The main problem with the Constitutional Reforms (Justice Sector) Act, 2016 is that is raises serious concerns on human rights infringements and aspects of bad governance. It also constitutes an unwarranted interference by the Executive in the independence of the judiciary viewed in the light of the rule of law, separation of powers and independence of the judiciary doctrines enshrined in the Constitution.

The 2016 justice reform constitutional provisions on judicial discipline are replete with problems on the right to a fair trial.

The Chief Justice should be totally detached from the filing of the charge against another member of the judiciary or his/her prosecution. He should not be asked by the Constitution to exercise all the diverse conflicting and antagonistic functions conferred upon him by the provisions introduced.

The committee handling a disciplinary offence involving judges and magistrates should not make an appraisal of guilt and then pass on to decide the case against the same member of the judiciary its members would have found prima facie to be in breach of judicial ethics or discipline.

Impartiality requires that there is no objective bias

The Commission for the Administration of Justice should not be involved in appointing the prosecutor. The prosecutor should neither be appointed by the Commission nor by the committee.

This provision is prone to be challenged on grounds that it does not afford the accused judge or magistrate a fair trial because the law does not strike a fair balance between the rights of the prosecution and those of the accused who is judged by his prosecutor and who is presumed guilty unless proven innocent.

If this is not a travesty of justice, then what is?

In Mitrinovski v. the Former Yugoslav Republic of Macedonia, the European Court of Human Rights declared that a person who had set in motion judicial disciplinary proceedings (as the Chief Justice, in our case) “has acted as ‘prosecutor’ in respect of the applicant” (the disciplined judge). In this case, the judge who initiated the judicial disciplinary proceedings subsequently took part in the decision to remove from office the accused judge.

In Gerovska Popcevska v. the Former Yugoslav Republic of Macedonia, the Court held that “the applicant had legitimate grounds for fearing that Judge D.I., the then president of the Supreme Court [in our case it would be the Chief Justice], was already personally convinced that she should be dismissed for professional misconduct before that issue came before the SJC” (the body responsible for the discipline of the judiciary).

In Jaksovski and Trifunovski v. the Former Yugoslav Republic of Macedonia and in Poposki and Duma v. the Former Yugoslav Republic of Macedonia the ECHR said that “the complainants… acted as ‘prosecutor’ in respect of the applicants, the ‘defendants’ in the impugned proceedings...

“After the proceedings had ended, the complainants were also parties to the decisions of the plenary of the SJC in respect of the applicants’ dismissals... In such circumstances, the Court considers that the system in which the complainants, as members of the SJC who had carried out the preliminary inquiries and sought the impugned proceedings, subsequently took part in the decisions to remove the applicants from office casts objective doubt on the impartiality of those members when deciding on the merits of the applicants’ cases...

“The Court, therefore, concludes that the confusion of roles of the complainants... prompted objectively justified doubts as to the impartiality of the SJC. The fact that in each case the complainant was only one of 15 members of the SJC cannot, in the circumstances, lead to any other conclusion...”

Impartiality requires that there is no objective bias and that a judge or magistrate who is subjected to judicial discipline or removal is afforded all the guarantees of a fair trial as any other accused person in a court of criminal jurisdiction is so afforded.

Yet, notwithstanding this clear string of judgments by the ECHR, the Maltese government went to Parliament with a Bill that falls perfectly within the Strasbourg prohibition opening up a can of worms and allowing the challenge of the August 2016 amendments on the basis of serious and grave human rights infringements.

The fact that the accused happens to be a judge or magistrate should in no way imply that the judiciary should be stripped naked of the right to a fair trial.

Like any other accused person, judges and magistrates should be afforded full protection to ensure that if they are found guilty of judicial misconduct, that guilt has been arrived at in the most objective, open and just manner. Should this not be the case, then nobody would entertain any qualms that the judge or magistrate in question ended up wrongly convicted, that his/her conviction was a miscarriage of justice and that his/her fundamental human rights were grossly breached simply because, in his/her case, the goalposts were moved to ensure an unjust conviction at all costs.

Our judges and magistrates deserve to be treated justly in conformity with full respect of fundamental human rights as the Constitution itself mandates in several of its provisions.

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

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.