The involvement of members of the judiciary in commercial and business activities should not be tolerated, according to legal experts.
And the latest revelations on the matter made by the Times of Malta highlight the need for a register of assets for members of the bench, they insist.
Research conducted by the Times of Malta revealed that magistrates Aaron Bugeja and Joanna Vella Cuschieri are still registered by the Malta Financial Services Authority as acting as company secretaries of private commercial companies.
A number of judges and magistrates hold shareholdings in business ventures.
Retired judge Giovanni Bonello, the former chairman of the commission which made recommendations to the government on justice reform, told The Sunday Times of Malta that in many democratic countries “there exists a total ethical incompatibility between the exercise of the legal profession and the carrying out of commercial activities”.
Judge Bonello said that while in Malta this distinction is never observed where lawyers are concerned, it used to be observed by the judiciary.
Total ethical incompatibility between legal profession and commercial activities
“It was only in the 1970s that the first ‘judges businessmen’ began to be tolerated, then accepted. Since then, the downward trend seems unstoppable,” he said.
“I do not believe that this phenomenon exists in other civilized, democratic judiciaries,” he added.
He observed that the judicial scandals experienced in Malta so far mostly involved judges who were also businessmen.
Asked why his commission had left out this aspect in its recommendations to the government, Judge Bonello said that when dealing with the criteria for the selection of judges and magistrates, the Commission had stated that “one of the qualifying factors for admittance to the judiciary shall be the absence of commercial activities in business in the candidate”.
The dean of the Faculty of Law of the University of Malta, Kevin Aquilina, agrees with the need for more transparency from members of the judiciary.
“I do not think that members of the judiciary should be allowed to be directors of commercial entities as there would be a conflict of interest between their judicial office and the directorship,” he said.
“On the other hand, the judiciary should be allowed to invest in property in the same way as other Maltese citizens do, provided, in order to be above board, that they file an annual confidential declaration of assets directly with the Auditor General.”
Asked whether magistrates should be allowed to act as company secretaries, Prof. Aquilina’s answer was an outright “no”.
Although, according to the code of ethics, members of the judiciary are allowed to own shares, they are specifically precluded from directorships.
Still, they are not bound to make an annual declaration of assets, as is done in many democratic jurisdictions in the interests of transparency.
A draft proposal made by the Justice Reform Commission in 2013 for the creation of a register of assets was dropped in the final recommendations following resistance from the judiciary.
In their written submissions, the judiciary agreed in principle with the proposition so long as this be also introduced for other public officers.
This made the proposal difficult to implement and was dropped. However, according to legal experts, nothing precludes the government from introducing such a measure for the judiciary.