliament), are scathingly targeted by these proponents. Take, for instance, the issue of dissenting opinions.
In all jurisdictions where precedent has value, dissenting opinions are recognised as representative of the evolution of legal doctrine. They are even seen as furthering the cause of judicial accountability. They definitely streamline public debate, including among legal scholars and practitioners, and many times precipitate legislative interventions. In short, a dissenting opinion is an inbuilt mechanism of a robust justice system that enhances the legitimacy and credibility of the judiciary. In the hands of the social media literati, however, it is nothing but the fuel that sustains their dreadful game.
A key strategy for those who play this game is to pit one judge against another, mostly to further a political agenda. Any combination works. Earlier, it was supreme court judges against supreme court judges and the term, like-minded judges, was coined to deride judges or mock the apex court. Now, it is Constitution-minded judges – whatever that means! Remarkably, judges of the high court have also been thrown into the mix. Preposterous suggestions such as the chief justice of Pakistan (CJP) has lost the confidence of high court judges are unabashedly aired, knowingly well that there is no direct administrative or judicial connection between the two. Is it not false logic to supplement personal views? The masterstroke, however, is to play the incoming CJP against the outgoing. Leaving a legacy is a bait more than often laid to pressurise the CJP. There is a lot one may note about this particular phenomenon, but suffice it to say for those concerned:
Beware!
So begins the cycle
Hyping the coming Chief
Makes easy to hunt him later
Lofty ideals; justice cheap.
Regardless of what you may contend
Social media – Milord, is no friend
For whose sake do they criticise?
Seeking views, self-aggrandise!
War of perceptions
There is little doubt that the spell cast by the social media enterprise presents public perception of justice at its lowest ebb. It is understandable why? In the game they play, it is the perception that sells.
We all are witnessing how the changing social dynamic has forced the rules of engagement of the courts with the media to evolve. Public interface, which started as a soundbite for news in the 9pm bulletin after a mundane ribbon cutting ceremony in the 1990s has now mutated into a livestream of court proceedings and is readily available on the internet for all to see. Let's be fair, the media has always had an interest in what goes around in the courts – overtly or covertly. But it is the apex court that has laid itself bare by embracing the media, unlike before. Invisibility of a judge from social life was once a virtue alongside independence and integrity. However, with livestreams and justices eager to speak at public functions, it has become impossible!
So, how will the waning perception of the judiciary improve? By efforts of individual judges inside or outside the courtroom or by a sustainable institutional approach? The latter seems to be the preferable route. But then, there are those who argue that no meaningful reform or improvement is possible without drastic structural reform of our justice system. Well, I respectfully posit otherwise, for awaiting justice sector reform is like Waiting for Godot. In any case, a change of perception does not require any drastic structural reform. It can be improved with whatever the tools or resources may be on hand. Simple measures on account of two core areas, namely: (i) critical aspects of Court Administration; and (ii) tangible movement on Judicial Accountability, may improve perceptions in the short-term, making the social media brigade run for the money. Each is briefly discussed below.
Court Administration
There are multiple aspects to this fundamental concern. Foremost, however, is the perception that the court is so malleable that it is driven by any one of its members, even the CJP. This notion, as utterly irresponsible as it may be to propagate on social media, is also an affront to the dignity of individual judges. Hence, there is a need to evolve a mechanism to address it. The most viable tool for administering the apex court may be full court meetings.
Perhaps, if the court considers issuing an annual calendar of such meetings and also provides that full court meetings may be requisitioned to address critical administrative issues by a third of its members, concerns of undue concentration of administrative power with the CJP or the committee constituted under the Supreme Court Practice and Procedure Act can be laid to rest. While discussions in full court meetings should remain in-camera, the decisions may be disclosed to the public by an official release for the sake of transparency and avoiding controversy. The adverse spectacle of issuing minutes on purely administrative matters is better avoided, for it may cater to populism or popular mindset and does not augur well for institutional strengthening. The apex court, of all, knows that no good ever comes by washing dirty linen in public.
Second, the controversy surrounding the formation of benches will shape-shift till the time benches are not notified in advance. Instead of constituting special benches for special cases, as a general rule, cases may rotate among these pre-notified Benches. Perhaps, a 17-member court may be divided into not more than four regular benches, each having at least one judge from each province. This may bring the additional benefit of allaying allegations of parochial bias. Constitutional cases may be spread across these benches so that a larger number of judges from each federating unit are visibly engaged in such matters – as opposed to a select group assembled at Court #1. Such practices of the past continue to haunt and have brought enough of a loss of reputation to the court. Why can't the burden of the apex court's decisions, particularly those bearing political consequences, be shared by a larger number of judges? If the court were to undertake its business through such pre-notified benches, individual judges could have due flexibility to plan their vacations and/or attend to personal commitments accordingly. Moreover, such benches may consider scheduling sittings in the Provincial registries on a pre-set rotational basis. Scheduling bench sittings in provincial registries to coincide with weddings or the like fuels the game instead of avoiding it.
Lastly, it is unfortunate that retiring judges leave before writing judgments (or detailed reasons) in cases heard or disposed of by them. Some of these cases are reheard, adding to the already prolonged misery of litigants. It is a waste of public time and needs to be addressed. Therefore, the court may consider that a reasonable time before the impending date of retirement of a judge, he/she may not be tasked with new cases so that backlog of writing judgments (or detailed reasons) is taken care of.
Judicial accountability
There is no justification for a dormant Supreme Judicial Council (SJC). The recent accountability by the armed forces of its high-ranking personnel will only make the ineffectiveness of the SJC more glaring. The reported long list of complaints pending with the SJC aside, the Judicial Commission of Pakistan (JCP) recently noted a lack of credentials to deny the appointments of certain high court judges to the Supreme Court (also, chief justice of the High Court). This raises the concern as to how a majority of SJC members, who were present in the relevant JCP meeting, reconcile the continuity of such a number in its midst? If it is for the sake of camaraderie, it will not sustain. If there is an expectation that the judge will resign due to public pressure caused by adverse remarks in a JCP meeting, it is not the kind of institution-building outlook that could restore public confidence.
Conjoined to the above is the issue of the Code of Conduct for Judges. The archaic colonial remnant applicable today has long been dispensed with in the UK and key Commonwealth States. The SJC needs to formulate a more appropriate code, drawing upon universal standards indigenised to our peculiar requirements. To this end, disclosure of tax returns to the SJC by a judge (and of their immediate family members, particularly if any of them is an advocate) may be considered for greater transparency. That affluent litigants try to approach friends and family of judges has been laid before the public by the judges themselves. Another very disconcerting element in the conduct of judges is the perception that sitting judges take an active interest in Bar elections. This should be an absolute no-go area. And, there is also a need to consider to what extent the code of conduct for judges must continue to apply post-retirement. The concept of 'whistleblower protection' has also become a key feature in this regard, which may also be considered along with the recognition that removal from service is not the only option. In more developed jurisdictions, judges are reprimanded for their conduct, and punishments such as leave without pay or sending a judge on specialised training or a course on case or time management are also considered a remedy to ensure the quality of justice.
In the game of judging judges, allegations of misconduct of a judge are also becoming key. While the court will most definitely decide such matters on a case-by-case basis, a code of conduct may draw upon precedent to highlight what does and what does not constitute misconduct. For instance, drawing upon case-law from across continents in light of present-day debates in Pakistan, it is clear that the following is deemed as misconduct for a judge:
- Bullying or harassment, for example: of staff, colleagues, litigants or legal representatives
- Using racist, sexist or otherwise offensive language
- Loss of temper, being rude or showing aggression, for example: by shouting
- Misusing judicial status, for example: to influence another person or organisation for personal gain
- Intervening in police authorities' handling of prisoners
- Misusing social media, for example: by posting offensive content or content which could damage public confidence in judicial impartiality, such as remarks about government policy
- Failure to report personal involvement in civil, criminal or professional disciplinary proceedings.
And, the following is not considered misconduct of a judge:
- A decision or order, even if wrong or bad in law or where an error of law or procedure is made
- Allowing one party to speak for longer than another
- Refusing to allow a witness to give evidence or admit certain documents
- Appearing to react more favourably to one person's evidence than another's
- Saying that he or she does not believe a person's evidence, or questioning a person's credibility, or criticising a person's actions
- Expressing opinions about issues related to a case being heard
- Not reading documents before a hearing
- Refusal to transfer a case to a different judge or court
- Reserving a case to him/herself.
Another critical aspect of judicial accountability is judicious spending and its disclosure. The Supreme Court's annual expenditure was reported to be around Rs315 ($4.1) million in 2007-08. In ten years (with two democratic political terms in between), it is reported to have climbed to Rs1,817 ($16.5) million (2017-18). In other words, it increased by about 300% in dollar terms, during which period the Gross Domestic Product (GDP) grew only by 85% – from $170 billion (2008) to $314 billion (2018). If the above-reported numbers are accurate, then in over a decade, the Supreme Court's expenses have ballooned more than three times faster than the wealth created in the country. Salaries paid out from the exchequer are another indicator, particularly if they are juxtaposed as multiples of minimum wage. In Pakistan, the salary of the Chief Justice (in 2017) was 85 times the minimum wage (Rs14,000 at that time). In the UK, where lawyers earn far more than here, it was still only just 17.5 times the minimum wage (at roughly about the same time). In a free market capitalist society such as the US, it was nearly 18 times the federal minimum annual wage. In the not-so-shinning India and in the no-longer-booming Bangladesh, it was 21 times the minimum wage (in New Delhi and Dacca, circa 2018). In our friendly Sri Lanka, it was just 23 times the minimum wage in 2019.
Additionally, service benefits extended to retired or former judges, including remuneration awarded on account of assignments or projects entrusted to them, should be disclosed to the public. Many times, in the recent past, judges hooked to a decadent life of protocol or those who were ever eager to extract additional benefits from the government kitty (be it the reported monetisation of electricity units or secretarial facilities or otherwise) make it difficult for serving judges to establish unimpeachable integrity. Due disclosure of financial benefits availed by judges is not a requisite to establish the integrity of any judge. However, perceptions are predicated on such measures. It is in the public interest to know the precise financial position of a judge. The fact that a judge is required to disclose financial matters to the SJC will be sufficient to eliminate misgivings about judges employing artifices to aggrandise friends and family.
Judicial package
Moving on to an associated theme, there is much talk these days of a judicial package being prepared by some to undermine the incumbent CJP. It is, to say the least, bane to suggest that a majority of the apex court was not driven by regard to the Constitution and the law but the fear of a judicial package while rendering the reserved seats case decision. Be that as it may, if a constitutional amendment with respect to the judicature is indeed in the offing, here are two further points to ponder:
Fixed Tenure of CJP
I have written before and restate that appointing CJP's for a few days or weeks only serves to massage individual egos. No worthwhile policy or administrative direction can be rendered by the apex court in such short a tenure. Therefore, regardless of the age of the CJP, the CJP may hold office for a specified term (say, two or three years). In just over 75 years of our history, we have had 29 CJPs. Compare this to the UK, where, from the year 1234 to 1880 (about 650 years), there have been 95 Lord Chief Justices (LCJs). From 1880 to the present day, there have been just 19 LCJs (England and Wales), and from 1947 to the present day, just 12 LCJs. The longest-serving chief justice had a tenure spanning 32 years. In contrast, there have been 50 CJs in India, out of which 21 served for a term of less than a year (the lowest being 17 days), while 28 served for a period longer than a year (the longest being 7+ years). In Pakistan, three CJPs have served for under a month. Saluddin, Khawaja and Jehangiri served as CJPs for nine, 23 and 24 days, respectively. Eight CJPs served for a period under six months.
Rotational appointment of CJPs
Instead of the straight-line seniority principle followed today, the office of the CJP may rotate on provincial basis such that the CJP is succeeded by the senior-most judge of the court from another province (or from the Islamabad Capital Territory) next in line – perhaps according to pre-agreed schedule/turn (akin to the election to the office of the President, Supreme Court Bar Association). This will eliminate misgivings about provincial underrepresentation to the highest un-elected constitutional office. Per the available statistics, out of the 29 CJPs Pakistan has had since 1947, 15 were former judges of the Lahore High Court; seven were former judges the high court of Sindh (Bhagwandas and Dogar, JJ not counted); two from the Balochistan High Court (Javaid Iqbal not counted); two from the Peshawar High Court, and one each affiliated with the Madras, East Pakistan and the Calcutta High Courts.
Interestingly, 19 CJPs were appointed by a civilian president (the widely criticised CJPs Munir, Sajjad Shah, Nasim Shah and Irshad H. Khan, amongst them).
The reverent CJPs, Justice Cornelius and Hamoodur Rahman, were appointees of dictators. CJP Iftikhar Chaudhry has the unique distinction of being appointed by both. The above data can also help put to rest another controversy: who appoints better judges; dictators or civilians?
In conclusion, democratic norms require the judiciary to be the ultimate guardian of constitutional rights and obligations. This is only possible when the judiciary acts as an independent organ in a manner that limits citizens' questions about its credibility. The insistence that the judiciary remains independent is, in fact, insisting that no judge or institution is above public accountability.
President Roosevelt stated: "No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favour," must hold true for judges as well.
The stature of the judiciary is bigger than all the individuals we lionise. It is fair then to insist that the judiciary – as an institution – be held to a higher standard, particularly after the 18th and 19th Constitutional Amendments, whereby it wrestled for itself a greater and more decisive role in the appointment of judges.
No law or gag order on the social media will ever result in improving perceptions about the quality of justice meted out to the general public. It is the actions of the judges on a personal level and the actions of the court at the institutional plane that will speak louder than words.
The increasing chasm between social attitudes and the legal permissibility of social behaviour continues to create greater conflicts. If the judiciary does not self-regulate, it will have lessened its moral authority to claim that the Parliament must not intervene in its affairs, including on the elusive touchstone of the judiciary's independence. If such a corrective course is not adopted, the extraordinary media outreach will highlight contradictions hithertofore hidden from public view. Alas, adding to our collective agony!
For too long the public has held the belief that the outcome of judicial decisions, especially those with political ramifications, is influenced by the establishment. Outpourings by individual judges, in or out of the courtroom, without a transparent internal mechanism reinforces such perception; it does not reduce it. The interaction of power and authority, on the one hand, and that of duty and discretion on the other, the courts know best.
One last point with regard to ameliorating perception: just like (unity of command) is central to the military's integrity and discipline, the perception of integrity and independence is the pivot upon which public confidence in the judiciary rests. Unless all concerned recognise this critical balance, the road to anarchy will always be closer than the course of correction, hence, promoting the undesirable game of judging judges.