Lord Justice Devlin sadly remarked that, when exercised arbitrarily, “the discretion of a judge is the first form of tyranny”. The Maltese experience shows how intensely tyranny has overused this tool.

I am today homing on the ‘judicial discretion’ that the Constitution entrusts judges to exercise in certain cases. Delegating discretion to judges is often inevitable and not inherently wrong. Unfortunately, sometimes the Maltese courts have understood next to nothing as to how judicial discretion is to be exercised.

Take the discretion that the Constitution confers on judges to decide whether to take up a human rights complaint or not. The Constitution states unambiguously that all human rights complaints have to be addressed to the constitutional judges – that is the rule. Exceptionally, the constitutional judge may refrain from taking up the complaint if he or she is satisfied that other means of redress “accessible, effective, adequate and complete” are available to the complainant. But exceptionally.

So, the constitutional judge has a ‘discretion’ whether to take up a human rights complaint, or not to take it up if he believes there was another remedy available. Does he exercise this discretion capriciously, arbitrarily, one way or the other depending on which side of the bed he got up that morning? Several Maltese judgements on this particular issue suggest the answer is: yes. Naaah, today I don’t feel like human rights groans. Throw out the victim’s case, pass the popcorn and switch on the telly.

Yet some very simple rules guide judges on how to exercise judicial discretion. Here are two of the easiest and most fundamental:

The first rule is that, if judges have a choice between two possible lines of action, they should choose the one that best PROMOTES the objects and reasons of the law they are applying. What are the objects and reasons of the human rights chapter of the Constitution which confers this discretion on the judge? That chapter exists solely to ensure the protection of human rights. So the easy test is: how will the constitutional judge defend human rights best: by taking up the human rights complaint? Or by throwing it out? Will it surprise you if I say that many courts have pounced on the discretion – but to unprotect human rights, to acquit the violators of human rights and to push the human rights victim away empty handed?

This is smashing the very first rule on how judicial discretion is to be exercised. Exercising judicial discretion AGAINST the protection of human rights, rather than to promote them. Unbelievable!

The second rule is that judicial discretion should be exercised in such a way that promotes the rule, rather than the exception. The discretion granted by the Constitution to constitutional judges gives them the option of either trying the human rights complaint in the constitutional court, or throwing it out.

This is injustice enjoying itself to delirious levels, but beautifully packaged in legal jargon

The first promotes the rule, the second promotes the exception. The rule, established by the Constitution itself, is that all human rights complaints should be brought to the constitutional judges. It is the EXCEPTION that human rights complaints can be tried elsewhere. So, how can constitutional judges exercise their discretion AGAINST the rule established by the Constitution itself, unless they motivate this exception-over-rule bias by the weightiest of considerations?

In many cases, the refusal by constitutional judges to grant relief to human rights victims, on the grounds that they should have knocked somewhere else, was a grave abuse of their discretionary powers, a dereliction of judicial duty and a perversion of the very basics of constitutional law. Our sorry constitutional case law is littered with these abuses, these misunderstandings, these derelictions of duty. I will mention a few of the dozens I know.

Mr CBG was arrested and detained by the police without having been informed of the reasons for his arrest, when the Constitution imposes on the arresting officers the obligation to explain to arrested persons the reasons for their arrest. His father applied to the constitutional judge to redress this violation of human rights.

“What?” yawned the judge. “Out. You should have filed an application for habeas corpus in the criminal court. I wash my hands.” So the father dutifully applied for habeas corpus protection in front of a magistrate of the criminal courts. “What?” said the magistrate. This raises a constitutional issue – I refer the matter to the constitutional judges. I wash my hands.”

The case bounced back to the constitutional judge, but the police now raised the plea of res judicata – the matter has already been decided by the constitutional judge. And the constitutional judge agreed with the police. He couldn’t touch a case that had already been decided, now, could he?

Three different courts had all found good and obscene reasons why they should do nothing about a glaring breach of human rights, an indecent carousel in which three courts had so much innocent fun passing the buck, and obsessively washing their hands in between, while a victim lost all hope in police detention.  This is injustice enjoying itself to delirious levels, but beautifully packaged in legal jargon.

Another case of skewered use of judicial discretion:

VS was already serving time in prison when he had to be tried again for a subsequent offence. On the day fixed for his trial, the prison officers brought him to court in his distinctive prison uniform, in full view of the jurors. His defence lawyer did not turn up. VS brought the prison uniform to the attention of the judge, who allowed him to change into civilian clothes, still in full view of the jurors.

Now Maltese law prohibits a previous conviction of the accused to be disclosed to the jurors as that would seriously breach the presumption of innocence – a fundamental human right of every defendant in a criminal trial. In VS’s case there was no doubt that the jurors had been made aware that he was a convict already ser­ving time for a previous offence.

After VS had changed to civilian clothes, the court scrabbled around to find him a dock-brief defence. VS was tried and convicted. His dock-brief lawyer did not appeal – it is quite likely he was not even aware of the prison-uniform incident.

VS instituted human rights proceedings to redress the manifest violation of his presumption of innocence. The constitutional judge was quite emphatic that VS’s human rights had been violated during his trial by jury – and said so very explicitly. But did he exercise his judicial discretion – to give VS redress? What have you been smoking? He used his discretion… to refuse him any re­dress whatsoever. Because his dock-brief lawyer had not appealed.

Now the very first principle underlying the exercise of judicial discretion is that it must only be used in a way that promotes the objects and reasons of the law which confers it. In this case, the objective of the law was the protection of human rights and the redress of their violation.

The constitutional judge en­joyed judicial discretion: either to promote human rights, or to tram­ple on them. He established that human rights had been violated and then used his discretion… to reward the violation of human rights. That is not using judicial discretion, it is pulling it inside out and then stamping on it.

If only the courts were consistent in the use of their judicial discretion. Have a look and de­cide for yourself:

According to Maltese law, some abuses of government powers can be challenged in the ordinary civil courts. So, if that administrative abuse is alleged to have also violated human rights, where does the victim sue? Does the victim go to the constitutional judge, or does he sue in the ordinary civil jurisdiction?

Please don’t ask the Constitutional Court. In two recent cases, the constitutional court said yes in one and no in the other.

In Playing Fields Association it exercised its discretion to say that the victim does not need to go to the civil court, but in Magri, it exercised its discretion in the opposite direction.

In one: you do not have to go to the civil court – you can come straight to the Constitutional Court – you can have your best remedy here. In the other: you did not go to the civil court? You cannot come to the constitutional court. Don’t expect a remedy.

Yes, in Malta, judicial discretion has prominent billing in the festival of caprice and arbitrariness.

Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.