The image of a sitting judge shedding tears in a courtroom is a rather awkward one. Judges are not supposed to exhibit any overt emotions in the courtroom. But on March 30, 2022, media personnel covering the suo moto hearings against the Election Commission of Pakistan (ECP) at Pakistan’s Supreme Court reported that the Chief Justice of Pakistan (CJP) Umar Ata Bandial broke down while alleging that his family and families of some other judges were being humiliated. 

He lamented that he was under a lot of stress. At least four senior judges of the Supreme Court have publicly questioned his style of judging and also his insistence on formulating panels that largely include ‘brother judges’ who are always likely to agree with him. 

Everyone present in the courtroom was taken aback by the CJP’s emotional display, as were the court reporters. They were all left scratching their heads, wondering whether the CJP was ‘fit’ to head a highly charged suo moto hearing that has become the latest expression of the heated tussle and tension between the current coalition government and Imran Khan — the former prime minister who was ousted last April through a vote of no confidence.

The government has often accused some Supreme Court and high court judges (including the CJP) of having a ‘soft corner’ for Khan and for constantly ‘providing him relief’ in the various cases that he is facing. 

While it may be near impossible for judges to remain rational, objective and emotionless at all times, the chief justice’s tears in court have not set a good precedent

By the time this column goes into print, the CJP must have already given his verdict. It is likely to be intensely contested, thus deepening a political crisis of which the courts too have become a party. Whatever the verdict, one way or the other, it is bound to trigger anger either in the government, or in Imran’s party. But those who were questioning the maintainability and the quality of a hearing headed by an ‘emotional judge’ were justified. 

In the 2013 issue of Northern Ireland Legal Quarterly, professor of law Terry A. Maroney wrote that, traditionally, the absence of emotion is a marker of judicial competence. In a 1994 article for The New Republic, the former US attorney general Jeffery Rosen wrote, “Calling a judge emotional is considered a stinging insult.”

According to Maroney, the dichotomy between reason and emotion is highly relevant to law. As law was aligned with reason, it necessarily was positioned as the opposite of emotion.

In 1988, the former Associate Justice of the US Supreme Court William J. Brennan wrote that judges fulfilled their responsibility by “taming the emotions of litigants, ignoring those of the public, and divesting themselves of their own.”

An entirely rational judge is an ideal that was formed by the 18th century ‘Age of Reason’ or the Enlightenment. According to Maroney, this ideal can be hard to emulate. In 1944, an associate judge of the US Supreme Court Robert H. Jackson wrote, “Emotionless judges are mythical beings like Santa Claus.”

Maroney agrees that there are no truly emotionless judges as such. 

In his 1930 book Law and the Modern Mind, the legal philosopher Jerome Frank claimed that, “Judges routinely were led astray by childish emotional drives and fantasies and should instead inspire to emotional maturity.” 

It isn’t that ‘emotional judges’ have found some sort of universal acceptance. Far from it. But debates around the ideal of an entirely rational and emotionless judge have produced some interesting outcomes. Maroney mentions the need for judges to ‘regulate emotion’, either by preventing its emergence or by walling off its influence. 

In a 2022 study in the journal Psychiatry, Psychology and Law, KM Snider, PG Devereux and MK Miller wrote that though the ideal of a dispassionate judge persists, judges are regularly exposed to a wide range of emotions and stressors in the course of their work. But most judges are known to regulate emotions (instead of suppressing them altogether). 

The study explores how judges regulate their own emotional experience in court. Judges reported using a variety of intrinsic (self-directed) and extrinsic (directed toward others) emotion regulation strategies. Some reported using strategies such as suppression of emotions more frequently than others. 

Many judges also reported that emotion regulation is a difficult and unacknowledged part of their work, and is an area in which they lack formal training. According to the study, managing or regulating emotions is an important role. It is a skill that is needed for displaying impartiality. The study concludes that providing training to judges to assist them in their emotional regulation efforts can ultimately improve both the legal setting and the professional experiences of judges in and out of the courtroom. 

Indeed, the ideal of the entirely rational, objective and emotionless judge is an almost impossible one to follow. But, as we have seen, most law scholars who understand this and empathise with the role of judges also see the display of emotions by a judge or the possibility of emotions influencing their judgments as a serious issue. They emphasise the increasing need to facilitate the skill of judges to regulate emotions in courtrooms and within themselves.

Another question that arises is, what if, instead of the CJP, it were the newly appointed Chief Justice of the Peshawar High Court Musarat Hilali who had shed tears in the courtroom? Hilali is a woman. There is every likelihood that criticism against her would have been brutal. In a May 2011 study for the Journal of Politics, the political scientist Dr. Deborah J. Brooks wrote that responses differ when people see a male candidate shedding tears and when they see a female candidate doing the same. 

According to Brooks, female politicians believe that they have to try that much harder not to cry in public, because they would be seen as being weak, vulnerable and ‘sentimental’. On the other hand, a male politician is more likely to get away with it. In fact, as is often the case with Turkey’s president Recep Tayyip Erdogan, if a male politician sheds tears, he is likely to be perceived as being ‘human’, whereas a woman politician may come across as being ‘too emotional’ (and thus not fit for a political position). 

The CJP has not set a good precedent. He needs to work on his skills to regulate emotions, especially when they are running high in a crisis-laden country. Demonstrating emotions may also be perceived as a way to attract sympathy. Judges need to attract admiration for their impartiality and their skill to be the voice of reason in a charged atmosphere. Not for becoming yet another wailing voice in an environment already full of wailers.

Published in Dawn, EOS, April 9th, 2023