To livestream or not?

The decision of the chief justice of Pakistan to livestream the hearing on the constitutionality of the SC Practice and Procedure Act, 2023 was greatly appreciated by me. I enjoyed watching the livestream, learned beyond what I expected and had a field day discussing it with other legal aficionados.

Lawyer groups on WhatsApp were abuzz and live commentary on the proceedings was the order of the day. It was akin to a Pakistan-India cricket match, everybody with any interest in the Supreme Court watching the proceedings closely, including journalists and court reporters. This was indeed revolutionary, and I applaud the chief justice’s decision to livestream SC proceedings.

Indian court proceedings, of multifarious types, are already available on Youtube. Many lawyers like myself often watch those proceedings, at times to learn and at times out of general curiosity. In any event, livestreaming proceedings represents a giant leap towards transparency and accountability within the judicial system, enabling the public to witness the intricacies of court proceedings and fostering a deeper understanding of constitutional matters, matters which would affect their lives one way or the other. The advantages of livestreaming are undeniable, and often repeated, but today I write to address the potential drawbacks, and if they can be countered.

The first point to make is regarding the fundamentals of the art of legal argument. Renowned jurist Ronald Dworkin is famous for his theory of jurisprudence that the law is actually contained in arguments and is developed through an ‘argumentative attitude’. As any litigator will know, legal arguments are the result of a comprehensive process of drafting, researching the law and translating the facts of the case into a narrative. Therefore whenever an advocate will argue before the courts, s/he would do it in a manner that the facts of the case and the law involved are presented in the best light to achieve a desired order or judgment.

When short clips can be cut out from such proceedings, especially of comments or questions by the court itself, it has the risk of negatively impacting the credibility of both the bar and the bench, and thus of the judiciary as a whole.

Since India started live streaming way back in 2018, the Indian example is before our eyes, where short clips on YouTube and TikTok are uploaded with captions such as “Judge ne Wakeel ki class leli” and “Judge spreads Hinduism”. This does not only put the reputation and credibility of the justice system in peril, but is also a great danger for sub judice matters, which even otherwise must not be discussed in the public domain, but while mainstream media can be controlled, the same safeguards cannot be applied to social media. The solution is simple: livestreams should only be broadcast on the Supreme Court’s own website or application and must have a firewall that can protect distribution without permission.

The second point is with regard to a core function of the judicial system. The courts are not created to take popular decisions, unlike other representative institutions such as the executive and the legislature. When proceedings are livestreamed it may lead to judges being cautious while pronouncing unpopular judgments and lawyers may feel the need to self-censor during arguments so as not to risk themselves to public deprecation, and therefore will not be able to put their client’s best case before the courts. One can easily think of religiously sensitive cases for which livestreaming would make it difficult for an advocate to make his/her arguments to the fullest capability. In this respect, Pakistan will have to design rules for livestreaming in line with its political and social realities and the example of the UK or Japan would be erroneous.

The third point is the psychology effect. Every individual, including lawyers and judges, craves public admiration. If proceedings are livestreamed, just as with judges and lawyers censoring themselves from making unpopular remarks, they may on the other hand start delivering popular remarks. This is clear from the Indian judiciary, where judges have often started making rhetorical comments, sometimes even speeches, about justice and patriotism. These oral remarks are even otherwise not binding on the parties, unlike the written judgment, but with a new audience on television or the internet, judges and lawyers may start playing to the gallery, further damaging the neutrality and credibility of the judicial system.

With all due respect, one may argue that even in the SC Practice and Procedure Act case, at least some remarks were made which had nothing to do with the case at hand. No doubt there is a counter-argument to this critique: wouldn’t it actually improve conduct if the proceedings are livestreamed? My simple answer to that is the proceedings of the National Assembly which are also livestreamed; how many times have we seen loud shouting and punches being traded on the floor of the National Assembly?

The final argument is with regard to another fundamental of court proceedings and related to point one; oral arguments are important but not the entirety of the proceedings, and documents on record are just as important as oral arguments, if not more. So whenever a lawyer proceeds on a public interest matter, the court reporter before reporting on it seeks to obtain the pleadings of the parties, only then can s/he understand the case.

The judge and the lawyer have the files while proceeding, unfortunately the viewer of the livestream does not. This means that at many a times while a case is livestreamed, it is just a part of the entirety of the case and therefore may be misunderstood by the public at large, once again having a domino effect on the credibility of the judiciary and accentuating the very effect that the principle against public discussion on sub judice matters avoids.

The purpose behind making these points is to foster a discussion on how livestreaming should work in the future. I am a great supporter of the idea that livestreaming of all court proceedings should start, making the institution more accountable and providing a great learning opportunity for students of law and political science. The Supreme Court has held that the real engines for jurisprudence are the high courts, and therefore I back the notion that proceedings of the high courts must be livestreamed. Livestreaming of court proceedings is available in the UK and Indian Supreme Courts, among others, but photography is not allowed in the US Supreme Court. Therefore there is no exclusive formula.

I think it appropriate that a full court meeting of the Supreme Court decide on rules regarding which cases may or may not be livestreamed and under what circumstances. The National Judicial (Policy Making) Committee, Law & Justice Commission of Pakistan and the bar councils and associations must also put forward their suggestions. Pakistan must livestream its courts, but with appropriate safeguards. Ironically, the SC Practice and Procedure case itself is about containing the arbitrary discretion of the chief justice of Pakistan regarding formation of benches, and so whether to livestream or not must also be decided according to established rules.

The writer is a Karachi-based barrister practising constitutional and administrative law.