Through the generosity of a friend I have now been given a copy of ‘A Review of the Constitution of Malta at Fifty. Rectification or Redesign?’. There are quite a number of points raised which call for comment but I shall limit myself to what is written in the report in paragraphs 72 to 76, which deal with the Commission for the Administration of Justice.
As I have said elsewhere, it took me years to persuade my colleagues at the Chamber of Advocates to obtain a majority to approve my proposal and to send this to the government. The reaction by the government was to throw it right into the waste paper basket, as the late Eric Sammut, the secretary of the chamber, was duly informed by the Attorney General.
It was only after 1992, with the advent of Joseph Fenech, as Minister of Justice, that with the Cabinet’s approval the law for the establishment of the Commission for the Administration of Justice began to be considered by the House of Representatives. It is the only law proposed during my judgeship (1988-1995) on which I was consulted, and this no doubt in view of my past efforts to have a similar law promulgated.
The review considers that the President of the Republic should not chair the commission. In my original draft I had proposed that the commission (I had called it council) be presided over by the senior retired chief justice, but President Ċensu Tabone requested the government to have the President chair the commission on the lines of the Italian similar structure.
The government gave in to this request on the strength that having the President as chairman of the commission would add weight and prestige to it. The Opposition leader, during the debate on the law, pointed out the incongruousness arising from the fact of having the President of the Republic in the chair, but the government did not meet this objection.
In reality, what happened in practice, at least in the first year and three months of the working of the commission, was that I, then vice-chairman of the commission, avoided the possibility of this anomalous situation. In April 1994, when the first meeting of the commission was held, President Ugo Mifsud Bonnici as its first chairman, and I, its vice-chairman, agreed that the latter, rather than the President will, in future, preside over the commission in those cases where the matter called for the possible censure of the misconduct of any member of the judiciary – magistrates and judges. We considered that this would be in conformity with the law and was in line with what was the procedure in the similar Italian commission.
In fact, during those15 initial months, the commission was asked by the prime minister to inquire for possible dismissal in two cases, one involving a magistrate and another a judge. In both cases these inquires were carried out by the commission and in both I presided in my capacity of vice-chairman.
It took me years to persuade my colleagues in the Chamber of Advocates to obtain a majority to approve my proposal
I do not know whether this practice was followed by subsequent presidents and chief justices but, in any case, the procedure adopted in the initial stages of the working of the commission avoided completely the possible, but clearly anomalous, if not directly conflicting situation where the President would potentially have to take part in these three stages: advise on the appointment of a judge; carry out an enquiry on the alleged misbehaviour of a judge; and eventually authorise his dismissal from his judicial post.
The second item which I think calls for comment is what the review states in paragraph 75 with the blind agreement with what is contained in the risible suggestion of the commission for the reform of justice, especially where the judges are treated like recalcitrant schoolboys and subjected to the scrutiny of the registrars of the courts and others who are normally hierarchically below judges or magistrates.
I, for one, find it incredible that such a ludicrous proposition has been put forward in the same document which trumpets the independence of the judiciary.
The third point is the wrong indication in paragraph 76, where on the one hand it is stated that the Commission for the Administration of Justice should be a judicial commission (which it is) and not an executive commission (which it is not), while on the other hand it is also stated that it should impose disciplinary measures on the members of the judiciary which would, in fact, render it an executive commission.
Presumably, this executive power of the commission, in one of its three superfluous proposed guises, will include what the report on the justice reform, in measure 43, puts forward, namely the laughable proposition that judges be fined up to €1,000 (demotion comes later).
The review purports to deal with judicial accountability but does not add one single suggestion of its own. Instead, it refers to completely inadequate suggestions in this regard on this important, delicate and difficult question on the accountability of the judiciary contained in the report.
Prof. Giuseppe Mifsud Bonnici is Chief Justice Emeritus.