On February 24, 2014, a Lebanese court ruled in favor of Ju
dge Randa Yaqzan in her case against al-Akhbar newspaper and journalist Mohamed Nazzal. Following the ruling, the convicted media outlet (al-Akhbar) criticized the court, going as far as questioning the legitimacy of the court’s right to examine other cases pending before it.[1] By doing so, al-Akhbar seemed to switch roles with the court: turning the newspaper’s trial by the court into a “trial” of the latter.
The newspaper’s “revolt” followed a string of media stances critical of judicial action, most prominently the indictment issued in the case of domestic violence against the victim, Roula Yaacoub.[2] In fact, some of this criticism took the form of holding the courts accountable to the people, sometimes with the support of human rights organizations. One example is the protest held by feminist collective Nasawiya on July 1, 2013, after a number of the group’s activists were assaulted by MP Nadim Gemayel’s bodyguards in Beirut.
Such increasingly acute and frequent criticism has evoked, especially among judges, the general feeling that judicial activity will be placed under greater scrutiny by the media. Instead of conceiving this new reality as a move towards greater accountability, and thus paving the way for a stronger relationship between the media and the judiciary, it has often led to a wholesale refusal or shunning of the benefits and potential for cooperation. Meanwhile, a number of stereotypical notions have repeatedly been put forward, all of which portray the relationship between the judiciary and the media as harmful to the former and necessarily negative.
Such stereotypes are likely to prevent the development of reform initiatives among those affiliated with these two professional bodies. More importantly, these stereotypes are also likely to prevent any rational handling of their apprehension. This in turn can lead to reinforcing stereotypes and reducing the likelihood of overcoming them.
It is thus important to inquire into how the status-quo can be changed, and its negative effects prevented. A number of recent interactions between the Supreme Judicial Council (SJC)[3] and journalists[4] suggest that such a change can be successful.
A Stereotypical Relationship
In a statement issued on March 4, 2014 commenting on press articles that addressed the Court of Publications, the SJC laid down what seems to be a set of its own intellectual principles. In reality, such principles represent a return to the main elements of the stereotypical judicial view, which denies the legitimacy of media criticisms of the judiciary in order to safeguard the latter’s dignity.
The most prominent of such principles include:
First, that rectifying judicial flaws should not take place through the media, but rather through official judicial bodies. One such body is the SJC itself, which spares no effort when it comes to regulating the judiciary. Similarly, with regard to rulings, judicial review procedures should be followed.
In effect, even when it is acknowledged that judicial regulations or rulings contain flaws, the media is denied any role in reforming them or informing the public about them.
Second, that the dignity (haybah) of the judiciary and of judges should be safeguarded, and that the role of the media, like other driving forces in society, resides in preserving such dignity.
The third principle, and possibly the main pillar of the process of stereotyping, can be discerned from the SJC’s rush to portray media criticisms of the Court of Publications as a direct attack on the judiciary as a whole. Such a stance reflects excessive sensitivity, as well as a traditional tendency of judicial institutions to resort to generalization whenever a specific judicial action is subjected to criticism of any kind. The ruling issued by the Court of Publications in the case of Judge Yaqzan followed the same trend. The newspaper article examined by the court addressed the involvement of two judges in the release of several major drug dealers, but the SJC ruling stated that it targeted the judiciary as a whole.
This tendency to strip any criticism of its factual basis by turning it into general criticism appeals to the sense of solidarity among judges. It also frees judicial institutions from the burden of providing answers to specific issues raised. Moreover, it portrays the media as taking advantage of individual and unrelated mistakes in order to pounce on and attack the judiciary, without any intention of reform; something worthy of condemnation of true. In other words, media criticism is at best portrayed as something good (relating to the mistakes of specific judges) and invoked to do evil (harm the judiciary as a whole).
These stereotypes would not have persisted had it not been for a similar and tendency among many journalists to jump to conclusions. Whether out of ignorance or laziness, this tendency ultimately leads to journalists putting all judges in the same basket.
Indicative of this is their approach to judicial authority as being reduced to a particular apparatus (the SJC), or as a unified and cohesive entity. Judicial authority is in fact spread among hundreds of judges, who work in different courts and should be ruling independently, without interference from anyone, not even the SJC. Journalists rarely exert any effort to focus on particular flaws and avoid the kind of generalizations, even in passing, that they are accused of.
Thus the judicial stereotype seems to feed off the media stereotype, which it in turn feeds. This vicious circle generally and most often leads to raising additional barriers between the judiciary and the media. It is worth noting that such stereotypes are strong enough to keep resurfacing, even after official and unofficial pledges to overcome them. This shows how much they dominate the consciousness of both the media and the judiciary. It also highlights the weakness of other considerations, such as transparency, the independence of the judiciary or the importance of incentivizing the pioneering role of judges.
Perhaps the best evidence of the dominance of these stereotypes is the SJC’s Media Office statement issued on January 31, 2014. The statement declares that it is impermissible for the media to discuss cases that are still being examined by the courts, such as the Roula Yaacoub case. This seems at odds with the original designation of the office as a tool to regulate responses to the media as a means of strengthening transparency and abiding by its requirements.[5]
Negative Aspects of the Stereotypical Relationship
As a result of such stereotypes, the mounting crisis between the media and the judiciary dominates public discussion, with negative effects, most prominently the following two:
The first is that of suppressing or marginalizing all the potential benefits of discussing judicial affairs by the media, arguing that the harm from media coverage is likely to outweigh any benefits. Judicial flaws, this logic insists, must be rectified through legal procedures (the Judicial Inspection Committee). This is despite the fact that over the past two decades, such procedures have been almost completely ineffectual. Meanwhile, the role played by the media in exposing judicial corruption is often forgotten.
In the same vein, the harm resulting from media coverage of judicial affairs is exaggerated, while the harm resulting from other, more dangerous, factors is underrated. The interference of political authorities, which targets the judiciary and compromises its independence, is one such example. Barring media coverage inevitably prevents the exposure of such interference.
Within the same context, past forms of cooperation between judges and journalists, which could have undermined these stereotypes, are largely suppressed in the judiciary’s collective memory. Examples of this include movements that had set up specialized media platforms, such as the Judicial Studies’ Circle (1969-1972), or made use of existing ones, such as the Temporary Judicial Committee (1980 and 1982), to defend the judiciary’s material and moral interests. Similarly suppressed is the memory of judges who, in the late 1980s and early 1990s, resorted to publishing memos, some of which were letters of resignation warning the public against the threat posed by low wages to the independence of judges.[6]
Other suppressed memories include instances of active media pressure on state authorities to enforce judicial rulings, such as those issued by Summary Affairs Judges in several courts (e.g., Cynthia Kasarji, Zalfa al-Hassan and Mireille Haddad) in favor of Iraqi refugees. Issued in 2009 and 2010, these rulings aimed at putting a stop to blatantly unjust practices, such as arbitrary detention employed by the General Directorate of General Security.[7] Other examples include rulings that were intended to do justice to certain segments of society exposed to chronic legal or social prejudice. Such rulings have the potential to strengthen the social standing of the judicial authority, in contrast to a political one, at least in the eyes of the groups facing discrimination.
The second, and no less dangerous, effect of stereotyping is that of limiting the debate to whether or not the media has the right to discuss judicial affairs. The binary formula of dignity of the judiciary versus freedom of the press blocks out all other questions such as: those of the judiciary’s organization and traditions; the ethics of media coverage of the judiciary; the potential contribution of the media to shaping public opinion in favor of judicial reform; or positive and responsible approaches to dealing with reasonable concerns by the judiciary of potential abuse of media coverage.
Such concerns are heightened by the feeling, shared by most judges, that the current judiciary is too weak to stand up to such abuse, in the absence of regulatory mechanisms to keep media criticism in check. The judges tend to have little faith in the motives of the media linked to influential political forces.
But a total ban on media coverage is near impossible legally or practically, and runs counter to basic principles of democracy. Addressing the shortcomings of media coverage should be through regulating such coverage, not banning it entirely.
How to Alter the Judicial Attitude Towards the Media
The starting point of changing the judiciary’s attitude towards the media is not to blow the “dangers” of the media out of proportion and to keep public interest in mind. Such an exaggeration would eclipse the potential role the media can play in safeguarding judicial independence in the face of interference by influential forces. Recalling instances of cooperation between the media and the judiciary, such as those mentioned above, would help in this regard. Overcoming a number of deep-seated traditional notions about the judiciary might also help.
The first notion that needs to be questioned is the prestige of the judiciary (haybah). With its undertones of awe and fear, such a concept is completely at odds with the idea of justice. The recognition and rectification of flaws in judicial work, as well as defending its independence, brings real dignity to the judicial profession. Ignoring such flaws and interference does not. Moreover, the judiciary will not gain the people’s trust by remaining silent about the major questions being raised, but rather, by providing clear and convincing answers to them. Trust in the judiciary would thus grow in proportion to the transparency it shows in its work.
The second aspect to question is the monopoly held by the Supreme Judicial Council when it comes to judicial reform. In contrast to the SJC’s own claims, facts show the SJC has been unable to single handedly carry out such a task. And while its powers remain limited, its members do not enjoy any kind of immunity. Indeed, what have judicial councils done in the face of the obstinacy shown by politicians regarding judicial appointments?
This does not necessarily mean disparaging the SJC’s abilities or the strength of its resolve. Nor does it mean shedding doubt on its intentions. Rather, the aim is merely to realistically and objectively assess the magnitude of the task at hand. Such a task requires a tremendous amount of social effort to counter the pressure exerted on the judiciary by influential forces. While the SJC demands the support of social forces in preserving the dignity of the judiciary, it denies such forces any role in reforming judicial practice.
The third notion to consider is that of interference in the affairs of the judiciary. Judicial institutions often portray media criticism as sowing confusion and interfering in the work of the judiciary.[8] The fact is that such apprehensions, as important as they might be, suggest a narrow and partial view of things.
The prevalent culture within the judiciary is not one in which the judiciary is independent, only for the media coverage to undermine it. On the contrary, the culture of interference is the norm. Influential actors do interfere in judicial affairs, whether directly or through mediators, without running any risk of prosecution for such a criminal act.
Within such a context, [media] criticism directed at the judiciary is primarily meant to expose such interference, or at least to bring a certain amount of balance to an unbalanced reality. Media “interference” is public and its arguments are available to respond to and debate. The media is also liable to prosecution in cases of abuse. Meanwhile, non-media interference is clandestine and usually through illegitimate means, such as intimidation or enticement. It is by its very nature not open to responses or debate, and its discreteness, among other things, shields it from prosecution.
It is therefore quite telling that the SJC, along with Public Prosecution offices at every level and the community of judges at large, would remain silent in the face of political and judicial interference in the work of the judiciary. Indeed, while they never tackle such interference publicly, they raise an uproar every time the media addresses a judicial topic.
The fourth notion to reconsider is the obligation of discretion and that of judicial traditions. Official judicial discourse justifies its opposition to media coverage, by invoking the obligations of objectivity and discretion which bar it from getting involved in media controversies.[9]
Setting up the SJC Media Office marked a major breakthrough towards regulating the right to respond and to clarify issues connected to the judiciary. Yet, close examination of its activity reveals a number of shortcomings. Indeed, through its Media Office statements, the SJC seems to place its complete trust in the judges who have been criticised regardless of whether their deeds are deemed worthy of such trust. Meanwhile, it avoids answering any of the questions raised in the media. The jury, however, is still out on the media office. It is hoped that the SJCs approach will develop and evolve as it gains further experience in dealing with the media.
The fifth notion to reconsider is the intentional or unintentional tendency to accuse the media of generalization, often as a result of excessive sensitivity or a desire to avoid responding to the actual content of the accusation. Responses rarely concern the content, which most often addresses specific facts.
A more suitable approach by the judiciary would be to give journalists the benefit of the doubt until proven otherwise. Generalizations [by the media] should not preclude examining the soundness of criticism and responding to it. If such criticism proves true, it should not be dealt with as an attempt to antagonize and undermine the judiciary. Rather, it could be seen as expressing a general feeling of diminished public trust in the judiciary, tantamount to calling upon judicial institutions to do what needs to be done to restore such trust.
How to Break the Stereotype from the Media’s Perspective
Media outlets, individually or collectively, might benefit from formulating clear editorial policies on how to approach judicial issues, in light of the social function they ascribe to the judiciary. Important issues to consider when formulating such policies include:
Reconsidering the stereotypical role played by the media in the judicial field. The media has a larger role to play in relation to the judiciary beyond criticizing it and holding it accountable.
Without taking away from the importance of the latter role, media outlets also bear other crucial responsibilities. Chief among them is that of covering socially charged judicial cases and turning them into public issues, with would strengthen the judiciary’s social standing. Another responsibility involves highlighting the positive initiatives taken by judges, which sometimes fill serious gaps in the work of institutions and other government bodies. As mentioned above, the media has played such a role in the past. Indeed, there were instances in which judges and journalists complemented each other’s efforts in holding state authorities to account.
Finally, and perhaps most importantly, one of the media’s main roles should be to oversee the sound application of the principle of separation of powers. It should expose interference in the work of the judiciary and highlight initiatives taken by judges to protect their independence. In more general terms, it should significantly emphasize the problems faced by judges in relation to their independence.
The key is to play these roles in a balanced manner and as part of a comprehensive vision or approach. Enthusiasm for criticizing judicial action can be balanced out with equivalent enthusiasm for defending the judiciary against those who interfere in its work, or compromise its independence. Similarly, criticism of a judge who yielded to interference should be counterbalanced with equally harsh or even harsher criticism of those who interfered in the judge’s work. This makes the criticism of the existing situation a constructive one by linking it to a vision of what the judiciary should be like in the future. It would likely reduce apprehensions among judges, with the media investing in improving and strengthening the judiciary in the future rather than acting -in a stereotypical fashion- as a conduit of pressure against the judiciary by influential forces.
Departing from the stereotypical understanding of the judiciary and of its role within Lebanon’s political and social systems. Contrary to assumptions by some media actors, the judiciary is not a unified body made up of professionals whose inclinations, traditions and positions are one and the same. Judicial authority is dispersed among hundreds of judges, allowing for considerable diversity in views, interpretations and stances. This stands in stark contrast to the state of affairs of the legislative and executive branches of government.
Therefore, there are inevitable differences among judges. These vary according to how close the latter are to centers of influence, how independent, how open to the media, or how willing they are to develop jurisprudence or respond to social issues. It expected that judges are differently disposed towards the media’s growing concern with judicial affairs. Those benefiting from silencing the media tend to completely reject media criticism. Meanwhile, others (mostly among those less famous and far removed from high-ranking judicial positions) might view media criticism and the subsequent transformation in their work environment as an opportunity to restore their dignity, and help them in their unspoken battles against the various centers of influence.
It is therefore important for the media to understand these differences, formulate its strategies in light of them and reflect them in its work, without resorting to stereotypes and generalizations.
Being open and receptive to mechanisms regulating responses, objections and accountability on the part of the judiciary, such as the novel experience of the SJC Media Office. These mechanisms themselves should, at the same time, be subjected to revision and criticism aimed at improving their performance. The legitimacy of media oversight over the work of judges can be strengthened by ensuring the latter’s right to respond and hold the media accountable [without power games coming into play]. It can also be strengthened by the willingness to humbly admit to one’s mistakes when they occur.
Adopting high professional standards when selecting those who cover judicial topics. The latter should be reasonably specialized, and exhibit a high standards of objectivity and integrity. Such characteristics would certainly reduce mistakes or media slipups. They would also ensure a more accurate understanding of judicial regulations and their components, as well as a broader understanding of the mechanisms of the work of the judiciary.
Avoiding exaggeration and media sensationalism when addressing judicial issues. Excessive pandering to populist emotions by declaring unconditional solidarity with particular segments of society, regardless of the rightfulness of their cause, should also be avoided.
Adopting a relativistic approach when dealing with judicial errors by distinguishing between major and minor ones. It would be inappropriate, for instance, to hold a judge accountable for a minor mistake the same way a judge would be held accountable for collecting a bribe or a commission, or for abusing their influence.
These are merely a few ideas for overcoming stereotypes in the relationship between the judiciary and the media, on the part of both professional bodies. The dignity of the judiciary grows stronger when it is transparent, just as the beacon of the freedom of the press shines brighter when it broadens its horizons of knowledge-seeking and good citizenship practices. Ultimately, experience remains the best way for these ideas to mature, deepen and self-rectify.
[This article was originally published on Legal Agenda and is republished on Jadaliyya in accordance with a collaborative agreement between them. This article is an edited translation from Arabic.]