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The human rights freak

Photo: Darrin Zammit Lupi

Photo: Darrin Zammit Lupi

Giovanni Bonello has retired from his posting as a judge at the European Court of Human Rights. He talks to Kurt Sansone at the start of his sabbatical from a career that saw him plough through thick and thin.

The Constitutional Court last week found former Labour Minister Lorry Sant guilty of breaching architect Rene Buttigieg’s human rights. The judgment may vindicate those who stood up to the suffering of the time but it does little to console family members, who were not awarded compensation. Is this how justice works?

The judgment was in part satisfactory but I can understand the family’s reaction of feeling aggrieved after a 20-year wait only to be told that Mr Sant was a naughty boy and they should now get on with it.

In principle, the only way you can establish the importance of the observance of human rights is to attach a penalty to their violation. It is not sufficient in my view to just confirm that a violation has taken place.

This has been my view in Malta and in the European Court of Human Rights. Not everybody shares my opinion but I strongly believe that compensation is the natural consequence of any breach of human rights.

You were a prominent lawyer at the forefront of human rights cases in the 1980s. What memories does this judgment bring back?

I defended about 170 human rights cases in the domestic and international human rights courts. This case brings back a sense of outrage for a sorry situation in which human rights were violated by the state and the victims found little protection from the courts.

Was justice done after 1987 when there was a change of government?

Perfect justice is utopia; an ideal we cannot even aspire to. Some justice was done. Life was more or less normalised and what had become the norm before – the non-observance of human rights – did not remain the norm. There are still violations of human rights in every state, no matter how democratic it is.

However, there are core violations such as the right to life, torture and denial of justice and other violations, equally important but more peripheral. In Malta we have surpassed the state of core violations of human rights. We are at the more refined frontier of human rights.

A Nationalist government did not appoint you to the European Court of Human Rights. Were you let down?

I felt let down because I had been at the forefront of all human rights battles, both in the social and legal field. Singlehandedly I had defended more human rights cases than all the other lawyers put together.

I had a record and was identified by the people as the human rights freak; the person who stuck his neck out for human rights. Back then the thorns were all in my garden and the moment a flower appeared it was somehow sent to somebody else’s garden.

Your appointment to the Strasbourg court came some 10 years later under Alfred Sant’s Labour administration. Is this historical irony?

I prefer to think of it as historical justice. It is true that I had opposed the abuses of the Labour Party but when it aligned itself again on the democratic front then it was no longer a matter of right and wrong but a matter of shades of political opinion.

Dr Sant did what people expected him to do. He did the right thing in choosing the person who had identified with the defence of human rights through thick and thin.

Is there a particular case in your career that stands out?

One case that had particular relevance was the Demicoli case, which I had argued as a lawyer both domestically and in the European Court of Human Rights. It was the very first case brought by a Maltese citizen in the European Court.

Charles Demicoli was the editor of a satirical political newspaper that had criticised some Labour MPs. The MPs felt offended and instituted a case of breach of privilege in Parliament.

Breach of privilege exists only in the UK, Ireland, Cyprus and Malta. It is a very strange procedure by which Parliament converts itself into a criminal court of law, acting as victim, prosecutor, judge and jury at the same time and if found guilty the defendant can be sentenced for up to two months’ jail.

Demicoli questioned whether it was right for him to be judged and sentenced by the victims of his own satire. He argued that Parliament was not an independent and impartial tribunal. We lost the case in Malta but when we took the case to Strasbourg we won hands down.

The case had great international repercussions because although breach of privilege remains on the statute books of the UK, Ireland, Cyprus and Malta there has never been a criminal prosecution since.

The perception created by the European Court of Human Rights judgment in the Lautsi case (crucifix in classroom) is that the court is disconnected from the cultural traditions of the individual member states. Is this the case?

I will not answer about the Lautsi case because it has been appealed and is now in front of the Grand Chamber, which I still form part of. I will remain active until the pending cases I was assigned to, are decided. The Grand Chamber will make the final decision on the matter, possibly by year’s end.

The Lautsi case is probably not the most important judgment of the court but it is the one that has raised most controversy. We have to keep in mind that the European Court of Human Rights is the supreme court of Europe. There is nothing in Europe relating to fundamental rights that is not subject to its jurisdiction.

There were more wide-ranging and sensitive cases but this one some­how hit the popular imagination.

It touches upon religion.

It touches areas which are always highly sensitive. There are cultural and historical elements that have to be factored in.

In a situation where you have different countries with their own laws, norms, cultures and traditions, can people connect to the European Court of Human Rights, especially on issues that relate to the cultural fibre of a country?

The Strasbourg court can overrule any court, government or institution in Europe, as it has repeatedly done. However, the court has adopted a two-pronged philosophy: European consensus and margin of appreciation.

European consensus means that the court would tend to accept something as acceptable behaviour if by and large this is so in a majority of states.

Margin of appreciation means there are some areas in which the domestic authorities are better-placed to pass judgment than an international court. One such area is morality, which varies from one country to another. The court may say the issue depends on local traditions, culture and local historical facts and the court will not interfere.

Mgr Arthur Said Pullicino called on judges to be conscientious objectors and not apply a divorce law if it becomes legal. What is your reaction?

Marriage is a civil contract and to some it is also a sacrament. The Church has every right and duty to inform people of its teachings and apply its discipline on the sacramental aspect of marriage.

However, even though the Church has every right to express an opinion, it would not be proper for it to impose its own norms on something that is purely a civil contract. The civil contract of marriage is something for the state to regulate.

But do you see the possibility of a judge ever desisting from hearing a divorce case?

I believe in conscientious objection. How far it is compatible with duties imposed by the state is a different story. The more classical conscientious objectors are people drafted to serve in the armed forces, who feel it is not right to bear arms against other human beings.

Many states recognise the right not to do something that goes against your core values. Whether a judge should be permitted to opt out of something that the state imposes is a very delicate question.

Judges generally have to observe the law and they do not have a personal opinion of whether the law is right or wrong. If they do have, they keep it very private.

Judges can feel that some laws are not right but do they have an option whether to let their conscience supersede their civic duties? I do not have an easy answer to this. The matter should be debated much more in depth.

In a case instituted by an Irish citizen 24 years ago the European Court of Human Rights had decreed that divorce was not a human right. You have argued that the court today may either confirm or overturn that judgment. Is justice dependent on changing circumstances?

Yes, justice also depends on circumstances and perceptions.

There was a time when very few saw slavery as something wrong. Today, there is a general perception that slavery is morally, ethically and legally wrong. This is an extreme example of how perceptions do change.

A classic example of how the court has changed its opinion can be found in three decisions about the status of post-operative transsexuals. Do they have the right to insist that the state should recognise their newly acquired gender?

In the very first case the court voted almost unanimously that the transsexual did not have the right to make any claims on the state. In the second case raised some time later the court decreed against the right but it was evenly split with one vote only tipping the balance.

In a third case raised 10 years later the court unanimously agreed the claimant had a right to have his post-operative gender recognised by the state.

This means that fundamental human rights do change.

Not exactly. If one wants to be cynical, fundamental human rights are those recognised to be such by the European Court. It may sound like a conceited explanation but it is reality. The final say of what is a fundamental human right and whether it was violated rests with the European Court of Human Rights.

Should something like divorce be subjected to a referendum or should parliamentarians take the responsibility of deciding on the issue?

I believe this is something strictly for Parliament to decide. If it was a fundamental right I would definitely not put it to a vote in a referendum. I do not think majorities should have any say in whether torture should be acceptable or not.

At this stage, divorce is not a fundamental right. It can be a civil right and it is for Parliament to decide on.

In principle I am against submitting minority rights to referendums but if that is a political solution so be it. If I had to have a final say I would be against a referendum.

Can the European Court of Human Rights ever impose abortion on Malta?

Abortion and divorce are totally different issues. People make a mistake when they put them in the same basket because the values involved are significantly different. However, up to now the court has always avoided defining when protected life begins. It is a matter that has been left open and there is no case of the European Court of Human Rights, so far, that says abortion is a right.

The court has said other things, which some people have misinterpreted. I was part of the Tysiac vs Poland case, which dealt with abortion. In this case Ms Tysiac felt aggrieved because despite abortion being legal in Poland if the mother’s health is in danger it is practically impossible to obtain one.

The court was not called to determine whether abortion was a right or not but whether Ms Tysiac’s rights were breached because she was denied access to a right that was on the statute books. The court had found a violation of Ms Tysiac’s right.

I cannot discuss the case of the three Irish women currently before the court because I am involved in this case as well. The three women posit different scenarios and they are claiming their fundamental rights were breached because they were forced to seek an abortion in the UK. This time the court may have to take a closer look at the issue of abortion.

In his inaugural speech Chief Justice Silvio Camilleri said the time may be ripe for a review of the Commission for the Administration of Justice. Do you see the relevance of having such a Commission?

Disciplining members of the judiciary is an extremely sensitive issue. In principle judges should have the greatest freedom possible from interference from any power. They are answerable to the law and to their conscience.

The moment you start putting in place systems of discipline you may be infringing this basic requirement of justice; that judges be independent and impartial. If a judge has to look over his shoulder to see whether somebody is happy or unhappy with what he is doing that may create complications against the administration of justice.

On the other hand, you cannot have anarchy. Every organisation has to have some sort of disciplinary control. The difficulty is where to strike the balance between legitimate control and abuse. In Malta we tried to achieve the balance by creating the Commission for the Administration of Justice, realising that discipline should not rest solely with Parliament by means of impeachment approved by a two-thirds majority.

The Commission has been accu­sed of closing an eye on some cases and being strict with others; it has been accused of having interests because the people who form the Commission are either friends or partners of people being judged by it.

There is no perfect solution to the problem. In some countries there is the supreme council of the judiciary, composed of senior judges. They are given powers to keep order among members of the judiciary. This could be a solution in very large countries where senior judges would not know other judges intimately but in Malta everybody is either a friend or non-friend. There isn’t an easy solution.

However, judges should always be protected from political interference. I would be strongly against any measure that gives more power to politicians to interfere with the administration of justice.

But there is this perception that judges and magistrates can be above the law. Is this right?

The government should start by appointing judges and magistrates who are ethically-minded and have a proven record of responsibility. This is where sometimes it fails.

Society must give more latitude to a team which by definition is made up of responsible, ethically-motivated people. It is another thing to have a team where this presumption is absent.

I would be prepared, whatever the perception is, to give a team of select jurists with a proven record of integrity and efficiency latitude and free them from political pressures. This is what should happen in an ideal world because choices can be made in good faith and then turn out to be faulty.

This shifts the argument to how members of the judiciary are chosen. Should appointments to the bench remain the sole responsibility of the Justice Minister?

This is another aspect of colonial heritage. It is only in Anglo-Saxon countries that judges are chosen exclusively by politicians. In most other countries the judiciary is a career. You study to become a magistrate and a judge, as distinct from becoming a lawyer.

No system is perfect but I think such systems have worked better because all promotions are by exam and competition.

Malta should open its eyes and ears to alternative experiences in Germany, Spain, France and Italy where it is unheard of to say that one fine day the Justice Minister or the Prime Minister woke up and appointed someone who was always partial in his career as a lawyer to a post where he is expected to become impartial overnight.

Fellow ECHR judge Sir Nicolas Bratza, in his speech marking your farewell in Strasbourg, described your dissenting or concurring opinions as ‘literature’. Will literature characterise your retirement?

I have done my fair share for human rights and I think I will be taking a sabbatical. I have other interests in life and have always kept them going in parallel with my career.

At the young age of 74 I am entitled to look for a new job. I have been commissioned by the government to take on the difficult and prestigious job of renovating the Presidential Palace in Valletta. The teams are in place and I hope the material works will start in the not too distant future once the budgeting is in place.

Watch excerpts of the interview on timesofmalta.com

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