A special prosecutor should be tasked with taking action against judges and magistrates in front of a disciplinary authority in cases of misconduct, a judicial reform body has recommended.

In this way the body that will mete out disciplinary measures will not act as judge and prosecutor at the same time, as the situation stands at present.

Appointed by the President of the Republic, the special pro­secutor would be a former judge, magistrate or attorney general and would enjoy autonomy.

Any complaints on the judiciary received by the Commission for the Administration of Justice would not be discussed by it but redirected to the special prosecutor.

The proposal is one of 450 recommendations contained in a report by the judicial reform commission, tasked by the government with drawing up a blueprint for change in the justice system.

A detailed final report was yesterday handed over to Justice Parliamentary Secretary Owen Bonnici.

Headed by former European Court of Human Rights judge Giovanni Bonello, the commission took just eight months to produce two draft reports and carry out a public consultation exercise before concluding its work.

One of the more salient and controversial changes proposed by the commission relates to disciplinary proceedings against members of the judiciary.

Three-member discipline panel

The commission is recommending the setting up of a three-member authority for discipline composed of a sitting judge and magistrate elected by their peers and a member representing the people chosen by the President.

Minor infractions would be punished by a warning or a fine not exceeding €1,000, deducted from the judge’s salary. For the more serious cases, the disciplinary authority could even recommend removal from the Bench through impeachment proceedings in Parliament. The authority would hold a register of all punishments meted out.

Minor infractions would be punished by a warning or fine not exceeding €1,000, deducted from the judge’s salary

Both the special prosecutor and the accused would be able to appeal the authority’s disciplinary decision before the Commission for the Administration of Justice.

The Bonello Commission is also proposing the suspension of judges and magistrates from work pending the outcome of a case against them involving dereliction of duty or if they are charged in court with voluntarily committing a crime.

In another contentious proposal, the reform commission is recommending altering the balance of power in the Commission for the Administration of Justice by ensuring sitting members of the judiciary do not hold a majority.

The report recommends a seven-member commission, down from the current nine-member set up, composed of the chief justice as chairman, a judge and magistrate elected by peers, a retired judge chosen by the President, the prosecutor general, a retired veteran lawyer and a representative of the people.

It does away with the appointment of a member each by the Prime Minister and the Opposition leader.

The Bonello Commission is also proposing a radical shake-up in the way members of the judiciary are appointed, diluting the justice minister’s sole discretion as at present. Even though the final decision would rest with the government, a six-member autonomous authority would carry out a selection process to choose and advise on suitable candidates for the Bench.

Speaking after handing over the report to the parliamentary secretary, in poetic terms Dr Bonello hoped that the “450 seeds will flourish and grow into fully-fledged trees”.

Dr Bonello said some of the proposed reforms were difficult to achieve while others were easy to bring about.

Those who had an open mind for reform should find no reason to resist these changes, he said, but acknowledged there were some professions that had “a tendency to resist change”.

He then turned to Dr Bonnici: “Our curtain goes down and the ball is now in your court but we will be ready to help you at any stage if you wish.”

Dr Bonnici said the government would move ahead quickly on the proposals, about which there was consensus.

However, he conceded that in the more sensitive areas, such as the disciplinary mechanism for the judiciary, the government would tread carefully and consult all parties.

The recommendations will be discussed with the Opposition, he insisted, since it was important consensus was reached.

Some of the proposals, such as changing the composition of the Commission for the Administration of Justice, need a two-thirds parliamentary majority because they impinge on the Constitution.

Asked whether he expected resistance from the judiciary, Dr Bonnici said he had regular meetings with the Bench and found it to be cooperative. “I believe members of the judiciary have the goodwill to bring about change.”

ksansone@timesofmalta.com

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