The inappropriateness of parliament as a judicial body

When the House of Representatives is called upon, in those infrequent cases, to remove a member of the judiciary from office, the House acts as a quasi-judicial body. But is the House equipped to deal with such removal motions in full respect of the right to a fair trial?

As things stand today the answer is in the negative for the following reasons. First, the House is a political not a judicial body. Second, Members of Parliament cannot be considered to be independent and impartial unless they are given a free vote. If they are subject to the whip's direction or if they have discussed the removal motion during a parliamentary group meeting where they would have decided prior to the actual discussion in parliament that they will vote in favour of or against removal, Members of Parliament lose their independence and impartiality and have to vote according to the direction given to them by the whip. Independence and impartiality are an essential ingredient of the right to a fair trial.

Third, there has to be one Member of Parliament who has to introduce a motion for judicial removal. That MP has to draw up the charge against the judge or magistrate in question. In reality he is acting as a prosecutor when he files his motion containing the charge against the judge or magistrate and, therefore, cannot be impartial. But what if it is the Prime Minister who has moved the motion, will he not influence his Parliamentary group? Fourth, if a MP expresses himself on the merits of the charge before the motion is discussed, such MP would be tainted with bias.

Fifth, there is no rule to the effect that the mover of the removal motion, and an MP who has expressed himself in favour or against the judge or magistrate to be removed from office cannot participate in the House's deliberations and voting on the judicial removal motion notwithstanding his bias. Sixth, the right to a fair trial is composed of several ingredients. One of these ingredients is that no person can be a judge in his own case. So if the judge or magistrate happens to be a relative of an MP, there is no rule to the effect that such an MP is debarred from participating in the debate and vote on the removal motion.

Seventh, the right to a fair trial requires equality of arms, the right to present one's case, the right to counter-examine the witnesses adduced by the motion's mover, the right to access the documentation compiled by the Commission for the Administration of Justice which contains the evidence against him and to see the minutes registered by the Commission's Secretary when the Commission investigated the case. All these individual components of the right to a fair trial are not regulated or afforded to the accused judge or magistrate before the House.

Eighth, the principle of proportionality dictates that the punishment to be meted out to the misbehaving judge or magistrate has to be proportionate to the harm caused by the misbehaviour. Our Constitution does not define the degrees of judicial misbehaviour needed for removal from office. There is no doubt that there are cases of gross misbehaviour which, if proved, should bring about removal. But there are also minor cases of judicial misbehaviour, which should never give rise to removal but to a fine, reprimand or a punishment of similar nature. The House is not equipped to grant a right to a fair trial in such cases unless the law is changed to ensure that the right to a fair trial is respected throughout the whole process of the removal procedure before the House, including before the House Business Committee. Ninth, other difficulties arise as to the procedure to be followed by the House when hearing the removal motion. For instance, will the removal motion be read out to the accused so that he can plead guilty or innocent? If such a motion were to be read out, who should read it out? The motion's mover, the Speaker of the House or the Clerk of the House?

Irrespective of whoever reads out the motion - although in the House once a motion is presented it is not customary to read the text of such motion - will the judge or magistrate be asked at that stage to plead innocent or guilty? And if he pleads innocent, who will adduce evidence against the judge or magistrate? Will it be the motion's mover, the Speaker or the Clerk of the House? The Clerk should not be involved in such matters as he is not a prosecutor whilst the Speaker should act as an impartial arbiter ensuring that the accused is granted a fair hearing.

This leaves the prosecutorial function vested in the motion's mover, unless it is decided that it should be a Commission member who should appear before the House to act as prosecutor. In this way, the House would not be acting as judge, jury and prosecutor even though the dilemma would still subsist with regard to the motion's mover who has issued the charge and those MPs who might have spoken publicly in favour or against the charge before the motion is discussed. All these issues need to be addressed to ensure that the accused judge or magistrate is given a fair trial. Otherwise, the matter would be decided along purely partisan lines and that is surely not conducive to a just process. Justice must not only be done but must be seen to be done.

In this case, unless all the above queries are sorted out in the interests of justice by providing the judge or magistrate a fair trial, then the end result would be an injustice upon the judge and magistrate, which is the last thing that the House should resort to. Judicial removal is a very serious thing and it should therefore be addressed with the due serenity that it deserves. Otherwise the House of Representatives would make a mockery out of the whole process, put itself in disrepute and allow a court to eventually declare null and void a tainted vote and decision of the House of Representatives.

The House of Representatives (Immunities and Privileges) Act provides that in the case of offences against the House, including contempt of the House, it should not be the House but a judicial body which should try contempt. This is of course a product of the Demicoli v. Malta case decided by the European Court of Human Rights on 27/8/1991, application no. 13057/87. There is no doubt that a court is more appropriate than the House of Representatives to decide upon contempt of the House. However, whilst following the Demicoli case the House of Representatives (Immunities and Privileges) Act was changed to ensure for due process of law, the same cannot be said for judicial removal, which is by far a more complex procedure than contempt of the House. The House should change the procedure of judicial removal by assigning such task to a Judicial Services Disciplinary Authority which would have the necessary constitutional guarantees and protections to provide the accused judge or magistrate with a right to a fair trial with a possibility of an appeal to a reformed Commission for the Administration of Justice.

Again, if one were to compare the procedure between that adopted by the Commission for the Administration of Justice on the one hand and the House Business Committee and the House on the other hand, the law mandates that an investigation for judicial misbehaviour has to be held in private whilst the procedure before the House Business Committee and the House itself are held in public. This means that the Commission does not act in a transparent and open manner. Further, whilst MPs vote publicly in favour or against the motion to abstain and so are identified as to how they voted, there is no possibility envisaged by law for Commission members to express a dissenting opinion from the majority opinion and, in this way, the general public would not know whether there were any dissenting members who disagreed with the Commission's prima facie appraisal of guilt.

In addition, the Standing Orders of the House of Representatives are completely silent as to the procedure the House should adopt when discussing and voting upon a judicial removal motion. Moreover, if the Commission has already drawn the attention of a judge or magistrate on any matter, which is not conducive to an efficient and proper functioning of the court over which they preside, or to any conduct which could affect the trust conferred by their appointment or to any failure on their part to abide by the code of ethics, does that not amount to an appraisal of guilt and therefore should debar Commission members from hearing any further misbehaviour proceedings with regard to that judge and magistrate and the President of Malta should act to have such members replaced? Furthermore, the Commission of the Administration of Justice Act does not authorise the Commission to hear witnesses on oath. This is not the case with the House which is so authorised by the House of Representatives (Privileges and Powers) Ordinance. One hopes that the House, through appropriate law reform, adequately addresses all these constitutional hurdles.

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