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Public-speaking judges

A Cursory look at the daily print and electronic media reveals that judges no longer speak only through their judgments.

In addition to the regular publication and broadcasting of Supreme Court and high court judgments by the print and electronic media, a new phenomenon has emerged constant reporting of the verbal comments of superior court judges during hearings and of their public speeches.

In other words, the judges of the superior court have been transformed into publicly present figures, engaging in giving both written and verbal decisions.

Butwhy have thesejudges engaged in such publicspeaking through their verbal comments and public speeches? Or is the persistence of this phenomenon of verbal decisions/speech fulfilling some judicial need? We can tentatively identify five such reasons for this phenomenon.

Burden of history: PostMarch 2007, the emergence of this `new` judiciary is historically linked to the growth of the media, especially the electronic media, during this period, in two ways.

Firstly, the media played an important role in the public mobilisation/support of the lawyers/judicial movement.

Therefore, it was naïve to think that the media would not enter the courtroom after the judiciary`s restoration.

Secondly, the public-speaking judge and the constant reporting of his judicial verbal comments emerged during this lawyers/judicial movement. Therefore, before the first (July 2007) and second (March 2009) restoration, judges had already been socialised out of their traditional non-public judicial roles and into their new publicly present judicial roles.

Judico-media power: The de facto power of the `new` judiciary has public legitima-cy ana tne tnreat ot public mobilisation in its favour. The judicial strategy to sustain and increase such public legitimacy on a constant basis is to have a constant judicial presence in the print and electronic media.

In other words, the public-s p e akin gjudge, and his daily remarks, propagating the `rule of law` as a key solution to state and societal problems, reproduces and increases judicial power on a daily basis.

Such daily reproduction of and increase in judicial power is not possible through mere judgments as the latter are too long and legalistic, whereas a judicial comment during a hearing or in a public speech is short and simple. It has a more immediate and effective public impact.

Media & middle class connection: If the media plays a role in the reproduction of and an increase in judicial power, the judiciary is also a vehicle for the growth of power of the media and the middle classes, especially the professional classes.

For example, suo motu actions have been taken on the basis of print and electronic media reports giving power to the print and electronic media, to intervene in public affairs through judicial action.

But what is this Pakistani media, especially the electronic media? It is primarily composed of businessmen/ capitalist class, the middle class and the professional class. It is also important to note that judges predominantly have middle/professional class backgrounds. Thus, the agenda of the media is also being set by the middle and professional classes.

In short, the persistence of the publicly present judge isnow also linked to the emerging power needs of the media and middle class.

Fear of the law: Machiavelli was probably right in noting that it is better to be feared than loved.

Unless societies are socialised into being obliged to follow the law, the fear of consequences is key to forcing people to obey the law.

Thejudges of the supenor courts, especially Chief Justice Iftikhar Chaudhry, reinforce this fear of the law, on a daily basis through their critical judicial comments during court hearings, and through public judicial warnings, which are constantly reported as headline news in the print and electronic media.

Such daily and visual fear of the law can never be conveyed through legalistic judgments it requires constant judicial performance in the public arena to be instantly spread in society through the media.

Legal shaming: One of the punishments recognised in criminological theory is `public shaming`. The court`s directions to government officials and private parties to personally appear in court and its public anger and criticism in open court, which is then greatly amplified by being reported or broadcast, is a kind of dispute resolution through legal public shaming.

Legal shaming works because people comply with the law because of the fear of pubhc shaming.

Justice/dispute resolution without orders: The superior court`s judicial strategy of `fear of the law` and `legal shaming` point towards a dilemma faced by the courts.

The public`s demand for justice and dispute resolution is too overwhelming and varied to be fulfilled by legalistic judgments. Therefore, this judicial verbal decision-making is a kind of a dispute resolution/justice without written orders.

But we should be cautiously critical about such devel-opments for the following reasons.

Firstly, judges who speak too much may prejudge the persons appearing before them. And prejudgment is a classic form of unfairness.

Moreover, instant, instinctive or hurried decision-making, is more likely to lead to injustice.

Secondly, in cases in which the fundamental rights of individuals or minority or depressed groups are involved, it is the constitutional duty of the judiciary to protect these rights, regardless of the opposition of the overwhelming majority of Pakistanis.

In other words, democracy/majoritarian rule may lead to dictatorship of the majority and it is the judiciary`s constitutional duty to play the counter-majoritarian role to safeguard individual rights or the rights of depressed or minority groups.

In such cases, judges who are sitting in their secluded courtrooms, relatively free and without fear of public disapproval, may be better equipped to deal with such cases than those who are worried about their public legitimacy, as perceived and constructed by the media.

But these are uncharted judicial waters and what needs to be accepted is that the public-speaking judge is here to stay. • The writer is a lawyer.

Faisal Siddiqi, "Public-speaking judges," Dawn. 2013-03-15.