The May 30, 2013, Bonello Commission report proposed the establishment of an independent Judicial Services Disciplinary Authority composed of a judge elected by and from judges, a magistrate elected by and from magistrates, and a lay person appointed by the President on her own deliberate judgment following wide consultation, including with the Commission for the Administration of Justice (“the Commission”). The judiciary were to be in a majority to guarantee judicial independence depriving the Legislature and the Executive from subjugating the judiciary to their will.

The government is through Bill 145 of 2016 proposing the establishment of a constitutional Committee for Judges and Magistrates (“the Committee”) within the Commission composed of three members drawn from the Commission. Substitute members are to be appointed in case of challenge or abstention of a Committee member.

In terms of the Constitution, the Commission is composed of: the President of Malta, the Chief Justice, the Attorney General, two members elected by and from judges, two members elected by and from magistrates, two political appointees (one appointed by the Prime Minister and another appointed by the Leader of the Opposition) and the President of the Chamber of Advocates.

Bill 145 does not debar the Commission from placing on the Committee the Attorney General, who represents the government in court litigation and is the chief government legal adviser, and the two political appointees.

Among themselves these three Commission members can appoint, why not, the Attorney General as the Committee’s chairman. The president of the Chamber of Advocates can then be appointed substitute member; unless it is the Chief Justice who is appointed substitute member after he would have issued the definite charge against the recalcitrant member of the judiciary.

The Bill transforms the judiciary into loyal civil servants at the beck and call of the government

What’s wrong after all in being prosecutor and judge at one and the same time? Inquisitor Pietro Duzina would surely have loved Minister Owen Bonnici’s Bill!

The three Committee members will adjudicate minor disciplinary offences committed by the judiciary even if these members might well practise the profession of advocate day in day out in court or have formulated the definite charge.

At the very inception of the disciplinary proceedings, the judiciary have already been condemned to be punished, the only thing remaining to be decided is the severity of the penalty.

That very same human right which they are called upon to administer – the right to presumption of innocence – will not apply to judges and magistrates at the dock. Due process of law becomes totally irrelevant, a luxury which Malta cannot afford.

The independence of the judiciary would be relegated to legal history books. The judiciary would become absolutely subservient to the government’s modern and progressive vision for the justice sector.

Minister Bonnici’s Bill would, however, have made Inquisitor Pietro Duzina blush for not having including it in his armoury for castigating unrepentant infidels!

The main defect of the Bill lies is its unconstitutionality. It is alsoill-conceived, violates the independence of the judiciary, runs counter to human rights (remember Demicoli v Malta), transforms the judiciary into loyal civil servants at the beck and call of the government, is in a constitutional mess and is a travesty of justice.

The Bonello Commission report does not display these serious pitfalls. Indeed, the independence of the judiciary is a more fundamental issue than tackling court delays.

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