The 1964 Constitution had only one form of judicial discipline prior to the August 5, 2016 amendments – removal from office. No other form of punishment was established for minor offences of a disciplinary nature. This made the Constitution unworkable as it was not possible to suspend members of the judiciary, transfer them to an inferior court, fine them, reprimand them or impose such other sanction of a minor nature short of removal from office.

The Constitutional Reforms (Justice Sector) Act, 2016 has added a new provision to the Constitution – article 101B – which deals with judicial discipline. It establishes a Committee for Judges and Magistrates, composed of three members of the judiciary, who are entrusted with judicial discipline.

The function of the Committee is set out as follows: “The Committee shall exercise discipline on judges and magistrates in the manner prescribed in this article.”

A right of appeal exists from a decision of the Committee to the Commission for the Administration of Justice. Although the Commission is ordinarily presided by the President of Malta, the latter is by express provision of law debarred from presiding when the Commission is hearing appeals from the Committee.

In this case, it would be the deputy chairman of the Commission – the Chief Justice – who presides. The new provision outlines the procedure to be followed by the Committee when determining judicial discipline, the power to suspend a judge or magistrate while still in office and the punishments which can be inflicted for judicial misbehaviour.

Disciplinary proceedings against a judge or magistrate may commence upon a complaint either by the Chief Justice or the minister responsible for justice. Members of the public or other persons and bodies are debarred from lodging such a complaint.

The Chief Justice, qua complainant, has several procedural rights bestowed upon him which can be exercised throughout the iter of judicial disciplinary proceedings. He draws up the complaint “in writing”, which will “contain definite charges for breach of the provisions of the code of ethics for members of the judiciary or of a code or disciplinary rules for members of the judiciary promulgated according to the same procedure according to which the said code of ethics is promulgated”. The complainant is enjoined to include the grounds upon which such charge is based.

First, the charge may be prepared by the Chief Justice (CJ). Paradoxically, the latter, in his role of deputy chairman of the Commission, partakes in the promulgation of the code of ethics or a code or disciplinary rules binding the judiciary before the Committee.

Should the complainant CJ win the case against the accused and the latter appeals before the Commission, it is none other but the complainant CJ and disciplinary code or rule maker who presides the Commission.

Not only is the CJ the prime mover and accuser of the accused, but he is also one of the framers of the disciplinary offence/s upon which the accused may be charged. To add insult to injury, on appeal, he is to judge the accused upon that very same charge which the CJ as prime mover and complainant has levelled against the accused.

The constitutional amendment has taken us to the dark ages where no right to a fair trial existed

He therefore exercises different conflicting roles which are not conducive to the granting of a fair hearing to the accused. There is therefore a twofold type of justice in Malta: that administered to ordinary persons and that administered to the judiciary. While the former are entitled to a fair hearing, the latter are not. Instead, the Constitution guarantees the accused judge or magistrate a right to an unfair trial.

Government might argue that the CJ can be challenged when he presides the Commission. This means that in all those cases where he has framed the charge he must be challenged de rigueur as a matter of course. But what if the CJ sees no reason why he should abstain and hears and decides the case against the accused?

There is no provision in the Constitution, as in the case of the President of Malta, which obliges him to abstain in those cases where he would have or been involved in the framing of the charge or, worse still, in prosecuting the accused before the Committee.

But who is going to decide whether the CJ should abstain? Will he be doing so? The right to a fair trial is prejudiced by the conflicting and antagonistic roles afforded by these amendments to the CJ.

Second, when the Committee decides that “there are sufficient grounds to continue the disciplinary proceedings the Committee shall appoint a date for the hearing” and the Committee, after hearing all evidence adduced, decides the charge.

This means that the accused will not be afforded a fair hearing as the same Committee members who are called upon to judge the accused would have already made a prima facie appraisal of guilt. The accused has all of a sudden lost his presumption of innocence and the burden of proof has been shifted upon him to prove innocence.

The evidentiary rule is guilty unless proven innocent. Having found a prima facie case of guilt, the Committee has to be convinced by the accused that he is innocent. The constitutional amendment has taken us to the dark ages where no right to a fair trial existed.

Third, “the Commission... may also appoint an advocate to act as a special independent prosecutor in the disciplinary proceedings”. Why should the prosecutor be appointed by and answerable to the Commission and not by and to the Prime Minister or by some other body or person totally unrelated to judicial discipline?

Will the fact that the prosecutor is appointed by the Commission imply that when deciding an appeal it will favour its own appointee to the detriment of the accused? Will this not engender in the public’s mind a perception of bias against the accused? Does it mean that the prosecutor is acting in that office on behalf of the Commission or, worse still, is its delegate?

Does not this provision place the special independent prosecutor in an advantageous position, more so that he is answerable to the Commission for the duties entrusted to him and that his conditions of employment are established by the Commission?

Will he share office with that of the Commission, be paid directly by it and share its resources, including staff? Will not this appointment be tainted by objective bias?

Fourth, when the Commission does not exercise its constitutional right to appoint a prosecutor, who will prosecute? Will it be the CJ who is now complainant, prosecutor, law giver and, at appeal stage, judge who will adjudicate the accused?

Fifth, if the Committee considers the disciplinary breach such as to merit removal from judicial office, the Commission presided by the CJ, can decide to suspend the accused and refer the matter to the Speaker.

As the new provision on judicial discipline is riddled with human rights violations, it is doubted how much they can survive the test of time when challenged. Only time will tell.

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.