Editorial

It is imperative, both for the sake of the rule of law - a crucial element in a healthy democracy - and in the best interest of society, that the courts never lose any of their authority and respect. These two elements must be safeguarded at all costs by the state and society but, more importantly perhaps, by the judges and magistrates themselves.

Power can be granted to them by means of legislation but respect has to be won and continuously preserved. A judge or magistrate wins respect on the basis of his/her behaviour and performance. It may take some time to do that but it only needs one instance of wrong body language or a misplaced comment to lose such well-deserved respect.

"In terms of public confidence," Sir Igor Judge, president of the Queen's Bench Division of England and Wales, told a Malta seminar at the beginning of this year, "...perception is a critical factor..." And the prominent top judge, whose mother is Maltese, was quick to repeat a famous quote: "The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven but on earth he is no use at all".

So, while the judicial assistant and legal secretary at the Office of the Chief Justice has every right to write to The Times about a heading given to a court report, it would be advisable for her office to be more circumspect when dealing with how court action and/or judgments are perceived by the public, and that, of course, includes the press.

The Office of the Chief Justice took exception to the heading Constitutional Court Raps Lower Court. "It is not the function of appellate courts to rap lower courts, whether in the sense of reprimanding them or of inflicting some kind of censure or punishment," the legal secretary wrote in her letter.

As The Times indicated in a note attached to the letter published last Friday, the word "rap" was solely intended to convey the sense of criticism implied in the wording of the Constitutional Court's judgment.

Now, admittedly, rap may have a number of meanings, but it also means to criticise sharply. What's wrong in saying that a superior court sharply criticised another court? To go one step further: Why shouldn't a senior judge chastise, criticise or rap an erring judge or magistrate? Society would want that. Indeed, it would expect it.

Apart from the fact that justice must not only be done but also appear to be done - and judges calling a spade a spade, even when reviewing each others' performance, can only reinforce that axiom - there is the need for society to be constantly re-assured that justice is being done "according to the law, not according to the individual whim, or wish, or hope, or aspiration of every one of the individual judges who sit on the Bench," to borrow from what Sir Igor said in his lecture. "The exercise of judicial discretion does not permit the judge to do what he likes," he insisted.

By no means should the above be interpreted as a general condemnation of the behaviour and performance of judges and magistrates. That is definitely not the case for they carry out an unenviable public function in a way that earns them international admiration. The point being made here is simply that no judge or magistrate should be over-sensitive; after all they themselves at times use very harsh words with regard to others, so why not also to their peers?