Self-discipline is the only discipline...

Anthony Borg Barthet was recently re-appointed judge at the European Court of Justice. The former attorney general shares his thoughts on the justice system in Malta with Kurt Sansone.

There is no common ground between the founder of communist theory, German sociologist Karl Marx, French emperor Napoleon Bonaparte and former Attorney General Anthony Borg Barthet.

I’m sorry but the administration of justice is expensive and people cannot simply have a field day

Except May 5, that is. While Marx was born on the day, Napoleon died on it and Dr Borg Barthet got married in 1974, the same year he started practising as a lawyer.

It is also the day Dr Borg Barthet was accepted to join the judicial ranks at the European Court of Justice in 2004 after 15 years at the AG’s office in Valletta.

“Being AG is a tough job. I worked six days a week for 15 years. I was 57 and approaching pensionable age. Malta had just joined the EU and the government had to nominate somebody for the European Court of Justice in Luxembourg,” he reminisces about that day eight years ago when his nomination was accepted.

It coincided with his wedding anniversary and so remained a date imprinted in his head. He smiles as he sits in an armchair in the living room of his Attard house.

Last month, Dr Borg Barthet was appointed for another six-year term that runs until 2018. His first term in 2004 lasted for two years, after which he was appointed for a six-year stint.

It was a slow start as the president of the ECJ gave the judges from the 10 new member states that joined in 2004 a small caseload. “It helped us settle in and appoint our staff.”

Dr Borg Barthet is in Malta for the summer. The ECJ holidays coincide with those of schools, in what is a very convenient arrangement for employees with children.

He explains that judges at the ECJ come from academic circles, the judiciary and state functionaries. But they also have to know how to speak and write French.

Dr Borg Barthet had experience as a functionary of the state in his role as AG. However, he was also involved in the lengthy EU membership negotiations. And being francophone worked to his advantage.

The same cannot be said of Judge Joseph Filletti, whose nomination earlier this year was turned down by the ECJ consultative panel that appoints judges.

The government put forward Judge Filletti’s name to replace Judge Ena Cremona, who wanted to retire before her time was up.

“Judge Filletti was not deemed to be strong enough on European law. His strength was human rights. But the time may have come to analyse whether the review procedure should change,” Dr Borg Barthet says when asked about the outcome of the Filletti case.

The job at the ECJ also comes with a lucrative financial package that any judge serving in the Maltese courts would envy.

“If you want a good justice system you have to pay for it,” he says.

Occupying the post of AG for 15 years was a monetary sacrifice compared with the money made through private practice, he adds.

According to the budgetary estimates for this year the AG is on scale one of the civil service pay grade, earning just over €38,000.

“At 57, I was going to retire very soon with a meagre pension and at some point I was considering whether to enter private practice to be able to maintain my lifestyle,” Dr Borg Barthet recalls.

When the opportunity came he took it and maintaining the same lifestyle is no longer an issue.

But Dr Borg Barthet uses the argument to highlight the plight of the judiciary in Malta. It is not just a question of salary, he adds, but of providing judges and magistrates with the necessary support staff to be able to undertake research.

Dr Borg Barthet has at least four lawyers in his cabinet at the ECJ. The perfect judgment does not exist, he says, but internal dialogue helps bring about “a good judgment”.

However, he disagrees with the judiciary’s unofficial boycott of national day celebrations to protest about their work conditions, including wages and pensions.

“On national days, judges should be honouring themselves,” he says.

The flip side of the argument for improving the judiciary’s pay package and working conditions is more discipline and accountability. By the very nature of their status as the third pillar of democracy, judges and magistrates are not answerable to the executive or legislative branches for their actions. It helps secure the balance of power but it also raises question marks over who should enforce discipline when the judiciary err.

The Commission for the Administration of Justice, a constitutional body, can reprimand the judiciary but its rulings can be ignored. It is a body without teeth and no means to enforce its decisions.

Judges and magistrates can continue to function unhindered even if they fall foul of ethical standards expected of them.

At the most extreme level the Commission for the Administration of Justice can recommend the impeachment of a judge or magistrate to parliament. But this is not a decision taken lightly and has rarely been used.

There is no middle way between doing nothing and kicking out a member of the judiciary.

The situation bears a resemblance to the workings of the ECJ, where trust and respect between peers is of paramount importance.

“At the ECJ the only discipline is self-discipline, and a unanimous vote of peers to kick you out. It is peer pressure that keeps you in check,” he says, adding that some countries also give the chief justice the power to wield discipline.

Another hot topic that has been a constant thorn in the side of the Maltese justice system is court delays. Cases drag on for years in a never-ending saga of postponements.

Dr Borg Barthet smiles and his eyes almost give away the silent sigh of relief. He has left this reality behind for a more straightforward system at the ECJ.

A case before the ECJ is not normally given more than one sitting, he points out. “This happens after all concerned have had the opportunity to present their normally well-studied and prepared, written pleadings.”

Dr Borg Barthet explains that once the hearing is over the advocate general submits his opinion and the case goes for deliberation on the basis of a draft prepared by the reporting judge.

“A final decision is normally reached in one or two deliberations by the sitting judges. Cases are not postponed,” he says, adding that in theory the Maltese system should work in the same way.

“However, there have been a number of rulings by different judges in Malta allowing people to have their day in court. It is all right for people to have the time they need but not more. I’m sorry but the administration of justice is expensive and people cannot simply have a field day.”

He also puts the onus on lawyers, saying they should study cases before filing citations in court. This will help them make good, strong and clear submissions on day one of the case.

A lawyer cannot have 10 cases running at one go, he insists, saying it is no longer feasible for lawyers not to work in partnerships. “It is humanely impossible to concentrate on each and every case.”

A closely linked issue is the appointment system meted out by magistrates and judges for cases to be heard. Each courtroom has its own diary, which risks leading to clashes between cases, putting lawyers in awkward positions. This can be solved if a common diary is available for all to consult. The matter is now being considered under a package of reforms piloted by Justice Minister Chris Said.

Dr Borg Barthet insists that court reforms have happened “every 30 odd years or so” but the problem has always been traditional practice that keeps reverting to antiquated systems. “Good case management is possible and it works abroad.”

He also argues for more internal meetings between judges and magistrates to discuss points of law and principle that help improve the quality of judgments delivered.

“At the ECJ it is always a team of judges that delivers a judgment. Discussion helps clarify matters and brings different points of view to the table,” he says.

Judges with an academic background provide a different point of view to judges, like Dr Borg Barthet, who have a state functionary background.

“In this way a decision is measured and takes into consideration the wider impact on society and the member states. Hopefully, it helps us deliver good judgments,” he says.

But his words come with two cautionary notes: No two cases are alike and court cases should not be run by the press.

He displays the same wariness all members of the judiciary have towards the press, which he says “should have a mission to learn and teach”.

“The press must not seek sensation but endeavour to understand the merits of a case before writing about it,” he says.

And he has no qualms when asked whether criminal libel, by which journalists can potentially face jail terms if found guilty, should stay or go.

“Criminal libel must not finish. While anybody in a public role is liable to criticism, mud-slinging with no proof is libellous and nobody should do it. Pain is a natural consequence that something is wrong.”

The former AG refutes the argument put forward by some that the chief prosecutor has too much discretionary power when deciding on how to prosecute.

The AG’s decision may very well determine whether a case ends up before a magistrate or a judge, carrying different punishments for the accused.

Dr Borg Barthet says that an individual has to have 12 years experience to be able to fill the post of AG while the requirements for a magistrate are seven years. He insists that according to the constitution the AG has a judicial function and is independent from the executive.

The AG must never please politicians or the press

“If you recognise this why should magistrates have discretionary powers and the AG no?”

It is a pertinent question but it does not address the blurred line that exists between the AG acting as chief prosecutor and the same officer acting as government’s legal counsel.

The two seemingly conflicting roles challenge the claim that the AG functions independently of the government.

“When the AG gives legal advice it must be objective. But the AG must never please politicians or the press. Whenever I took some important decision I informed the minister or the Prime Minister but never sought their permission,” he says.

Every morning when you are looking at the mirror to shave, that is the man you have to please. That is the man who has to be satisfied that you have done your best according to what your conscience dictates. It is the same at the ECJ where pressure mounts from the Commission and member states.

He lurches forward in the armchair. His eyes are wide open and in a serious and calm tone he explains the maxim that has guided him throughout his career.

“Every morning when you are looking at the mirror to shave, that is the man you have to please. That is the man who has to be satisfied that you have done your best according to what your conscience dictates. It is the same at the ECJ where pressure mounts from the Commission and member states.”

A 15-year career as the country’s chief prosecutor comes with its ups and downs but when I ask Dr Borg Barthet for one memorable decision it is the first time in the interview that he pauses at length.

Looking at the empty space in front of him as if rewinding the reel of life, he says that every decision he took to stop criminal proceedings against individuals – known in legal jargon as nolle prosequi – was “a suffered” choice.

There were 11 instances when he decided to bury criminal proceedings, at times even after a magistrate, during the compilation of evidence, would have found enough proof for the accused to be tried.

The last and possibly most controversial was taken just before he was appointed ECJ judge in the case of a hospital consultant, who was charged with involuntary homicide of a seven-year-old boy. In these cases the AG’s decision is final and cannot be appealed.

At the time, when confronted by the press, Dr Borg Barthet said the scientific conclusions he had in front of him did not point towards negligence of the doctor involved.

He recalls the controversy but stops short of discussing the individual cases and insists that the easy way out would have been for him to give the accused the full run of justice.

“Unless there is enough proof to lead to guilt it would be unfair on the accused. But it could also be unfair on the victim because if the accused is acquitted and the proof comes to light later on, he cannot be tried twice for the same crime. Justice will not be served.”

Dr Borg Barthet does not regret any of the decisions he took. The heaviest burden, he says, is the one caused by a decision that was purposely wrong.

“You can kill your conscience and continue living normally or else live with remorse for the rest of your life. I have no qualms of conscience on any case,” he says.