The Constitutional Reforms (Justice Sector) Act, 2016, raise serious issues of violations of the right to a fair trial as enshrined in the European Convention on Human Rights and Fundamental Freedoms (the convention) and as espoused by the European Court of Human Rights (the Strasbourg Court) in its decisions.
This is further complicated by the fact that an accused judge or magistrate – notwithstanding that his human right to a fair trial will be breached – does not appear to enjoy an effective remedy before the Maltese courts to redress human rights grievances.
The provisions of the Constitution cannot be challenged under the European Convention Act in the light of the supremacy provision of the Constitution, notwithstanding the provisions of Article 1 of the Convention, that is, the obligation of Council of Europe member states to respect human rights.
To compound matters (Paul Stoner apart), it is not that clear whether at this late stage the 2016 amendments can be challenged under the Chapter IV human rights provisions of the Constitution as the 2016 amendments have been introduced in the Constitution itself and are now part and parcel of it.
To exhaust domestic remedies in terms of article 35 of the convention, any person claiming that the 2016 law is in breach of his human rights must go through the national courts, and, if unsuccessful, then move on to Strasbourg. Alternatively, if such person prefers a shorter route bypassing Maltese courts, he may request a member state of the Council of Europe to take the case against Malta before the court through the inter-state procedure set out in article 33 of the convention.
If and when the EU comes around to accede to the convention such task could devolve upon the European Commission. Yet even if the Strasbourg Court were to eventually pronounce against Malta, there is no guarantee that the required two-thirds majority in the House of Representatives would be mustered to have the Constitution changed and brought in line with the right to a fair trial.
The Constitution, thanks to the 2016 amendments, now establishes a twofold mechanism whereby an accused judge or magistrate can be found prima facie guilty of misbehaviour. In terms of the 1994 amendments to the Constitution (which established the Commission for the Administration for Justice), and theCommission for the Administration of Justice Act, it is the commission which makes such prima facie evaluation of judicial misbehaviour.
With the 2016 amendments, the Committee for Judges and Magistrates has also been tasked with making, concurrent with the commission, such prima facie evaluation.
Moreover, the 2016 amendments do not address the difficulties which are ingrained in the 1994 amendments, that is, that the body established by those amendments to arrive at a prima facie appraisal of guilt - the Commission for the Administration of Justice - like the High Council of Justice in the Strasbourg’s Court Volkov v. Ukraine decision - does not enjoy independence and impartiality.
One of the members of the Ukrainian High Council of Justice was at the time the prosecutor. The Attorney General, who carries out constitutional duties of prosecutor in Malta, also sits on the Commission for the Administration of Justice and the 2016 constitutional amendments have not taken stock of the Volkov judgment.
To add insult to injury in total disregard to the Strasbourg Court case law, with the 2016 constitutional amendments, the Maltese prosecutor (the Attorney General) now also sits on the Judicial Appointments Committee.
In Volkov, the Strasbourg Court held that “the presence of the prosecutor general on a body concerned with the appointment, disciplining and removal of judges created a risk that judges would not act impartially in such cases or that the prosecutor general would not act impartially towards judges of whose decisions he disapproved”.
The amendments should simply, as a matter of urgency, be relegated to the dustbin of constitutional history
The issue which arises is that if the Strasbourg Court finds, as it did in Volkov, that the Judicial Appointments Committee is tainted with human rights violations, does it mean that all appointments made following a recommendation by the Judicial Appointments Committee are null and void and that all decisions taken by the member of the judiciary appointed in this way are also null and void? What will happen on the day when such a pronouncement will be made?
Article 65(1) of the Constitution mandates Parliament to enact law which is “in conformity will full respect for human rights”. Clearly, the Constitutional Reforms (Justice Sector) Act, 2016 is vehemently in breach of this direction when it regulates judicial appointment, discipline and removal (but not judicial pensions).
While the judiciary are mandated by the Constitution and the European Convention Act to dispense justice to litigants and accused persons appearing before them, the Constitution does not establish a corresponding obligation towards the judiciary when it is they who are accused before the Committee for Judges and Magistrates - the right to a fair trial here is allowed to be trampled upon with impunity.
The same applies where the Chief Justice, as complainant, charge drafter and prosecutor is allowed to sit in judgment from the appeal lodged by the accused judge or magistrate where the Chief Justice acts as complainant, charge formulator and prosecutor.
The Constitution is adopting different weights and different measures when it comes to the dispensation of justice: a human rights friendly approach to non-members of the judiciary and a human rights infringement approach to members of the judiciary.
The inevitable conclusion arrived at in this series of six articles on the infamous Constitutional Reforms (Justice Sector) Act, 2016 is that it has no redeeming features in this enactment (apart from the part on judicial pensions).
Better explaining procedures and increasing sanctions for judicial behaviour pales into obsolescence when compared to the serious and grave breaches of the right to a fair trial: these amendments strikes at the very heart of a democratic society founded on the respect for human rights. The amendments are a constitutional mess which a democratic republic that respects the rule of law, the independence of the judiciary and the separation of powers should scuttle without any unrepentant remorse.
It is surely not a case of progress being registered or a forward-looking law which encapsulates these majestic principles of a democratic society and respect for human rights, good governance and transparency in government.
On the contrary, the amendments serve to vilify these laudable constitutional principles, bring the Constitution itself into disrepute and self-contradiction, and are in conflict with other provisions of the Constitution prioritising respect for human rights and run counter to the Convention and decisions of the Strasbourg Court.
The amendments should simply, as a matter of urgency, be relegated to the dustbin of constitutional history and repealed forthwith. Indeed, life was better when we were worse, that is before the enactment of the Constitutional Reforms (Justice Sector) Act, 2016. At least prior to these amendments the right to a fair trial was dishonoured only in relation to removal from judicial office. Now, to aggravate matters, the right to a fair trial is also dishonoured in relation to judicial appointment and discipline.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.