Editorial

An unlikely situation has arisen which must not be ignored. It is one that involves the judiciary and the manner in which justice is carried out in a small state such as Malta.

It has to do with the question of when members of the judiciary are required to abstain from hearing cases. The first signs of this situation - not to call it a crisis - arose following the decision of the European Court of Human Rights which held that a judge, albeit a Chief Justice, was bound to abstain in a case - a few years back - involving the state because his brother occupied the post of minister and the judge's nephew was defence counsel. The human rights court held that this situation infringed the fundamental human right of fair hearing, even if the presiding judge had no bad motives whatsoever.

The judgment was soon followed by the unprecedented decision by a magistrate not to hear a case involving a different Chief Justice, the present one.

The abstention was remarkable in that the magistrate openly declared that a bitter dispute involving him and the Chief Justice rendered the magistrate incapable of being fair even if the Chief Justice was involved in the proceedings as a victim. A third decision to abstain was made by a judge sitting in a Constitutional Court. He was asked to decide if another judge was correct in refusing to abstain after she was challenged on grounds that one of the parties was in the same year of the law course as the judge was.

The judge found out that he was in precisely the same position of having been in the same course as the first judge and the party in question. So he ruled that he could not continue to hear the case because doing so could be seen as pre-judging the issue before him. This was a rather tricky case because the ordinary man in the street could have concluded that the stand taken by the second judge could indicate that the first judge should have abstained too!

A fourth situation involved a press release issued by the Registrar of Courts explaining that a statement made by another judge was not to be understood as referring to circumstances he personally found himself in.

The press understood the court to be referring to these circumstances because they were already public and coincidentally similar.

The combined effect of these four cases reflects a difficult situation in administering justice in Malta because it is doubtful whether these situations would arise in bigger countries with the same frequency.

Random connections will always arise in a small community if one scratches enough below the surface. Should not the connection be of a relevant enough nature to put a reasonable doubt on the quality of the justice meted by the courts?

It is said that justice has to be blind. Must it also be affected by random connections and circumstances, closer to the throw of a dice?

Perhaps it is time for the rules to be rethought in order to provide guidance on the questions raised by the abstention of judges and magistrates taking place within the past few weeks, not to mention the decision of the European Court of Human Rights.

The country is in the throes of a general election and such issues may seem peripheral to what is attracting public attention. Nor is it healthy that such a delicate matter be discussed in the heat of the political battle.

However, there exists an urgent need to bring back serenity in the administration of justice. The people need to constantly have their mind at rest that their utmost means of protection against any sort of abuse is constantly running in top form.

As one brilliant Maltese judge once said: Justice must not only be done but seen to be done. However, first it must be done.