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Benchmarking the judiciary

Justice Minister Owen Bonnici’s decision to promote Magistrate Consuelo Scerri Herrera to a judge again underscores this government’s lack of respect of statutory bodies.

Such disdain is usually demonstrated by ‘strongmen’ and autocrats who resort to gagging or discrediting the independent press, weakening the judiciary, also by appointing stooges and cronies, torpedoing the institutions and branding as enemies of the state those who flag such grave shortcomings. The casualties are good governance, the rule of law and, ultimately, democracy itself.

Prime Minister Joseph Muscat argued that Dr Scerri Herrera should have been made a judge years ago. Why did he not promote her earlier? Had he done so he would have avoided an embarrassing situation not just to the new judge herself and to the government but, more importantly, to the justice system itself.

Dr Scerri Herrera had been rebuked by the Commission for the Administration of Justice because of her behaviour in her private life. Still, Dr Bonnici nominated her for the post of judge last year, a proposal rejected by the Judiciary Appointments Committee. He tried again, successfully, after a new Chief Justice was appointed last April.

The government could have ignored the Judiciary Appointments Committee’s first decision and went ahead with the promotion but, by law, it would have had to justify its decision in a statement in Parliament. Regrettably, the committee is not bound by law to explain why it changed its opinion within a matter of months. That is a burden each member will have to carry forthwith.

What many people, including the Prime Minister, the Justice Minister and, now, the committee members too, forget is that for a person occupying such a sensitive position as that of a judge or a magistrate there is really no sharp distinction between private and public life.

One can be brilliant ‘on the Bench’ but if ‘off the Bench’ one allows one’s private life to lead to inevitable gossip and wincing, one would be failing in one’s duty as a member of the judiciary.

The judiciary’s code of conduct specifically says: “Members of the judiciary, as other persons, have a right to their private life. However, in this context, members of the judiciary are to ensure that their conduct is consistent with their office and that it does not tarnish their personal integrity and dignity which are indispensable for the performance of their duties.”

They are also expected to “conduct themselves, both in court and outside court, in such a manner as not to put into doubt their independence and impartiality or the independence and impartiality of the office they hold.”

The code also demands that members of the judiciary do not associate or show familiarity with individuals or associations that could discredit them or the office they hold. They shall also “avoid conduct that could give rise to public scandal”.

Certain images circulating on the social media had prompted the previous Chief Justice to note in the guidelines to the code of ethics: “Since propriety, and the appearance of propriety, are essential to the performance of all the activities of a judge, membership of ‘social networking internet sites’ is incompatible with judicial office.” This proviso appears to be more honoured in the breach.

As Seneca would say: to err is human but to persist is diabolical.

This is a Times of Malta print editorial

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