Updated | Chief Justice issues stark warning: the Rule of Law is failing

When tables obstruct pavements, when cars are illegally parked, when buildings are illegally built, ‘these are all consequences of the failure of the Rule of Law’

Matthew Agius
2 October 2017, 1:33pm
Photography: James Bianchi/MediaToday
Photography: James Bianchi/MediaToday
There were strong words of criticism for the legal profession and executive law enforcement as outgoing Chief Justice Silvio Camilleri and Chamber of Advocates president George Hyzler made hard-hitting speeches on the occasion of the first day of the legal calendar.

The Chief Justice was clear and direct in his speech, warning that the country had reached a point where many appeared to do what they want, with flagrant disregard to the law.

“It has almost become fashionable that when criticism is raised about how certain persons are allowed to break the law with impunity these persons respond by saying: ‘because everyone has to eat’,” Camilleri said.

“But this is precisely why we have the Rule of Law, in order that truly everyone is able to eat, and not just the bullies, the daring and those who couldn’t care less about the law.”

These “bullies” are everywhere: “The consequences will have to be borne by those pedestrians who cannot make use of the pavement because it is obstructed by tables and chairs contrary to law, by road users because of cars illegally parked and which obstruct the free circulation of traffic, by those who love the environment who have to submit to buildings constructed against the law and which render ugly the neighbourhood and obstruct light and air, by those ordinary citizens who seek enjoyment by the sea but find no room where they can stay because of deckchairs which unlawfully take up all available space. These are all consequences of the failure of the Rule of Law.”

Chief Justice Silvio Camilleri
Chief Justice Silvio Camilleri
Camilleri cautioned that the Rule of Law must be safeguarded from any deterioration.

“Because that is how the Rule of Law can end, without our even being aware of it: it ends not with a bang, but a whimper,” he warned.

The Chief Justice argued that the true meaning of the Rule of Law is not “Rule by Legislation”, pointing out that if that were the case, “then the most despotic and totalitarian states would also be in conformity with the Rule of Law because they too enact a multitude of laws”.

“The Rule of Law requires that laws are clearly articulated or defined, that laws provide certainty and foreseeability in such a way that every person can predict the legal consequences of his or her actions.”

Camilleri reiterated that the Rule of Law cannot reign if the laws which are enacted, and which are precisely intended to fulfil that Rule, are not applied and enforced.

“The laws need to be enforced by those authorities vested with the power to enforce them. These authorities are not some abstract entities hidden in the clouds but consist of persons and therefore respect of the Rule of Law rests on the extent that these persons discharge their duties according to law and in conformity with the principles of non-discrimination, proportionality, respect of the fundamental rights of the individual, and others. If the persons who occupy those positions fail to discharge their duties impartially and independently then the Rule of Law is undermined.”

In his four-page speech, the Chief Justice made specific reference to the Police, the Attorney General and the Courts – arguing that the Courts would be rendered incapable of enforcing the law if “those authorities who hold the initiative remain inert”.

“The procedure laid down by law for the implementation of the Rule of Law is a good and functionable one but presumes that the authorities on whom relies the entire procedure all carry out their duties without fear or favour. We could think of alternative systems and examine what other jurisdictions have in place but always and everywhere every system eventually depends on the integrity of the persons entrusted to make it work. In default we are faced with something unreal, a distraction and an alienation without substance.”

Chamber of Advocates president George Hyzler (R)
Chamber of Advocates president George Hyzler (R)
Lawyers Act still to be enacted 10 years down the line

In typically understated fashion, lawyer George Hyzler lashed out at the legislator’s continued failure to implement a law regulating the legal profession.

He was equally pointed in his criticism of the government’s failure to enact the Lawyers Act, which has been ten years in the making. “The saga surrounding the creation of the Lawyers Act has reached a nearly embarrassing level... embarrassing not so much to the lawyers, who are doing all they can to have this implemented, but to the Minister of Justice in particular and the administration of the country in general, which despite promises had failed to carry out its duties.”

Constitutional changes to the appointment of members of the judiciary were not enough, the Chamber said. The responsibility for the appointment remained in the hands of the government of the day. He suggested a call for expression of interest for interested candidates, who would then be selected from using established criteria of suitability, eligibility and competence.

“Frankly the system today means that the minister and the cabinet which will be deciding on the appointment has no oversight of the decision of the assessing committee.” This served to discourage potential candidates, said the lawyer.

The committee regulating the legal profession, part of the Commission for the Administration of Justice, was short on basic resources, Hyzler said, adding that he suspected that this was because it was undervalued. In the absence of a law regulating the profession, the committee was the “practically the only shield for the citizen against breaches of professional ethics.”

Hyzler also commented on the warrant exam, the lack of fixed structure to which, was leading to confusion and uncertainty amongst students. The exam should also not only be about court, he opined, as a growing number of lawyers are choosing not to work in court.

Every lawyer should prove his ability through an exam, that not only assesses his knowledge of procedure but which also contains “a good dose of ethics.”

“The time will come when lawyers will need to submit to psychometric testing before receiving their warrant,” he added.

Hyzler also drew attention to the appointment of Court Attorneys, which he hailed as a positive move, which, however needed tweaking. It did not make sense, he said, that a judge can be ordered to recuse himself but a court attorney could not.

More scrutiny on the appointment of court experts was needed, Hyzler said, repeating a call he made last year. He also called for the setting up of specialized courts, pointing to the success of a recent experimental one set up to deal solely with corporate disputes. Specialisation and continuous professional development was also required of the judiciary.

Hyzler also announced the Chamber of Advocates would be gradually introducing the criteria mentioned in the draft Lawyers Act to allow admission to the Chamber.

The warrant should not be the sole requirement to practise law, Hyzler argued, acknowledging that the move would probably be an unpopular one with members of the legal profession.

In view of “the serious absence of government commitment” the Chamber had taken action itself to exercise some control over those who give a bad name to the profession, he said. “It is inconceivable that all lawyers are not members of their respective Bar as in the rest of Europe and in all advanced nations.”

Court reporter Matthew Agius is a Legal Procurator and Commissioner for Oaths. Prior to re...