Public Expressions of Judges: Navigating Between Freedom & Responsibility

Andrea Chis serves as Judge at the Superior Council of Magistracy of Romania. She is also an Executive Board Member of the European Network of Councils for the Judiciary.

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Expressing one’s opinion as a judge in the public space is a form of manifesting his or her freedom of speech, freedom that also implies a corresponding responsibility due to the function of administering justice that (s)he exercises. The public does not (always) distinguish between the judge and the (wo)man behind the robe. Inappropriate manifestations can have consequences not only for the professional reputation of the judge, but also for the public image of the judiciary and for trust in the act of justice. Therefore, before choosing as judges to express an opinion addressed to the general public or which can become public, we should answer a few questions.

First of all, we should clarify why we want to express ourselves publicly, what we pursue through our message, what values we express and what principles we defend. This “why” can be related to our convictions, to our deep beliefs, to what motivates us to be who we are. To answer this question, we need to consider the effect that we wish to achieve or that our opinion can have. We need to ask whether a public message solves or creates a problem, whether it gives rise to a constructive debate or a destructive one. Any doubt about this should mean no. Taking risks is contraindicated.

Another question concerns who is the one who expresses himself or herself: a person, an individual judge, a person occupying a position in the hierarchy of the judiciary, or a representative of a professional association. Clarifying the role answers the question of whom I represent and it is important from two perspectives: the limits of the obligation of reserve (broader in the case of persons with management positions) and the association of the message with a certain institution from the judiciary. When we express a personal and not an institutional opinion, in particular while holding a leading position or being part of a collegiate body (such as a judicial council), it is imperative to specify this fact (returning, of course, to the “why” and in particular why we have a minority opinion or one which differs from that of the institution we represent). In order not to fall into the ego trap, the feedback of colleagues is very important. There is a significant difference between courage accompanied by responsibility and nonconformism. If our opinion is rejected by the majority of the judiciary, it could also mean that the opinion is not valid or the proposed solution is premature, or that we have not explained it enough or we have not understood the context. It takes a reality check to find out if there are also other colleagues who think like us. We should ask ourselves if it is appropriate to express ourselves individually (and if we are the most suitable person to convey a particular message — why me?) or, on the contrary, if to achieve its purpose, the message should be a collective one. Associating with other fellow judges increases the impact of the message and, even if it might seem slightly opportunistic, it could protect us from disciplinary liability.

We need to know who we are addressing, who our audience is, because, depending on this, we will choose the topic and the language in which to communicate. We should also be aware of the possibility of others sharing our message on social media or of our message being reflected in the press. When speaking directly to the press, we should know, even if we are not a press judge, the profile of the TV or radio station, of the reporter, and of the audience, to be able to provide the most appropriate answers. It is preferable to respond in written form so that we can review the answers. Pay attention to what “off the record” means and to the use of informal communication with the media. We should never provide information that cannot be proven or that constitutes professional secrets. When asked to participate in a live TV or radio programme, we need an experience in communicating with the media and good verbal and non-verbal communication skills.

When choosing the message, the questions are: what we want to communicate (legal education, the image of a human judge, opinion on laws or public policies in the judiciary, etc.); how we choose the topics; how often we manifest ourselves publicly (beware the need for attention!); how well informed we are; or how much of the message represents a value judgment. We need to balance the quantity, the quality of the message and the timing required by a particular context. When the values of the rule of law are in danger, public expression is no longer just a simple right, but becomes an obligation of the judge, which can be manifested in various forms, including collective public protests.

How do we express ourselves publicly? Tone makes the music. The text may be formal or informal depending on the nature of the channel used and the information transmitted. It is recommended to have a structure, in order to be easily understood and to avoid possible distortions of the message. Words are important. They must be chosen carefully. Words can create emotions, change beliefs and behaviors. Caution is necessary when posting images, especially if they are about our personal lives. We can reach out to the general public by presenting a human face of a judge, a person with passions and hobbies like everyone else. Beware, however, of perception.

 Instead of a conclusion, I choose to say that what I have written above is an introspection, representing my personal opinion and it is based on my experience in public communication.