Farrugia Sacco – injustice in the making?

When Dr Anglu Farrugia, Speaker of the House of Representatives, ruled that the motion to remove Farrugia Sacco from office presented by ex-Prime Minister Dr Lawrence Gonzi was no longer valid and that the Government had tabled a new motion for Farrugia Sacco's removal, the Commission for the Administration of Justice, on receipt of the fresh removal motion from the Speaker, had to provide the House with a fresh report.

One option would have been for the Commission to reconfirm its previous report and re-submit to the House, the option that it eventually went for. A second option was to re-hear the case as the Speaker had specifically requested. A third option was to allow time for the Judge to make submissions on the Commission's first report and for the Commission to resubmit a revised report to the House. All these courses of action were possible but the Commission chose that option which ended up breaching Farrugia Sacco's right to a fair trial.

The answer to the above points lies in the Constitution and in the Commission for the Administration of Justice Act. The former, in article 101A(4)(b), provides that 'a member of the Commission may abstain or be challenged in the same circumstances as a judge of the superior courts'. This means that all the members of the Commission who were originally hearing the case of Mr Justice Farrugia Sacco had to be changed because they had already made an appraisal of guilt, even if prima facie, against the Judge.

In terms of article 101A(5)(b), 'where a member of the Commission has been challenged or has abstained, the President acting in accordance with his own deliberate judgment shall appoint as a substitute member to sit on the Commission, a person who in his opinion has as far as may be the same qualities and qualifications as the member substituted.' Hence, the first step that the Commission should have taken was to request the President of Malta to appoint substitute members to replace those who had already heard the case and expressed a prima facie finding of misbehaviour.

Farrugia Sacco had already gone through this procedure when he unsuccessfully challenged before the Commission and the courts two members of the Commission. Now he was denied the possibility of challenging all Commission members who did not abstain and who had already expressed themselves in favour of his misbehaviour. Such Commission members were tainted with bias and could not afford him a fair trial. He had in his favour the European Court of Human Rights decision in Olujić v. Croatia (5 February 2009, application no. 22330/05), where it was held that the right to a fair trial applies also to disciplinary proceedings instituted against a judge. But the Commission denied this right to him.

In Olujić, the European Court of Human Rights also found that there was a breach of the right to a fair trial because the disciplinary proceedings were held in camera not in public, as is the situation with article 9(7) of the Commission for the Administration of Justice Act which states that: 'Proceedings by the Commission under this article shall be held in camera'. If Farrugia Sacco had been given the chance in the second set of proceedings before the Commission to make a request for his case to be held in public, the Commission would have had to accede to such a request on the basis of the Olujić judgment. But he was not even given the opportunity to make such a request once the Commission acted in his absence.

Substitute members had therefore to be appointed to comply with article 9(4) of the Commission for the Administration Act, which requires the Commission to 'carry out the necessary investigations and make a report thereon to the Speaker.' The Commission could not have relied on its first report and re-propose it afresh to the Speaker. That report was passé like Gonzi's removal motion was a dead letter and had been relegated to history by Speaker Farrugia's ruling. This interpretation is strengthened by what the Commission for the Administration of Justice Act provides in article 9(7): 'The member of the House presenting the motion and the judge or magistrate whose conduct is being investigated shall have a right to be present during the whole process, to produce witnesses in support of the charges set in the motion or in defence, and to be assisted by any advocate or legal procurator.'

Judge Farrugia Sacco was entitled to a fair hearing and the Commission could not, as it did, simply adopt the previous report without going through the motions set out in article 9 of the Commission for the Administration of Justice Act as the Speaker had, after all, required it to. In fact, the Commission ignored the Speaker's correct direction thereby placing itself above the House of Representatives. The Commission had to investigate, hear the witnesses in favour and against the motion and to report to the Speaker. The Commission should have refrained from acting as Judge, Jury and Prosecutor for even if one is dealing with disciplinary proceedings not a criminal charge, the Judge still enjoyed, in terms of the Constitution and Olujić, a right to a fair hearing.

Whilst the Commission correctly gave the Judge a fair hearing prior to drawing up its first report, this was not the case when it reconfirmed its first report without a hearing. This amounted to a travesty and gross miscarriage of justice and a flagrant breach of human rights. In the second set of proceedings, the Judge should have been afforded all the facilities needed for him to present his case before the Commission drew up its report. Judge Farrugia Sacco has three rights during these proceedings, all of which were breached: (a) to be present during the whole process, that is, the Commission should have never discussed his case in his absence, nor could it have taken any measures without his knowledge except when deliberating; (b) to produce witnesses in defence of the charges set in motion against him; and (c) to be assisted by an advocate or legal procurator.

But the House Business Committee has decided to accept the second Commission's finding of misbehaviour, notwithstanding the fact that the Speaker has requested a second fresh report. This Committee did not even investigate, let alone consider, Farrugia Sacco's letter to the Speaker complaining at the breach of his fundamental human right. The Committee simply ignored this procedural deficiency, leaving it to the Judge to take up the matter before the courts of constitutional jurisdiction if he deemed so. Again, the Olujić judgment applies also to the House Business Committee.

The Committee's decision to proceed notwithstanding a tainted Commission report shows the inappropriateness of the House of Representatives at guaranteeing the rights of an accused member of the judiciary before it. The Committee did not even feel it necessary to make enquiries why the Commission had decided to ignore Farrugia Sacco's right to a fair trial and the Speaker's request for a fresh report or why the Commission's reply failed to give reasons for the Commission's stand. After all, if the House goes on to remove the Judge at a later stage and a Court eventually finds that the House should not have considered the second Commission's report as it was not drawn up in terms of law, notwithstanding the fact that the Speaker brought this point to the attention of the Commission but was totally ignored, then the whole removal process can end up declared null and void. So it was in the interest of the House to ensure that the second Commission's report was valid at law.

The next step is to appoint the removal motion for hearing once the procedure to be followed is approved by the House Business Committee. Even here this procedure is not bereft of human rights hurdles. It has to decided, before going on to discuss the removal motion, whether the breach of the Code of Ethics of the Judiciary allegedly committed by Farrugia Sacco deserves to be punished, if he is eventually found guilty as charged of judicial misbehaviour, by removal. The principle of proportionality, so dear to the European Court of Human Rights, has to be applied even here. The House of Representatives is legally obliged to give Farrugia Sacco a fair trial in terms of the Olujić case and, on a moral level, such requirement is more forceful once the Commission failed to give the Judge a fair trial itself before re-confirming its first report.

Applying proportionality to Farrugia Sacco indicates that judicial removal appears to be too harsh a sanction to mete out and that a warning, fine or a combination of both or some other punishment might be more appropriate and proportional. But then the law does not contemplate such punishments and the House has only one weapon in its armoury - judicial removal. If the House Business Committee decides that the sanction is disproportional, then it should refer the matter to the House of Representatives. If the latter agrees, then the House cannot proceed further.

Prof. Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta