In the age of social media, a judge shouldn’t say that …
By Guy Laffineur, honorary magistrate
A Ghent examining magistrate targeted by a request for disqualification agrees to waive the investigation of a case for which she is responsible, thus implicitly admitting to having, through several messages posted on Twitter, revealed a certain bias. This information will come as no surprise as it is currently accepted in public opinion that in a democracy, a magistrate is free to express himself like any other citizen. This is nothing new. In the wake of May 68, magistrates gradually formed representative organizations so as not to limit themselves to defending their status but also to tend to express their vision of justice and, beyond, societal opinions more broadly, even politically oriented. .
Such a trendy development was, on the whole, fairly well received by public opinion. It was time, it was admitted, to dust off the judicial institution, to modernize it, to make it more transparent, closer to the litigant and his concerns. Won over by this movement, some prominent magistrates have gradually been solicited by the written, spoken or televised press to be questioned and speak individually on current legal cases or even about events of the topicality sometimes having only a rather distant connection with the theme of justice.
The army often qualified as “big mute” is less and less. Justice is hardly any more. Does this development constitute progress? Yes, undoubtedly insofar as the judicial system and its functioning have become more understandable in the eyes of litigants thanks to a few magistrates speaking through the media with a certain pedagogical talent. In addition, the magistrates who agree to speak publicly offer a less hieratic and more human image of their function and their role. On the other hand, when one or the other member of the judiciary called upon to express himself in the media goes beyond the strictly judicial framework and exposes, in a more or less explicit manner, his political or partisan opinions, his remarks do they risk not to be perceived as representative of all the members of the judiciary and thus undermine citizens’ confidence in the neutrality of the judiciary? Moreover, the litigant who finds himself in the courtroom before a judge whose political or ideological orientation he has been able to detect by having heard him express himself publicly can only have the feeling, rightly or wrongly, that he will be judged in a partial manner. That, in a strictly private family or friendly circle, a magistrate expresses opinions, even marginal or radical, at will, does not give rise to any objection. Having chosen this demanding profession, the judge normally aware of his ethical obligations is required in the exercise of his function of judging, to depart from his a priori and there is every reason to hope that he will succeed.
Towards a return to discretion?
But in the age of social networks, a number of magistrates are more and more often tempted to express themselves on current affairs or societal themes, in particular through forums whose public or semi-public nature is not. not always clearly perceived by those who deliver their opinions to it. In this context, in particular, should the judge not cultivate the art of discretion and show the greatest reserve? A survey published in 2016 reveals that more than half of Belgians do not “tend to” or “not at all” trust the courts. The discredit with regard to the judicial institution and the mistrust, even contempt, displayed more and more openly towards the magistracy and the members who compose it by a part of the opinion and the political class cannot be explained. do they not, at least in part, by repeated breaches of the duty of reserve?