Three to four members of the judiciary have failed their fellow judges and magistrates, Justice Minister Austin Gatt has said. Interviewed by Jesmond Bonello, Dr Gatt made a strong appeal to these few members of the judiciary to change their lifestyle, insisting that a magistrate or judge should not be in nightclubs at 3 a.m. nor be in certain company.
In recent years you have been piloting reforms in the judiciary and the courts. Do you think the case, followed by the charges in court, involving former Chief Justice Noel Arrigo and Judge Patrick Vella will have a negative impact on this reform?
It will have an effect in all senses, both positive and negative. It is certainly having a negative effect on the public perception of judges and magistrates. The case has affected the confidence that existed in the courts as an institution and everyone has to make every effort for the judiciary to regain that confidence.
The case may also have a positive side in the sense that certain people will realise that certain lifestyles need to be changed because they can pose a real danger. The lifestyle of certain people who are in certain positions reflects on their office. In this sense, I hope it will have a positive effect. There is a lesson that needs to be learned.
Do you think people have lost faith in the judiciary?
I don't think so. People are asking questions and have become more suspicious and require more reassurance. But I don't think this case will eradicate the confidence which had been built over many years.
Obviously it has made people more assertive and more demanding of the members of the judiciary and I hope that the judiciary will rise to the occasion and give the correct answers.
What about you? Have you lost confidence in the judiciary?
No. I have reflected on this case for a long time and I honestly believe that, without going into the merits of the case, this is all about human failure, not the failure of a system.
It is related to the alleged personal behaviour of two individuals and should not reflect on the institutions and on the other judges and magistrates. It is an exceptional matter and should be regarded as such.
Should politicians assume responsibility for what has happened? I mean, should the political class be held responsible even if politicians are not directly involved?
I don't think so. I believe that a minister should assume political responsibility only for political decisions. The British tradition has become very popular because of the British tabloids and dailies and I don't think we should adopt such an approach
In Malta, we never had this tradition. For instance, between 1996 and 1998 the former Labour government employed people who had been found guilty of criminal offences by our courts.
A minister cannot be held responsible for an employee who has a clean criminal record but while he is employed with the ministry is charged with a criminal offence. I believe that sometimes we are taking such arguments too far and beyond reason.
If you had to extend this theory to the recent case of the two judges, we would have ended up with a scenario where the prime minister, who had recommended to the President to appoint Judge Noel Arrigo, would have to resign and Alfred Sant, who had recommended Judge Vella to then President Ugo Mifsud Bonnici, would also have to resign. This is an extension of the theory.
Last month, before the case of the two judges made headlines, you made a strong speech in parliament in which you mentioned a bill for Lm1,600 for fixed line telephony of a member of the judiciary and Lm400 per month for mobile phones of another member of the judiciary.
You had also made an appeal to the members of the judiciary to exercise self-discipline since the actions of just one or two were reflecting on all the members of the judiciary.
You also said that under the previous system for the transport of members of the judiciary, cars were sometimes rented at 3 a.m. and that there were instances when more than one car was rented to the same person.
When you put all these facts and the case of the two judges together.... don't you think the situation has got out of hand?
It is not out of control. Perhaps, there was an administrative problem but we have dealt with it.
I would like to point out that whenever I make such a speech, I would have spent months, as I did in the cases mentioned by you, with the chief justice trying to solve the problem internally and I would have spoken only because I would have no alternative internal solution.
So when people say that I shouldn't speak publicly, they should understand that when I do I would be doing so as a last resort.
I would prefer to solve such issues round a table but sometimes you get to a stage when you would have spent months trying to resolve delicate issues internally and getting nowhere.
I must also stress that we cannot generalise. The reality is that the administrative system evolved over the years and in the past no proper mechanism of control had been installed. It is true that there were some people who were under the wrong impression that 'everything goes'. But in no way will I link this kind of behaviour with what happened recently.
The most crucial point is lifestyle. More than anything else, the lifestyle a person, not just judges, leads must reflect the position the person occupies.
People expect ministers to behave in a certain way. For instance, if an ordinary man gets drunk at a festa, it is not usually considered a problem, but if a minister gets drunk - although he is supposedly enjoying himself as well - it is a big problem. What applies to ministers applies to magistrates and judges and people who hold public office.
Some people are calling for a reform at the judicial appointment stage. What is your opinion?
I don't agree. In reality this would mean trying to transpose an exceptional system applied in the United States and only to the Supreme Court, as far as I know, to a small country like Malta.
The reality in Malta is that while there might be a number of lawyers who would want to be judges, we have to see what type of judges we want. My ideal candidate for a judge would be a successful lawyer who has spent a good number of years at the law courts and who would be in the age bracket of 50 upwards and wants to end his career on the bench, or a magistrate who has proved his worth.
There are only between two and five falling in this category. It is very difficult to find the ideal lawyer who wants to become a judge.
I assume it is also a question of how much a lawyer earns from private practice and how much a judge earns. What do you think?
No country in the world pays a judge as much as he/she can earn out of private practice. A good solicitor in the UK will make 10 times as much as their chief justice.
However, a judicial appointment is seen as a prestigious post and there comes a time when one would want to retire from private practice, no matter how successful that practice may be.
I am absolutely certain that if we had to install a procedure under which one would have to go before a parliamentary committee or commission to be examined, the one or two who are prepared to serve as judges would not even consider this possibility. I don't think this is a viable system.
In Malta everyone knows everyone and everyone knows everything about everyone. So when you appoint a person you appoint him with your eyes open.
To be fair as well, I don't think anyone had objections to the two judges that are today facing criminal charges. Judge Patrick Vella was appointed five years ago and was appointed Magistrate in 1986.
Former Chief Justice Noel Arrigo was appointed judge 12 years ago. Nobody had raised any objection to them. Had there been objections, they would have been voiced.
The problem in Malta is finding the right people and I am saying this without any reflections on both Judge Vella and Judge Arrigo. The reality is that very good judge material is scarce.
The AG recently called for a more careful scrutiny of the business holdings of a candidate for the judiciary at the selection stage and if these are found to be too extensive, the candidate should be asked to dispose of them or not be appointed. Your opinion?
The simple fact that one has business interests should not preclude anyone from becoming a judge. One should be aware of the business interest of a potential judge. For instance, everyone was aware that Judge Arrigo had business interests when he was appointed a judge way back in 1990.
I believe that business interests should be taken into consideration but should not automatically exclude someone from becoming a judge. The whole matter of business interests has only become an issue now.
I also believe, however, that once appointed judge, then that person should no longer actively manage any business interests he or she might have.
Recently, I came across a copy of a resolution of NM Arrigo Ltd dated March 22 and filed at MFSC, which showed that Dr Arrigo not only had remained a shareholder but that the then designation of "chief justice" appeared under his signature. Personally, I find this unacceptable...
The way one signs is not that relevant. For example, recently I was a party to a contract about a family division. In the contract, I was put down as the honourable minister Dr Austin Gatt. The truth is that my title was an irrelevant detail in this contract.
Going back to Judge Arrigo, everyone was aware that he had business interests and what we are insisting on is that a judge should not be actively involved in a business and this is one of the amendments which is being discussed in parliament and upon which we are going to legislate.
The Courts and Tribunals Procedures Bill, which is in committee stage in parliament, would make it illegal for any judge or magistrate to exercise any other profession, business or trade or to hold any other office or position, even of a temporary or voluntary nature. Do you think this initiative should improve the quality of the members of the judiciary and have you discussed this issue with them?
I have discussed this issue - both formally and informally - with the previous chief justices and I know the opinion of various members of the bench.
Obviously opinions differ. My view is that whether we like it or not, people expect the members of the judiciary to lead a different lifestyle to ordinary people.
Members of the Bench, like ministers, are very much associated with the people they spend their time with and the organisations they are involved in.
I would not have an objection if members of the Bench are members of church or cultural societies. But when you have members of the Bench as committee members, if not presidents, of other organisations in which they carry out quasi-judicial duties, or have posts in organisations requiring them to go abroad very often, then I start raising objections.
I would prefer the matter to have been addressed through self-discipline and self-regulation. Unfortunately, this has not taken place and in this respect matters have got out of hand. And because they got out of hand, government had to step in.
I would very much have preferred things to be tackled through a quiet word between the judges themselves and through the application of self-discipline. That has failed and my view is that there are three to four members of the judiciary who have really failed their fellow judges and magistrates. We have reached the point when we have to legislate simply because of this.... because of the few.
Did you make an attempt to talk to these people?
A long time ago directly with some, indirectly with others. Unfortunately, the problem does not lie in areas where we can legislate but in other areas where it is impossible to legislate. Again, I am referring to lifestyle here. A magistrate or judge should not be in nightclubs at 3 a.m. and it is not on for some members of the judiciary to be in certain company.
Well before the case of the two judges, many people were already saying that some members of the judiciary are mingling too much with people and doing too much socialising. What is your opinion ?
I am very concerned about this situation, much more than the issue of holding posts/appointments in committees or organisations.
I am more concerned about the places a few members of the judiciary are frequenting and with whom they are being seen than the issue of them serving on committees or lecturing at university.
This is a big problem, one which started the landslide. Again, the problem is the lifestyle, something about which nobody can write down rules but is a question of common sense: knowing what is right and what is wrong. I have no doubt that these few members know what is right and wrong. Perhaps they have not realised the gravity of the situation being brought about by their lifestyle.
When speaking about the bill in parliament, you mentioned various examples involving activities by judges in sports and boards. You said that in the problematic world of today, temptations were greater and politicians and judges had to be more careful. I think your statement is more relevant today.
In today's day and age, problems coming before the court are not simple or straightforward. If you go back 30 to 40 years, the most common crime was over petty theft and the occasional murder.
Today, the judiciary has to deal with social cases, sexual harassment, bribery, fraud and many other cases. Forty years ago, mixing with a certain class of people was almost an assurance in itself that they were not mixing with people involved in criminality. Today you cannot make that assumption any longer. That is why it is extremely important for the present members of the judiciary to be more careful about where they go and with whom they mix.
Obviously you cannot know everyone's personal history or predict how the lives of people you know will evolve, and you cannot expect them to isolate themselves either. But you would know that if you are going to Paceville at 3 a.m. and keep on dancing till 5 a.m., then you are opening yourself up to certain problems.
My appeal is for people to realise that as a judge or a politician, one has a position of trust and your obligations are towards the public and that standards have to apply everywhere and all the time.
My view is a bit more radical on the judiciary. A politician faces a test every five years; if people believe that a politician's lifestyle is unsuitable to his role, they have the power not to elect him. Or he can be removed by the prime minister.
A judge is in a different position, so to a certain extent his obligations are greater. I have to stress that the vast majority of the members of the judiciary understand what common sense rule is, understand what a correct lifestyle is and know what they should do or what they should not do.
What I find very unfortunate is that this vast majority have not imposed their will on the minority who need to correct their lifestyle and who have given the judiciary a bad image in the eyes of the public.
Summer is almost over and the work at court will pick up very soon. What are your priorities for this year?
The figures we have today show that the reforms we introduced last year are successfully dealing with the backlog we had in the first hall of the civil court.
The number of cases keeps going down and latest figures, those for August, show that the backlog has decreased by another 500 cases. We now have 8,800 pending cases compared with over 12,000 three years ago.
The number of cases before the magistrates' court is down by another 300 to 1,800 when it was over 3,000 three years ago.
The reforms are working. I believe that big problems exist in the Court of Criminal Appeal and Court of Civil Appeal. There we have a backlog which has continued to rise.
Unfortunately, Chief Justice Said Pullicino retired in January and all pending cases had to be heard again. Following the resignation of Judge Arrigo, we now have to go through the process again, for the third time.
These matters mean that it will be very difficult to bring down this backlog. I am aware that Chief Justice Degaetano is working hard on this problem and I have confidence that he will manage to address it in the right manner. It is obviously a matter of trying to shift resources from the first hall of the civil court up to the court of appeal.
Will the government be appointing new judges in the near future?
We obviously have to substitute the two members of the judiciary who have resigned.
Any names?
The matter has not been discussed yet.
Labour justice spokesman Anglu Farrugia said recently there should be a parliamentary procedure or a special committee for the scrutiny of people shortlisted for such appointments. He suggested an overhaul of the system. What is your opinion on this?
I don't agree. The procedure we follow now has worked well for many years. Just because we had a very serious problem with two people does not mean we have to dismantle everything and start from scratch. I believe that what happened was a human failure, not a failure of the system.
Do you think the financial package offered to members of the judiciary is adequate ?
A chief justice today earns Lm20,000, plus a car and a driver, Lm1,000 in petrol and office allowances and all telecoms expenses paid.
A judge has the same perks plus a salary of Lm18,000 and a magistrate has a salary of Lm16,000. The whole question is at what age do you go into it. For a successful 40-year-old lawyer still raising children, this package might not be attractive enough, but the package is good enough for an older, successful lawyer.
Before the summer recess, you spoke in parliament against judges who also gave lectures at university and said that in the past they used to stop giving lectures when they were appointed to the Bench. Yet the government has just appointed a chief justice who is also a well-known lecturer. What do you think about the situation?
I still believe a judge should not give lectures on a full-time basis for various reasons, including ethical ones. Having said that, I am not against a judge being an occasional or visiting lecturer.
In fact, I had proposed to the judiciary to set up a scheme, controlled by the chief justice, under which members of the judiciary will be able to pass on their experience by giving a number of lectures, or acting as visiting lecturers.
In principle, we are against the idea of a judge having a permanent post of lecturer, as we have today in the case of two or three judges, who should be dedicating their full attention to the Bench.
Whether one likes it or not, if you are appointed to the Bench there is more than enough work to keep you busy all the time. We are going to legislate in this sense as well.
What do you mean?
The legislation will not allow any part-time work.
Should the government set up a task force or hold an inquiry to vet previous sensitive/controversial sentences?
I have already tried to establish certain facts. I have requested the administration of the courts to review all criminal appeals filed in the past 10 years.
The results show that between January 1992 and the end of July 2002, 146 judgments were delivered by the Court of Criminal Appeal and in only 17 cases was the judgment of the Criminal Court revised.
So the percentage is extremely low. It is very difficult to come to any sort of conclusion and in these cases the chief justice was either Giuseppe Mifsud Bonnici or Joseph Said Pullicino.... so the facts speak for themselves.
Legal experts say that the reduced jail sentence of Mario Camilleri, known as l-Imniehru, cannot be reviewed again. Is the government exploring the possibility of legislating to avoid this happening in the future?
The attorney general is already looking into the matter of how the law may be changed to make potentially tainted judgments revisable. However, there are some problems which need to be resolved before this can be done.
Your overall reflections on the difficult moments the country had to go through since the case of the two judges had been revealed... and how do you see the way forward?
It was a very grave situation which has left its mark on the whole country.
What is important is that we look forward, that we understand that the whole country has to work together to rebuild the confidence that has always existed in the judiciary.
We should make every attempt to look at the situation from a logical perspective rather than from an emotional point of view.
I stress that what happened was a human failure, not a system failure. Despite everything, we still have an excellent and strong judiciary.... a judiciary that can respond very positively to the situation.