Law and accountability in the post-truth era

Law and justice systems across the world remain under sharp review as they deal with essential factors of human rights and dispensation of justice. It may be interesting to find how nations cherish their judiciary and its role in society.

During WWII, with London hit by Hitler’s Luftwaffe, Winston Churchill asked, “Are the courts functioning?” and when he was told they were, he exclaimed, “Thank God. If the courts are working, nothing can go wrong.”

While this statement underscores the criticality of dispensation of justice, protection of individual and community rights through a strong judicial system, it also raises the bar on transparency, accountability, induction of quality judges and ethics within the system.

In more developed societies and countries, healthy debate and criticism of the judicial system is allowed as the fundamental right of freedom of expression.

England abolished the law of contempt of the courts in 2013. Its main argument was that it clashed with the basic human right of freedom of speech. In the debate in the House of Lords over the proposed legislative amendment, Lord Pannick QC said, “There is simply no justification today for maintaining a criminal offence of being rude about the judiciary — scandalising the judges or, as the Scots call it, murmuring judges. We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance. A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors.”

In a lecture delivered at the Gilbert & Tobin Centre of Public Law, University of New South Wales, Australia, the Chief Justice of the Hong Kong Court of Final Appeal, Geoffrey Ma Tao-Li, discussed criticism of judges and the courts. He feels that rational and constructive criticism tends to increase confidence in any system, especially of public institutions, as it may help reform it.

Justice Tao-Li states, “Rights include the freedom of speech and other rights such as access to the courts. When the judicial system, which includes the work of the courts and judges is criticised from the point of view of rights, how do the courts deal with this, for there can be said to be possible conflicts of interest? If the concept of the administration of justice is misunderstood, then the confidence of the community in the institution of the law would inevitably be undermined. However praiseworthy a court system is and however well it works, the absence of confidence in the system seriously undermines the rule of law and this in turn will undermine society itself.”

The other major factor in building confidence of the society in its judicial system is the ethical standards and conduct of judges. A case in this regard is the remark by Justice Felix Frankfurter of the US Supreme Court in Pennekamp v Florida: “Weak characters ought not to be judges.”

Teresa Stepzinski while writing for The Florida Times-Union recounted the US SC decision. “John D Pennekamp, editor of the Miami Herald, ran two editorials critical of local judges by name who were perceived to be corrupt. Enraged by the editorials and a related cartoon, the judge retaliated by holding Pennekamp and the newspaper in contempt of court for ‘denigrating the judiciary’.

“Pennekamp and the newspaper appealed to the Florida SC, which upheld the contempt of court citation saying he couldn’t insult the judiciary. He then appealed to the US SC, which unanimously reversed the Florida SC ruling and threw out the contempt citation against Pennekamp and the newspaper.”

The US judicial system lays down the fundamental of Administrative Oversight and Accountability. Accountability is a core value of the federal judiciary, as stated in the Strategic Plan for the Federal Judiciary, encompassing stringent standards of conduct, self-enforcement of legal and ethical rules, good stewardship of public funds and property and effective and efficient use of resources. Oversight mechanisms also promote compliance with ethical, statutory, and regulatory standards.

Now, why has it become ethics and accountability become more pronounced in today’s post-truth era?

Every man-made system and structure needs a review and that can only come through healthy debate. The Cambridge dictionary describes post-truth as “relating to a situation in which people are more likely to accept an argument based on their emotions and beliefs, rather than one based on facts”. Another description states that post-truth politics is a political culture in which debate is framed by appeals to emotions disconnected from the details of policy, and by repeated assertion of trivial punch lines, factual rebuttals are ignored.

How far has the post-truth era affected societies and states? One example is the current chaos in the US, where race-based fault-lines have erupted, mainly triggered by police brutality against an individual.

The lessons one can learn from this chaos is that information empowerment of the masses, especially through social media, has given unprecedented power and right to the common man and groups who can vent their feelings and call for fundamental rights against state institutions without much restrictions.

In the age of information empowerment of the masses, state’s monopoly on information has been compromised, social media can directly affect national and international issues through the colossus of information tools. The three pillars of state — legislature, executive and judiciary — cannot remain oblivious to this empowerment of the masses.

The public has high expectations from the pillars of state and since almost everything has now become transparent and in the public domain, the state institutions have to rise to the call of our time. In Pakistan, the call for across-the-board accountability has become popular as it represents genuine collective aspiration of the Pakistani people. While every judicial system needs basic safeguards to allow it to function without fear or pressure and dispense justice as per law of the land, a healthy debate to reform and improve the system should be positively considered.

The proliferation of social media has made it almost impossible to surf or check negative trends in social media, at times religious and cultural icons have been targeted by vested interests and joined by scores of people, creating chaos due to the anonymity factor in social media and unprecedented access of common man. Interestingly anyone with a Twitter account can send a message to the planet’s most powerful man, Donald Trump, and he cannot do a damn about it.

With 150 million Pakistanis using smartphones and millions on social media, the old system of control of information cannot work. Although some states consider it as a strategic tool of chaos, more developed societies regard it as the fundamental right of freedom of expression, especially when the general public cannot redress their grievances against the authorities. Pakistan is passing through a transitionary phase and all institutions must maintain higher ethical and moral standards in a world that is becoming a glass house.

Published in The Express Tribune, June 7^th, 2020.

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