I POLL

The iPoll is a synergy between MaltaToday, the Internet and you the readers.

Every week the web sites www.maltatoday.com.mt and www.maltamag.com will feature an opinion poll on a particular issue. The results of this Internet poll will then be published in MaltaToday the following Sunday along with an opinion article.

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This week’s issue concerns the judiciary and business. In Malta members of the judiciary are not barred from having commercial interests, however there are a number of ethical concerns that can be raised. We asked a lawyer to share her views on the subject.

The judiciary, commercial interests and impartiality

By Dr Anna Mallia

I personally think that it should be the obligation of the judge or magistrate to inform the parties of any commercial interests he/she may have with either. It will then be up to the parties to declare if they wish the case to continue to be heard by that judge or otherwise.
The judiciary is expected to be independent and impartial. The Code of Ethics for Members of the Judiciary allows them to administer their personal assets and belongings in the manner most beneficial to them but their conduct is not to put into doubt their independence and impartiality, or the office they hold.
Our Code of Organisation and Civil Procedure (COCP) does not treat all commercial interests as grounds for abstention or challenge of a judge. Only ‘if he is the administrator of any establishment or partnership involved in the suit is the judge expected to inform the parties or are the parties allowed, to challenge him.
The question is whether there is any point in knowing that the judge has commercial interests with your opponent, if you cannot challenge him. Should the grounds for challenge or abstention of a judge mentioned in Section 734 of the COCP be extended to include commercial interests?
I would not hesitate to say yes and go one step further. I believe that membership in organisations, associations and bodies should also be included. The Code of Ethics clearly states that "Members of the Judiciary shall not join organisations, associations or bodies, which in their nature or in the purpose of their existence can be in conflict with their independence or impartiality"
The problem here is more complex. Whereas in most commercial interests the Public Registry and the Registrar of Partnerships provide information on the nature of the activity and the persons involved, in some of these organisations, associations or bodies, the nature of their statutes and of their oath of allegiance is kept secret.
I, therefore, firmly believe that commercial interests and membership in organisations, bodies or associations should be included in the Code of Organisation and Civil Procedure as grounds for challenge or abstention of a judge when they are in conflict with the independence and impartiality of the judiciary.
As to the publication of the judiciary’s interests, I would limit it to the interests they have in organisations, bodies or associations and the relative oath and statutes, for the reasons I have mentioned.

Dr Mallia is a practising lawyer and regular media contributor.