The media and the courts

Justice is best conducted as an in camera affair

Justice Scalia of the Supreme Court of the United States (SCOTUS) is a man worthy of admiration. He is a man consistent in his views even if you might disagree with them. He is also a man who has clearly defined views on most things affecting the superior courts. One of those things is the access that media has to the courtroom.

Justice Scalia has consistently opposed the idea of television cameras in his courtroom. His reasoning is simple: what people will talk about on the evening news will be divorced from context and will be based on sound-bites. One of his major concerns is that such a practice will lessen the respect that SCOTUS commands in the US. SCOTUS consistently ranks higher than US Congress and presidents in terms of popularity with the people. Preserving this respect is important.

The Honourable Supreme Court of Pakistan does not allow TV cameras inside the courtroom. Yet the media coverage still manages to divorce things from context. This suggests that the level of maturity of the media in general can make an enormous amount of difference. Every remark made by justices in the US does not interfere as “breaking news”. The Pakistani media — electronic in particular — has saddled itself with responsibilities that no one ceded to them. It is as if they feel duty-bound to create an issue out of every simple statement made by the Supreme Court. Consider an example: last week, a justice of the Supreme Court of Pakistan made the remark that laws in conflict with the constitution can be struck down. Now that is Law 101. It is the most basic principle that sub-constitutional legislation conflicting with the constitution can be declared unconstitutional. Yet the media felt obligated to flash it on our screens till it was guaranteed to haunt lawyers and non-lawyers alike.

What this divorced-from-context reporting does is that it affects the reputation of the Supreme Court. It already is seen as an activist court. And no court wants to see itself labelled one way or the other — be it liberal or conservative. However, the media’s obsession with every sentence uttered by the justices harms not just people’s understanding of the law but the court’ s reputation — the Supreme Court would not want to be seen as shaking the earth around Islamabad every day.

Now this is not meant to suggest at all that free speech should be curtailed. The media should continue doing its job of reporting from the court — but it can and must do it in a more responsible manner. The media needs to educate itself about these things. One way of doing that is to start inviting legal academics instead of inviting only those lawyers who argue before the court or retired judges from particular political parties. Academics do not have a vested interest in creating sensationalism or positioning themselves a certain way. This is not meant to suggest that all lawyers do this but a certain number do. Academics can put things in context and that will do the people of Pakistan a lot of good. It will also help people understand that a lot of what the Supreme Court does and why it does it.

The responsibility of educating the people about the role of the Supreme Court also rests with ordinary people who understand the law and constitutional politics — lawyers and non-lawyers alike. Blogging is one way that now allows people sitting in their homes to educate the masses. If enough level-headed folks can come together and start a sane blog about the Supreme Court, then things will take a turn for the better.

The reason that educating the people about the Supreme Court in any country is important is because what the Supreme Court says will eventually affect us and our lives. And superior courts do keep an eye out for how the public reacts to certain rulings. But if we leave it to the electronic media, then the people can never react in an informed way since the electronic media hardly explains anything of relevance to the common man.

Our democracy is nascent and everyone with a modicum of responsibility in this country feels they know what this democracy should look like. That is not necessarily a bad thing. Democracy is richer when it is inclusive of different voices. However just because you have a loud voice does not mean you should drown out the rest. The electronic media in Pakistan has certain leanings and certain shortcomings. Its understanding of law is not flattering and its efforts to improve its shortcomings are lacking in vision. By holding the media accountable in the court of public opinion, we the people can compel it to change its ways.

The media values free speech and so do all rational human beings. However the media’s patience for any speech that does not congratulate it is sadly lacking. In a recent statement, a prominent journalist has said that the Pakistani media is “supra-liberal” — it just depends how selective you are in your assessment I suppose. If you want to forget Shias, non-Muslim minorities, the extremist narrative in general then yes maybe condemning drone attacks makes this media a supra-liberal one. How one defines a liberal in Pakistan is a puzzle I have not yet solved. However what even relatively newly minted lawyers like me know is that in the long run it will be the media that will hurt the respect and esteem of Pakistan’s courts. It is up to us to correct this — not just because we care about the courts but our more important duty is to educate the public when we know they are being needlessly misled. This is our democracy and the courts, whenever influenced by public opinion, should clearly see the difference between the voice of the citizen and that of the media. But they won’t be able to hear us unless we start talking.

The writer is a Barrister and has a Masters degree from Harvard Law School. He can be reached at [email protected] or on Twitter @wordoflaw