The public dispute between two members of the judiciary and the Commission for the Administration of Justice has caused concern among the public for two reasons.

Firstly, because it has become public and, secondly, because the case has exposed serious shortcomings in the system of review of judicial behaviour.

The constitutional parameters of the matter need to be clarified first.

The Commission for the Administration of Justice is a body set up by the Constitution and is composed of the President of Malta, the Chief Justice , two judges elected by the judiciary, two magistrates elected by the magistrates, the president of the Chamber of Advocates, the Attorney General and two other members, one appointed by the Prime Minister and the other by the Leader of the Opposition. Half of the members are, therefore, members of the judiciary.

Only Parliament may decide to remove or otherwise a member of the judiciary following a trial by Parliament itself. The trial is to establish whether proven misbehaviour on the part of the member of the judiciary has occurred to the satisfaction of at least two thirds of the members of the House.

The most important function of the commission is to conduct a preliminary inquiry prior to a member of the judiciary appearing before Parliament.

If the result of the preliminary investigation shows enough evidence to justify a trial before Parliament, then the case is allowed to move on for trail. If the commission decides that no such evidence exists, on the face of it, then the parliamentary trial may not take place at all.

The case of Mr Justice Lino Farrugia Sacco and Magistrate Antonio Mizzi is not of this type.

The commission has a totally different and separate function when it acts as the watchdog of the judicial professional ethics. The yardstick in this case is the code of professional ethics drawn up by the commission itself.

The case of Mr Justice Farrugia Sacco and Magistrate Mizzi is of this type.

The commission in this situation has rather limited powers to "draw the attention of any judge or magistrate on any matter which may not be conducive to an efficient and proper functioning of such court".

The commission may also draw "the attention" on "failure to abide by any code or codes of ethics relating to him". This situation is contrasted to the strong powers the Constitution gives the commission in the case of the professional ethics of advocates and legal procurators.

The commission may warn, fine or even remove the warrant of a member of the legal profession permanently if it decides a breach of the code of ethics took place.

This is a far cry from simply " drawing the attention" of a judge or magistrate in a breach of their code of ethics.

The reason for this difference is that the members of the judiciary may only be disciplined for misbehaviour by Parliament in order to ensure that the independence of the judiciary be protected. Breaches of ethics by the judiciary do not end up before Parliament.

Therefore, after having their "attention drawn" by the commission, it then becomes entirely up to the members of the judiciary to decide how best to comply with the direction given to them by the commission. The serious problem however has arisen because the members in question, being in disagreement with the commission, seem to have decided not to comply at all with the commission's direction, thereby creating a very unfortunate impasse.

This is sad because there does not seem to be any means through which the impasse may be resolved at the institutional level.

The impasse, therefore seems final.

If this is the case, then the damage to our judicial system caused by this impasse is not to be underestimated, independently of the intrinsic merits of the case at issue.

If ethical issues are to be determined entirely by the members of the judiciary according to their personal conscience, then, having any external code of ethics would be worthless, if not harmful in its inefficacy.

If, on the other hand, ethical issues are to be determined by objective rules for all , the code should be revised by Parliament to contain only the most serious infringements which the commission would then be able to pass on to Parliament for trial.

Having the commission appearing weak before public opinion and, at the same time, leaving members of the judiciary wounded but defiant in the name of their independence is the nightmare scenario justice must do away with immediately, independently of the intrinsic merits of the case in question.

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