The Supreme Judicial Council (SJC) has recently amended the code of conduct for Supreme Court and high court judges. The SJC derives its powers from Article 211 (8) of the constitution.
An amendment in clause 5 thereof places restrictions upon the freedom of speech of judges in extra-judicial activities. The amendment to the code of conduct can be examined in light of international practices to determine whether it discourages conduct unbecoming of a judge and whether its violation constitutes misconduct, or if it imposes unnecessary fetters on the rights and duties of a judge that undermine the independence of the judiciary.
Constitutional theorists have identified specific values which every state needs to protect. These values include the freedoms of speech and press, which extend to social and electronic media. The means employed to protect these values are the charters of rights usually entrenched in national constitutions and international conventions. Global and regional organisations like the UN, EU etc, have their own charters that guarantee these rights. Signatories to these charters and restrictions may incur sanctions for violating them.
In the wake of a revolution in social and electronic media over the past two decades, governments all over the world are finding it hard to maintain a balance between these values and the social and political order, which is necessary for an organised society. The unruly horse of social media refuses to be tamed. Harsh regulations are being set in place and laws are being enacted to control speech. The pendulum has swung to the other extreme and freedom of speech is now under serious threat in many countries. Firewalls, filters and penal legislation are all being put in place.
In a world where facts can be faked and reality gets blurred in the mist of half-truths, states and individuals find it hard to make informed and correct decisions. Excessive regulation and imprisonment of dissenters may sometimes undermine the most cherished values for which humanity has suffered for centuries. These freedoms are the greatest achievements of the human race, but now even constitutional protections seem to be failing to uphold those values.
These values and freedoms are very critical for a society. Development and progress in all fields of life that humanity has witnessed during the last two centuries owe largely to these freedoms. It is for this reason that most modern constitutions, drawing inspiration from the American constitution, provide for the means to protect these values, including an independent judiciary, which is one of the most effective means to safeguard these values and freedoms.
Thus, the oath of a judge of a superior court, in all modern constitutions, provides for three vital commitments – to defend, to protect and to uphold the constitution. A judge, therefore, has the duty to protect and defend those rights for which the constitutions also protect the security of tenure and terms of service.
Judges defend and protect the constitution through judicial and extrajudicial functions and, as citizens of the state, judges also have these rights as individuals. However, like any other constitutional office, the constitution imposes limitations on judges to follow the code of conduct prescribed for them. In addition thereto, the constitution also expects every judge to respect limitations laid down in the constitution, which includes the principle of separation of powers. A judge must not arrogate to themselves the functions of two other equally important branches of the government – the executive and the legislature.
Contrary to the general impression, these three branches of the government are not adversaries of each other. They are, in fact, ordained by the constitution(s) to protect those values in their own way. The object of separating these powers amongst different branches of the government is to secure liberties. It is highly improbable in a modern democratic state that the legislature would enact a law that takes away the freedoms of the people. A constitution, on the other hand, always provides means to protect collective freedoms and liberties.
The conduct of a superior court judge may have two facets — judicial and extrajudicial. Judicial conduct has its own requirements for which there are international and national covenants. The Bangalore Declaration of 2002 provides a code of conduct for judges of the superior courts. It laid down six values – independence, impartiality, integrity, propriety, equality and competence. These values need to be balanced against constitutional duties of the judges, which most fundamentally include upholding the constitution and rights of the people.
The new amendment provides that a judge shall not engage in any public controversy, whether by way of speech, writing, debate or comment at any forum, and least of all political questions, even if such questions involve a question of law. It provides that a judge shall not have any interaction with the media, especially in relation to issues which may give rise to public debate or adversely affect institutional collegiality and discipline.
The doctrine of political questions laid down in Baker v Carr by the US Supreme Court (1962) was buried in the Nawaz Sharif Case (1993) by the Supreme Court of Pakistan. The constitution provides for a democratic, federal and parliamentary form of government. In addition to the electoral controversies, qualifications and disqualifications of members of parliament and the workings of the political parties are bound to come before the courts.
The final fate of a political party after a ban is placed on it by the executive may also be decided by the Supreme Court, as provided under Article 17 of the constitution. Any decision thereon by the judges of the superior courts cannot be termed as a political controversy or deemed as a political question. An interaction with the media and public statements may be qualified to pending cases, but judges owe a constitutional duty to protect constitutional values, and debate is one of the recognised ways to evaluate truth. It was axiomatically said by Holmes J: "Let the truth be tested at the marketplace of ideas".
How much of an ordinary citizen should or can a judge be? There may be a ban on political activities, but there is no restriction on a judge from casting his vote. Judges take part in social activities and may even be members of charities. They have, however, an obligation to disclose their interests while hearing any matter coming before them. It may occasion their recusal.
The foundational value underlying the whole issue of extrajudicial activities and a code of conduct for judges is that the public’s confidence in the impartiality of the judge must not be shaken. Judges used to address Bar Councils and seminars and even international law conferences. Chief Justice Cornelius addressed several international conferences. Justice Rustam Khan Kiani used to make speeches as a judge, which were later compiled into books.
Judges of the superior courts are judges under the constitution, which promises independence of the judiciary in its preamble. Open justice and free speech are the ultimate values that need to be protected rather than discouraged or denied.
The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan. He can be reached at: mwaqarranayahoo.com
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