Judging the judges: a problem of teeth

In his first speech, Chief Justice Silvio Camilleri called for a review of the constitutional body set up 16 years ago to oversee court workings and the behaviour of the judiciary.

Set up in 1994, the Commission for the Administration of Justice was intended to serve as a watchdog on the judiciary – an additional safeguard in the system of checks and balances that characterise every democracy.

It tried to exert its authority some years ago when it rebuked two members of the judiciary and asked them to resign from senior posts in sport organisations, since they breached the code of ethics.

However, until today the two have ignored the commission’s instruc­tion, openly defying the commission and showing up its lack of teeth in the process.

Chief Justice Silvio Camilleri may have alluded to this case when he said during his first speech to mark the opening of the forensic year that it was necessary for the comm­ission’s direction to be observed “even if one does not agree with it”.

“Just as members of the judiciary, who are a constitutional authority, have every right to expect that their decisions are followed and respected so should the comm­ission’s directions be followed,” the Chief Justice said.

He subsequently suggested that the time may have come for an evaluation of the commission to make it more transparent and effective.

However, Chief Justice Camilleri hit a nerve when he said that people “expected a lot from the Comm­ission”, according to lawyer Georg Sapiano.

“Surrounded by some of the very people he was strongly criticising, his words were clearly those of an outsider looking in, somebody who was not owned by the system,” Dr Sapiano said, adding the speech was bold and surprising.

“Many share his evident dismay at the cases which he alluded to without mentioning specifically: A magistrate and a judge acting in defiance of an instruction given by the commission, and a magistrate who has been accused of giving false oath and publicly criticised for inappropriate conduct in her personal life,” he said.

The Chief Justice did not delve into specific proposals as to how the Commission should be reformed, but according to Andrew Borg Cardona – who was lightheartedly told by the Chief Justice during Friday’s session that he need not have gone to pains to explain why he was dedicating part of his speech to his late former colleague Guido de Marco – the issue of judicial accountability underpinned the inaugural discourse.

“After 16 years many would agree with the Chief Justice that the time has come for a review to be undertaken. Judicial accountability is one of the issues and the how and what type of sanctions had to be applied should be part of the debate,” Dr Borg Cardona said, pointing out that any changes had to be undertaken by Parliament.

Another issue that warrants deeper analysis is whether the President should continue to chair the Commission, he added, to avoid awkward situations that would shatter the President’s aura of being supra partes.

Dr Borg Cardona said the Commission could be chaired by the Chief Justice, although he did not agree with suggestions that have often been made to include members of the public.

Not all lawyers, though, agree with a wide-ranging review of the commission. Former Labour Justice Minister Joe Brincat does not believe the terms of reference of the commission should be fundamentally changed.

Aware of the Chief Justice’s emphasis on the behaviour of the judiciary in their private and public lives, Dr Brincat said he was against a commission with a remit to delve into the private lives of the judiciary unless the person committed a crime or was fraternising with criminals.

“It would be unjust if the commission were to censure a magistrate or a judge because he is separated from his wife and living with another partner. Admittedly, there are rules of prudence that have to be followed but even when these are breached, the commission should only have the remit to draw somebody’s attention to the complaints,” Dr Brincat said.

He insisted there are serious issues of organisation that have to be resolved before talking about judicial accountability.

“The courts need a reorganisation of space and time. There are too many sittings concentrated in two or three days and this can create confusion.

“It is also unacceptable for somebody who is summoned as a witness to be left waiting for hours in the corridors. We also need to have a specific law that defines contempt of court because as things stand today its application is very arbitrary,” Dr Brincat pointed out.

Dr Sapiano also said it was impossible to comment on prop­osals until they see the light of day.

“The commission is effectively toothless. To truly change that, we would have to shift the power to impeach from Parliament to the commission. I don’t think we should do that,” he said.

The question of who should judge the judges posits a conundrum that is not easily resolved. Chief Justice Camilleri attempted to stir the waters and start a debate. Whether he will be successful in bringing about change, is another matter altogether.

Commission for the Administration of Justice

The Commission is composed of 10 members: the President of Malta, as chairman; the Chief Justice, as deputy chairman; the Attorney General; two members elected from among the judges of the Superior Courts; two members elected from among the magistrates of the Inferior Courts; one member appointed by the Prime Minister and one member appointed by the Leader of the Opposition; and the President of the Chamber of Advocates.

Since the chairman has only a casting vote, this means the members of the judiciary on the commission always have a majority of votes. This is considered as essential to ensure autonomy from the executive and the legislature and to safeguard the independence of the judiciary.
Source: Official website of the judiciary – judiciarymalta.gov.mt