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Wednesday, May 22, 2024

Judges’ use of social media: Ethical or unethical?

Recently, an increased number of judges are embracing social media, and use it just like everyone else. However, according to Barrister Pansota, there are certain ethical codes that every judge should follow while engaging with the public through social media. Such codes of conduct ensure that Judges remain unbiased and free from social manipulation.

As the American Bar Association puts it “judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety”.

Social media platforms play an increasingly vital part in social life, communication, and dissemination of information. They inevitably touch upon the lives of most people, with judges being no exception. However, given the nature of the judicial office, the use of social media by judges raises specific questions that should be addressed.

This is because the way judges use social media may have an impact on the public’s perception of judges and confidence in the judicial systems and can potentially lead to situations where judges are seen as biased or subject to outside influences. In addition, the use of social media also poses potential threats to judges’ privacy, safety and may place judges under the attack of negative comments and cyberbullying.

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There is currently no consensus on judges’ use of social media and most judiciaries’ rules and regulations are silent on the topic. However, more attention is starting to be paid to the topic and several jurisdictions and regional bodies have put in place explicit rules or addressed the emerging questions in case law or advisory opinions.

It can be observed from the existing sources that the opinions around the various aspects of the use of social media by judges vary and what is considered acceptable in one jurisdiction may not be acceptable in another.

However, what links the various approaches is the underlying principle that judges should always have regard to the fundamental values of judicial independence, impartiality, integrity, propriety, equality and competence, and diligence.

Read more: Judges should not make political statements, says Fawad Chaudhry

There has been astounding growth of electronic social networks in recent years. Huge numbers of people have joined Facebook, LinkedIn, Twitter or Instagram, or other online social networks as a means to notify others of news in their lives, to opine about current events, to keep up with what their friends and relatives, and acquaintances are doing, and to generally stay in touch with other people with whom they have something in common.

Typically a social network allows someone to post a profile and photographs, videos, music, etc., and invite others to become “friends” or “fans.” Some information may be shared with the whole world; other parts may be restricted to a select, small group.

Not surprisingly, judges have been slower than the general public to embrace social media. Still, an increasing number of judges are using such sites. As far back as 2012, a survey reported that nearly half of the judges surveyed had a social media profile site, Facebook being the most popular by far. Undoubtedly the numbers are higher today.

For some time state bar regulatory agencies have been addressing the effect of electronic communication on traditional ethical rules for lawyers ― the extent to which law firm websites constitute advertising, whether e-mail inquiries establish an attorney/client relationship, and so on. Likewise, judges hearing cases have faced new legal issues involving electronic discovery and searches of computers.

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Judges have become all too familiar also with the problems of jurors communicating with the outside world and conducting their own research via their smartphones and other devices. Only recently, though, has much guidance been provided to judges about the ethics of their own social networking.

Judges’ use of social networks

For the most part, judges use social media just like everyone else. They post news to share with friends, list their interests, opine about books and movies, put up photographs from their trips, and so on. They may be inclined to comment about current events, perhaps tweeting a few words about a news story or retweeting someone else’s commentary. And, like everyone else too on social media, they will read and view the news, comments, photographs, etc., of people who interest them.

Some judges incorporate social networks directly into their judicial activity. A judge may search Facebook and other sites to check on what lawyers and parties are up to, and some judges have been known to require juveniles or probationers to friend the judge or another official on Facebook so the judge can monitor their activities.

Contemporary times have witnessed technological advancement, entailing an astounding increase in the use of cyberspace by citizens. In recent years, social media sites have become intricately interwoven within the fabric of society. In fact, the first decade of the twenty-first century is considered the dawn of the ‘social media age’ and the effect of social networking sites can be felt globally.

Read more: Importance of social media usage by government officials

Legal professionals, viz. judges, advocates as well as the judicial staff are flocking to social media sites like Facebook, Twitter, etc. to magnify their professional presence in the emerging digital frontier. Although, judges have been slower than the general public to embrace social media, howbeit, surveys report that the number of users from the judiciary has been increasing. For instance, Justice (retd.) Markandey Katju has over 1 Lac followers and almost 11,000 tweets.

Due to its ubiquitous nature, Electronic Social Media facilitates public outreach. Further, social exchanges of all kinds, including Electronic Social Media, can be beneficial to judges as they prevent them from being thought of as inaccessible or secluded. There has been a divergent view on the issue of the use of Electronic Social Media by the judges as it has the potential to compromise or appear to compromise the independence, integrity, and impartiality of the judge.

Moreover, it can also undermine public confidence in the judiciary. With different rules in different states, the opinions vary from absolute prohibitions on judges using Electronic Social Media to general acceptance of such interactions, with some judicious limitations.

Henceforth, important questions regarding the use of Electronic Social Media by the Judiciary and its extent arise. Does the revered role of a court or a judge disapprove of the use of Electronic Social Media? Can the judges use online forums to discuss law-related issues? Can a judge use Electronic Social Media in his private capacity? Should judges be denied the right to social networking?

Read more: Civil servants submit their social media accounts’ details, LHC

The major strain in answering these issues is that over the past few decades there has been a profound change in the role of the judiciary. Passively highlighting the inquisitorial role of a judge in common law society, it is contended that judges play an active role in identifying and reflecting the social values in a case. Hence, the values of a judge find their way into his decisions where those values are related to. Moreover, they act as a social innovator and serve as a cushion to the social shock induced by drastic socio-legal changes in society.

While the incidence and manifestation of such occurrences are open for deliberation, the use of ESM by the court and judiciary has spurred many debates. For instance, in Florida, a judge had to recuse himself over his Facebook friendship with a prosecutor. Further, in the United Kingdom, guidelines were laid down stating that judges should not refer on Twitter or Facebook to their judicial activities or cases in which they were involved.

Social media makes Judges bias?

Judicial ethics and code of conduct serve as the pillar to the roof of integrity, independence, and propriety of the Judiciary. Judges are attributed by dispensation of justice. The fundamental guarantee of a fair trial requires judicial independence, integrity, and impartiality in order to ensure the faith and confidence of the general public and litigants in the judiciary. Accordingly, these judicial ethics shall be evinced and endorsed by the judge in the institutional as well as individual bearings.

Man is a social animal. Social behavior has an attribute of favoritism towards friends or relatives. This act of preference or partiality can be termed as bias. According to the doctrine of natural justice, a judge should be impartial and neutral and must be free from bias (nemo debet esse judex in propria causa). Bias is a predisposition to decide for and against one party without proper regard to the true merits of the dispute.

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A Judge may have a personal bias towards a party owing to a relationship. The exquisite nature of a judge’s duties requires a certain degree of detachment. A workable line of distinction has to be drawn by the judges while functioning in society as an individual. These pre-requisites lead us to the issue of personal bias. The causes which may lead to personal bias cannot be exhausted.

The principal would come into operation whenever there is a ‘real likelihood of bias’. In other words, the test is not whether a bias has ‘actually affected’ the judgment, but whether a litigant could ‘reasonably apprehend’ that a bias has operated against him in the final decision of the judge. Hence, the issue at hand is the ‘real likelihood of prejudice however, it does not require certainty.

‘Propriety and the appearance of propriety are essential to the performance of all of the activities of a judge.’ A judge shall diligently avoid impropriety and the appearance of impropriety in all his activities. In fact, a judge is constantly under the public gaze, must accept personal restrictions that might be viewed as burdensome by the ordinary citizen, and should do so freely and willingly.

He shall not allow any social relationship to improperly influence his judicial conduct. R. C. Lahoti in his famous work, Canons of Judicial Ethics, has very well stated that “The judiciary has no influence either the sword or the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment- a speaking impartial judgment.”

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Henceforth, where justice shall not only be done but seen to be done, a judge has to be not only impartial but seen to be impartial.

Code of conduct for Judges

In Pakistan, the Judges of the lower, as well as the Superior Judiciary, also have a code of conduct which they are bound to abide by while performing their functions and duties. A complete code of conduct has been designed for judges of the lower judiciary. No man has a right to judge another man except when society has entrusted him with the task of judging others and settling their disputes.

The members of the superior and subordinate judiciary in our country have been chosen by our society to carry out this onerous duty. The salient features of the code of conduct for the members of the subordinate judiciary are stated in the following.

Judicial power is a sacred trust and divine duty. A judicial officer should exercise it honestly, efficiently, and to the best of his capacity keeping always in mind that he is accountable not merely to his superior officers but to God Almighty Himself. He should all the time be conscious of his onerous duty and his integrity.

While deciding a matter, judicial consideration should alone weigh and in the matter of discretion, a judicial officer should be guided only by rules of justice, equity, and good conscience but not by whims and caprices.

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His behavior and conduct should be gentlemanly particularly towards the litigants and lawyers. He should be courteous and polite but firm and dignified to maintain the decorum of the Court. His conduct in and out of Court should be exemplary which should enhance the prestige, respectability, and honor of the court in the society.

While dealing with others he should always imagine himself in the position of the person he is dealing with and treat him as he would like himself to be treated.

He should always exercise self-restraint, self-denial and he should avoid mixing up with the general public and members of the bar. He should also avoid attending private parties and functions at public places including hotels, markets, and streets except in dire need.

He should always be keen to learn and try to gain knowledge throughout his career. Up-dating and acquaintance with the latest techniques and knowledge should help in resolving intricate controversies coming up before him.

He should never publicize his honesty or any other merit. He should leave it to others to recognize his merits. He should not be misled by the praises showered or by flattery or cajolery.

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He should be respectful, courteous, and obedient to his superiors, helpful, and sympathetic to his subordinates. He should always live within his honest means and believe in Rizq-e-Halal. He should also avoid employing impolite language in writing as well as in conversation and should also try not to annoy others.

Judges should conduct themselves in a dignified manner

It is human to err. The judicial officer is no exception to this rule. But he should be bold enough to admit his mistakes frankly and should sincerely try and avoid repeating them in the future. He should not incur personal obligations as far as possible. He should never backbite or crib and should never stoop to flattery.

A judge should believe in self-accountability. To judge his conduct and work is the job of his superiors. And when the superiors point out some shortcomings in him, he must take it with grace and try to remove it.

He should never lose his temper while presiding over the Court, should avoid entering into arguments with lawyers, parties, or witnesses, and refrain from siding with any party/lawyer.

In the matter of performing judicial duties and functions, he should always maintain his independence and should never allow himself to be swayed either by those who are near and dear to him or by those in authority over him. He should maintain cordial and affectionate relations with his colleagues and show due respect to his seniors.

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A judicial officer should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, patient and calm, blameless, untouched by greed, completely detached and balanced, faithful to his words, and meticulous in his functions.

He must not show any fear or favor to any party before him or their lawyers, both in his judgment and conduct. His conduct should be above board and should perform functions without any prejudice to anyone. He should avoid rage and should abstain from performing functions in rage.

He should be learned in the law and should have command and control over the proceedings in Court. He must be consistent in his approach and should follow precedents of Superior Courts in matters coming up before him. He should also always endeavor to decide cases expeditiously and should take all necessary measures to ensure speedy justice.

He should have effective control over the staff of his court without being rude, rough, or humiliating. A judicial officer must be punctual while taking or leaving his seat. He must be dressed in prescribed uniform and seated in a dignified manner, but not so as to look a proud man. He should avoid arrogance.

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Cases should be discussed with transparency

He must avoid hearing cases, receiving guests or his colleagues in the retiring room, besides avoiding frequent use thereof, except in urgent need. He must avoid hearing one party or his lawyer in the absence of the other except in the case of ex-parte proceedings. He must not hear those cases in which he, his near relatives, or close friends have got any interest.

He should not privately communicate to any of the parties to the litigation before him. The judicial officer must avoid discussing particular cases before them unless allowed by law or when it is intended to give advice or counseling by a higher forum to a lower forum. He should not engage in any business whatsoever.

He should conduct proceedings in open court in presence of parties/their counsel and not in the chamber/retiring room which is meant for use only when absolutely necessary or when free from the court work. He should not leave the judicial work/function with any of his court officials.

He should make an endeavor as far as possible to act as “Musleh” and help the parties to resolve the dispute through amicable means acceptable to them, without leaving any impression of siding with anyone.

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He should give the greatest importance to reasoning and arguments in order to unearth the truth. He should not get annoyed with the arguments of the parties and must exhibit, patience and perseverance in scanning the matter coming up for adjudication before him.

Before assumption of charge and on appointment as a Judicial Officer he shall make an oath in the form as prescribed by the Lahore High Court before the person so designated for the purpose (Form attached). He should also file a statement/declaration of his assets and of his/her dependents.

One should never forget that he/she is accountable to God Almighty in the end.

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The prime duty of a judge

In Pakistan, we have a Supreme Court of Pakistan and four Provincial High Courts i.e. Lahore High Court, Peshawar High Court, Baluchistan High Court, and the Sindh High Court along with one Federal High Court i.e. the Islamabad High Court. A complete code of conduct has also been designed for the Judges of the Superior Judiciary i.e. the Judges of the High Courts and the Supreme Court of Pakistan.

On the 2nd of September 2009, a notification was issued by the Supreme Judicial Council in the exercise of powers conferred by Article 209 (8) of the Constitution of the Islamic Republic of Pakistan 1973 the Supreme Judicial Council in its meeting held on the 8th of August 2009 approved the addition of a new Article No XI in the Code of Conduct for Judges of the Supreme Court and High Courts and in its meeting on 29th August 2009 decided to publish the full text of amended Code of Conduct in the Gazette of Pakistan for information of all concerned as under:-

Code of Conduct for Judges of the Supreme Court and High Courts (Framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended up to date under Article 209 (8) of the Constitution of Islamic Republic of Pakistan 1973).

The prime duty of a Judge as an individual is to present before the public an image of justice of the nation. As a member of his court, that duty is brought within the disciplines appropriate to a corporate body.

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The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles, which are woven into the Constitution, as well as the universal requirements of natural justice.

The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the Law is to be discharged for the maintenance of the Rule of Law over the whole range of human activities within the nation.

To be a living embodiment of these powers, functions, and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behavior, which are the hallmark of distinction of a Judge among his fellow men.

In this code, an attempt is made to indicate certain traditional requirements of behavior in the Judges of the Superior Courts, conducive to the achievement of a standard of justice worthy of the nation.

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Judges behavior according to law

ARTICLE- I, on equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge’s task is to ensure that such equality should prevail in all things.

ARTICLE- II, a Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak, awe inspires in his warnings and faithful to his word, always preserving calmness, balance, and complete detachment, for the formation of correct conclusions in all matters coming before him.

In the matter of taking his seat and of rising from his seat, he shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the Court, while maintaining an equal aspect towards all litigants as well as lawyers appearing before him.

ARTICLE- III, to be above reproach, and for this purpose to keep his conduct in all things, ‘official and private, free from impropriety is expected of a Judge.

ARTICLE- IV, a Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.

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A Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him. Should the dealing be unavoidable, he must discontinue his connection with the case forthwith. A judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.

To ensure that justice is not only done but is also seen to be done, a Judge must avoid all possibility of his opinion or action, in any case, being swayed by any consideration of personal advantage, either direct or indirect.

ARTICLE- V, functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.

ARTICLE- VI, a Judge should endeavor to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade, or speculative transactions. To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault. A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions.

Read more: Judiciary ensuring justice through public interest litigation

ARTICLE-VII, extra-Judicial duties or responsibilities, official or private, should be generally avoided. He should equally avoid being a candidate, for any elective office in any organization whatsoever.

ARTICLE- VIII, gifts are to be received only from near relatives and close friends, and only such as are customary. Everything in the way of favors in consequence of the office must be refused. In accepting any entertainment offered, whether general or particular, care should be taken that its real purpose does not conflict with a Judge’s duty to maintain detachment from likely litigants, and from partisan activity.

ARTICLE- IX, in his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity of the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.

ARTICLE- X, in this judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavor to minimize the suffering of litigants by deciding cases expeditiously through properly written judgments. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.

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ARTICLE- XI, no Judge of the superior judiciary shall render support in any manner whatsoever, including taking or administering an oath in violation of the oath, of office prescribed in the Third Schedule to the Constitution, to any authority that acquires power otherwise than through the modes envisaged by the Constitution of Pakistan.

Instances of judicial accountability

In case a Judge of the Superior Judiciary violates his code of conduct a complaint can be filed against him or her before the Supreme Judicial Council under Article 209 of the Constitution of the Islamic Republic of Pakistan 1973 which comprises of the Chief Justice of Pakistan, two next most senior judges of the Supreme Court and two most senior Chief Justices of the High Courts.

More recently, a case of the first impression came up before the Supreme Court of Pakistan wherein a Judge of the Supreme Court had filed an application (CMA No 1243/2021) seeking live streamlining, coverage of his Review Petition proceedings which was being heard by a 10 Member Bench (Larger Bench) of the Supreme Court. The said Civil Miscellaneous Application was dismissed by a majority of 6 to 4 vide its Order dated 13th April 2021 (The detailed reasons of which are yet to be released).

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Recently, a sitting Judge of the Supreme Court was seen giving a live interview to a TV Reporter of a Private TV Channel. The same was shown on all TV channels and videos of which were also available on social media. The question which emerges is could a sitting Judge of the Supreme Court come on TV and give an interview and doesn’t this offend the Code of Conduct of the Judges of the Superior Courts? The same raise eyebrows and concerns for all times to come.

In India, the Chief Justice of India has said that The new media tools, with their “enormous amplifying ability”, are incapable of distinguishing between right and wrong, good and bad, and the real and fake. So media trials cannot be guiding factors in deciding cases”.

In India, according to the Law Minister “Using Social Media to troll judges is a concern”.

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The way forward

This analysis raises substantial concerns about the ethical implications of social networking by judges. In a world where social media have become mainstream means of communication and continue to grow, members of the judiciary should not be prevented or discouraged from taking part in online communities. The present article aspires to alert judges to the factors that they should take into account when engaging with social media so that they effectively meet their ethical duties.

Informing members of the judiciary of the unique perils that communication through social media entails, increasing familiarity through training (e.g. SNSs workshops, case briefing, and discussion), and establishing bright-line rules that reflect the common understanding of social media are critical for maintaining judicial impartiality and integrity.

It is our hope that committees will soon address the issues arising from judges’ online social activity and will adopt transparent and technologically up-to-date guidelines of good practices for contemporary members of the judiciary.

Read more: Judicial impartiality paramount to serving justice

Beyond disciplinary ethics, enforcing such guidelines could be proactively achieved through independent ethics councils within the Judiciary competent to advise and educate judges on modern ethical dilemmas, monitor their implementation, and prevent potential abuse of online social connections!.

May Allah help and guide us all!

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.

The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.