[attach id=628981 size="medium" align="right"]A preliminary sketch for the cover of a 1981 book no editor found the courage to publish.[/attach]
The old Rules of Court governing human rights applications ordained that any action for redress of alleged violations is to be considered as inherently urgent and has to take precedence over other litigation. It should be self-evident why.
Some constitutional judges honoured this precept. Others took a perverse pride in pulling the ‘expeditious hearing’ requirement inside out, turning it from a protection of the victim against the powerful that the Constitution meant it to be, into an industrial crusher at the service of the government to mince the victim.
It is not that these judges never expedited human rights cases. Oh no! Some cases they tried with Formula One in mind, and others languished unnervingly for years. Then you check, only to find a weird coincidence. The precipitous ones are those in which speed suited the government admirably, and the interminable ones were those where a timely decision would have relieved the pains of downtrodden victims.
During a strike ordered by the union of bus owners, the police started massive criminal prosecutions against the strikers. The owners instituted a human rights action, claiming the unconstitutionality of a law which exacted an impossibility from them under the penalty of criminal sanctions. The criminal court, very reasonably, suspended the police prosecutions while their legality was being tested in the constitutional court. The regime, and the regime’s police, did not hide how miffed they were by this legal mishap.
Unheard of wonders then started occurring in the constitutional court. For the first and only time in history, the constitutional judge, when neither of the parties had even requested it, ordered the human rights case to be heard with urgency, on his own initiative, immediately. The lawyer of the strikers was abroad but informed the court he would cut short his trip and return the next day. Would the court postpone by 24 hours?
Not on your life, retorted the constitutional judge. The ministers were in a desperate hurry to jail the bus owners and the judge would not let any silly human rights decencies stand in tyranny’s way. He disposed of the owners’ claim in absolutely record time. And, guess how? Government was devoutly and awesomely served.
It so happened that the very same judge was also in charge of another human rights case. The government had banned a university student demonstration against current educational policies, and the deluded students sued for their human right to demonstrate peacefully. This time Mr Justice Speedy Gonzales remained extravagantly asleep, snoring away all those follies of freedom of expression and the whimsies of freedom of association. No ex officio order, this time round, for the claim to be heard with urgency. Naaah! He set down the date for the first hearing… 265 days after the lawsuit was filed.
The case crawled forward, propelled by asthmatic wheezing, and was finally put off for judgment. Many, many years later, the judgment had yet not been delivered. That is what the constitutional court understood by ‘expeditiously’. It means at reckless speed, provided swiftness ensures the visible bruising of human rights.
Toni Pace, too, experienced this on his own skin. He lived with his geriatric wife and his paralysed son in a property coveted by a friend of the minister. One day, without warning, the family was forcibly evicted in the middle of the road, their furniture and belongings dumped in a public scrapheap. The minister immediately assigned their home to his canvasser. The delusional Mr Pace filed for protection of his right to a home and not to suffer inhuman and degrading treatment.
The constitutional judge made very short shrift of the victim’s arguments. The privilege of being homeless through State action and seeing your paralytic son sleep in a field were not to be disturbed by a human rights court. In a judgment three lines long – three – the judge declared that the protection against inhuman and degrading treatment only applied to criminal punishments. So if you are not a criminal the State is at liberty to treat you inhumanely and cruelly. Immediately after throwing up this cretinous barbarity, the judge (the Attorney-General’s brother) was wafted straight to the full Constitutional Court.
Mr Justice Speedy Gonzales remained extravagantly asleep, snoring away all those follies of freedom of expression and the whimsies of freedom of association
Mr Pace appealed this outrage to the Constitutional Court. The case was heard and wrapped up for judgment. That court did not deliver judgment on the first adjournment, nor on the tenth, only after the SEVENTIETH (70th) adjournment. Seven years later, the Constitutional Court was still pondering whether it is only criminals who have the right to be protected against inhuman and degrading treatment. Meanwhile, Pace remained homeless and the minister’s buddy enjoyed the purloined home.
The selective tempos of the constitutional courts are fatal headstones strewn all over the cemetery of human rights law in Malta. In an election campaign, the Opposition party had placed an electronic display panel over its headquarters in Valletta, to flash news items and political promotion during the run-up to the poll. The government ordered the Opposition to switch off the panel. The Opposition obtained a court injunction against the government threat. Raucously deriding the injunction, the government cut off the electricity supply to the Opposition headquarters. The whole building was in total darkness, save for the odd candle and the flickering oil lamp.
The Opposition sued with urgency against this shameful violation of their rights to freedom of expression and protection from political discrimination, and the court found in their favour – government had to restore electricity instantly. The government appealed this measure to the Constitutional Court. The Opposition requested the provisional enforcement of the judgment during the pendency of the appeal. The Attorney-General opposed, and the Constitutional Court agreed with the government – no provisional enforcement, night all day long was deemed virtuous. The court, however, formally undertook to deal with the appeal ‘urgently’. The headquarters remained in darkness.
The elections came, and went, and still no decision by the court. The appeal was disposed of with such daredevil urgency that, three months later, judgment was still very absent, darkness very present.
The reasons given by the court for postponement after postponement were often quite endearing really. Once, the Chief Justice announced a further adjournment because… because he had ordered a law book from the US, and there had been a delay in the mail. American case law would have been most enlightening, no? There are scores of reported cases where the party in government paralyses the Opposition by cutting off the electricity supply to its headquarters. Urgency, yes, but not at the expense of not having a look at the American book.
So, compliments of the diligence of the Constitutional Court, the government disabled the Opposition for the whole duration of an election campaign, and the guardians of constitutional democracy found absolutely nothing wrong with that. Nothing at all.
A last example of scores I could quote: A judge, in his personal capacity, had misappropriated the garden of frail old neighbours and kept it as his own. The neighbours finally sued him for its return. The judge defended his thieving by claiming they had sued him in the wrong tribunal. Meanwhile, that judge had been appointed president of the Constitutional Court. Could the neighbours then expect judgment against him to recover their stolen property?
If they hoped that at all, the courts soon disabused them with an appropriate answer: you must be clinically deluded to expect a judge to pass judgment against the president of the Constitutional Court personally. To decide whether it was court A or court B that had to determine the eviction of the president, the court postponed judgment quite a few times. Well, not quite a few, actually 66 times, and 66 is not a misprint. To determine this insignificant preliminary issue, the court dragged its feet for 11 whole years. Shamelessness had become a constitutional imperative.
Eleven years in which the president enjoyed the nicked garden, and the old neighbours enjoyed their despair. The case was decided just after the president retired, but that would be a coincidence now, wouldn’t it? This was the very first case in Malta where the litigants had to creep to the constitutional jurisdiction to accuse the courts of dereliction of their fundamental duty to give litigants “a fair hearing within a reasonable time”.
When the Emperor Traianus was rushing his armies to the battlefront, he was stopped on his march by a miserable widow with a petition against an injustice she had suffered. The emperor’s officers rebuked him for the delay. “Victory can wait,” answered Traianus, “Justice can’t”. He was not heading for Malta.
Giovanni Bonello served as judge at the European Court of Human Rights in Strasbourg for 12 years.