Parts of the judiciary of Malta have been totally consistent in inconsistency. You rarely know where they stand when it comes to abstaining in cases in which they have been challenged or in which stepping down was an option. Some hung on to cases which they should have dropped, and some left in cases where they should have hung on. The Code of Civil Procedure lists those circumstances when a judge or magistrate should not preside over a civil or criminal case – all instances of presumed bias, partiality or lack of independence.

But that old list in that old code is, actually, quite irrelevant. Often, in practice, extremely harmful, when it is availed of to defeat the very reason of its existence – fairness and impartiality. “I stay on, it is not a listed reason”. Overriding that list is the constitutional imperative that all people in Malta must receive a fair hearing by an independent and impartial tribunal.  Any circumstance that puts their independence or impartiality in doubt, whether listed or not, compels the judge to drop the case like a scalding tuber. How difficult is that to understand? Years and years in court have taught me: difficult? No, just impossible.

I won’t repeat the tired platitude that justice must not only be done, but must also be seen to be done. More important for those who want dominion though tyranny, is exactly the opposite. To be effective, injustice must not only be done, but must also be seen to be done. Malta is hardly short of examples.

Let’s start with those judges who had a duty to administer justice, and instead fled in a panic fitting a tear-gas attack.  When faced with a massive assault on human rights by an unrelenting regime, several judges discovered in discretion the better part of valour. Remember the mass exodus of the judiciary in the Church schools case? The government had banned private Church schools charging any fees at all under penalty of being closed down: jew b’xejn jew xejn. The schools challenged in court this oppressive persecution, a death penalty for private Church schools, and won in first instance.

Government appealed to the three-judge Constitutional Court. And here a squalid epic of heroic cowardice played out in full view of the nation. One judge scuppered fast because 30 years earlier his sister had taught in a Church school, another tripped in his feet because, decades before, he had given advice to a convent about a party wall. The tender conscience of a third judge suffered intractable pangs because the stepsister of his second cousin by adoption had attended kindergarten in a Church school. Did another recoil from the case because he drove daily past a Church school on the way to work? I am not sure of the details. One by one, the eligible judges joined the retreating choir, lustily singing Coraggio fuggiamo, in harmonic unison, gathering the momentum of disgrace, tucking back bits of their lily-livers as they fell on the way.

They fell, one after the other, with the elegant predictability of skittles hit by vindictive bowling balls, until only three remained. The government was ecstatic. Get those three remaining judges to abstain, and voilà, no judges will be left to decide the case! The government insisted that the last three available judges should step down too. In one of those miraculous moments of epiphany, the last three judges refused, and the case proceeded to a genuinely fearless judgment. Salute them: Wallace P. Gulia, Stephen Borg Cardona, Joseph D. Camilleri. A major epic of arrogant and serial gutlessness, but, for once, with a proud ending.

To be effective, injustice must not only be done,but must also be seen to be done

Contrast that with all those cases when the assigned judge or magistrate should not have touched the case with sterile pincers, but equally did, only to be shamed by the Strasbourg court for his crass insensitivity to the basic decencies of impartiality and fairness. The Maltese legal system allows a decided case to be reopened in a few, clearly defined, cases, e.g., when relevant new evidence is discovered, when a determining witness has been found guilty of perjury or when the judge has applied the wrong law to the facts before him. The code of procedure allowed the judge who had decided the first case, to sit on it again if the case is reopened. No problem at all arises with the same judge re-deciding a case after the discovery of new evidence.

But what about re-opening a decided case on the grounds that the judge had applied the wrong law? Do you have it re-decided by the same judge you are accusing of having already made a mess of things by applying the wrong law? To re-determine this case, the judge has to confess publicly he had no clue as to what law he should have applied in the first place; this puts anyone’s ego under considerable stress. The judge would thereby be certifying his own incompetence. In actual fact, he would not be judging the case – he would only be judging himself. A very fair hearing by an eminently impartial judge – judging himself, don’t you find? If he got it wrong the first time, he must be authorised to try again, no?

And yet, the Constitutional Court in Malta found nothing wrong in that – the judge accused of being a useless bungler had the right to decide whether there were good reasons to re-try the case he was accused of having bungled. I did some research on this issue. In over 150 years of retrials, not one single case is on record in Malta in which a judge brought himself to admit how daft he had been to apply the wrong law. Now isn’t that utterly reassuring?

It had to be the European Court in Strasbourg that put an end to this shaming nonsense. Had it been for the Constitutional Court, a litigant who was accusing the judge of having applied the wrong law against him, had to leave it to that very judge he was accusing of having been unfit for purpose, to decide whether the case had to be retried – because of his own incompetence! Your confidence in the judiciary soars.

The Strasbourg court had to set straight other Maltese cases too. In civil litigation, one party was defended by a lawyer who happened to be the brother of a judge. The other lawyer had alleged that his client had been prejudiced – not by the behaviour of the opposing party, but by an irregularity he attributed to the judge’s brother’s personal action. On appeal, the case came up for hearing in front of the brother of the ‘accused’ lawyer. Should that judge have heard the case which, in substance, was deciding whether his brother had acted correctly or not? The judge saw nothing wrong with deciding that – what was unbearably offensive, he believed, was the suggestion that he should step down. The Constitutional Court cheered these aberrations. The Strasbourg court, both in Chamber and, again, in Grand Chamber, shot down these rogue atrocities, incredulous that such crass behaviour had actually received the seal of approval by the supreme court of Malta.

The resistance of some members of the judiciary to withdraw from cases in which their impartiality could appear problematic has old roots. The very first case in which a constitutional human rights challenge was mounted because of a magistrate’s refusal to step down goes back many years. The magistrate’s father, a lawyer who administered the property of a major Church entity, had devised a scheme for the assignment of lands which, a third party claimed, had prejudiced his rights. He sued in court to contest this scheme and the case came up for hearing before… the magistrate, son of the administrator who had devised the scheme. The administrator appeared as lawyer before his son to defend his scheme.

The magistrate refused to abstain “as that was not one of the listed reasons for which a magistrate could be challenged”. The fact that, in substance, he was actually judging the actions of his own father was irrelevant. The constitutional court, for the first time, established the principle that the judiciary must step down not only in the cases listed by the Code of Procedure but whenever their fairness, independence and impartiality seem open to reasonable doubt. Obvious, or major breakthrough? I could recount a dozen of these episodes.

At present the Maltese courts are dealing with a record number of high-profile cases in which these principles are being tested. Is it too much to hope they will surprise us?

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

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.