Will the magistrate’s peers step up to the plate?

Mr Justice Lawrence Mintoff did not mince his words in what is ostensibly the first dressing down a judge has ever given a magistrate for “irresponsible behaviour”.

Mintoff was presiding over the Court of Appeal and the case in front of him could not proceed because the case file was not available. The case file had previously been in possession of Magistrate Monica Vella, who presided over the particular case in the first instance.

But what should have been a normal transfer of files within the same court building could not happen because the magistrate had taken the case files home. Testifying in front of the judge, Vella’s deputy registrar remarked that the magistrate “is looking for the files”.

This prompted Mintoff to issue a communique in which he reprimanded the magistrate’s behaviour, which had caused unnecessary delay to proceedings and inconvenience to all parties. He ordered the communique be sent to the Justice Minister, the Chief Justice and the Court Registrar.

A communique coming from a judge is not something to be taken lightly. Indeed, the word ‘communique’ does not even begin to describe the anger and severity of such a communication.

The magistrate’s behaviour was not only irresponsible – this raises the question as to whether the files kept at home are in a secure location with controlled access, an issue for another time – but disrespectful to all parties.

The magistrate’s behaviour not only disrespected the court, its officers, the lawyers and the individuals involved, who could not see justice meted out in a timely manner, but also the rest of society that deserves to have a judicial system that works well and efficiently.

We wonder whether this was the first case of its kind but even if it was, the matter should be referred for disciplinary action to the Commission for the Administration of Justice.

It is obvious that Vella or any other member of the judiciary cannot be removed or disciplined on a whim or because someone decides they are wrong. Security of tenure afforded to the judiciary by the Constitution is precisely there to guard against retaliatory actions of those in power who may be displeased with the decisions members of the judiciary take.

But security of tenure was never intended to shield the judiciary from public criticism or worse to excuse inefficiency, incompetence or wrongdoing.

Constitutional changes in 2020 removed parliament’s power to impeach members of the judiciary and this was delegated to the Commission for the Administration of Justice, which in turn delegates disciplinary proceedings to a committee of peers.

On a positive note, the changes created different disciplinary options depending on the severity of the wrongdoing thus moving away from the stark binary option of ‘no disciplinary action’ or ‘ultimate censure through removal’ as was the case before.

But the constitutional changes also removed the power of any MP to instigate a motion of removal and now it is only the Chief Justice and the Justice Minister who can initiate disciplinary/removal proceedings within the CAJ.

Reflecting on these changes in a 2021 opinion piece, former European Commissioner Tonio Borg had raised concerns at what he described the ‘slavish obedience’ to a recommendation by the Venice Commission that called for the removal of the legislative body from decisions to remove judges and magistrates.

Borg had raised pertinent legal points that merit further discussion on the chosen legal framework to remove or discipline judges and magistrates, which he describes as flawed.

But beyond the ramifications of those constitutional changes we should expect that Magistrate Vella, like all members of the judiciary, not to be above public scrutiny. In this case, her actions have received harsh criticism by a fellow colleague on the Bench.

A colleague, who understands the deep injustice of having people turn up in court only to be told their case cannot be heard because of all things, the case file is unavailable because the magistrate of first instance has kept it at her private residence.

This is not Vella’s first run-in with impropriety. In 2021, she had been removed from the Gozo courts and transferred to the courthouse in Malta by the Chief Justice, ostensibly because of an inquiry she led into an accident that dragged on for three years leading to several charges being time-barred.

The magistrate has a reputation of inertia among colleagues in the legal profession and the unwitting victims of this are the people who have to appear in front of her.

The last time this leader wrote about the actions of the judiciary was a few weeks ago when press photographers and videographers were barred from covering the Chief Justice’s speech at the opening of the Judicial Year.

The Chief Justice had subsequently apologised – a very rare but welcome apology from someone in the judiciary – calling the incident a misunderstanding.

But this leader had remarked on the ease by which the media and journalists could be dismissed because there is little appreciation for the work we do.

Once again, we reiterate our stand that the actions of members of the judiciary are not beyond reproach and just as it is our duty towards readers to serve as a watchdog on the powers that be, so is it our duty to call out bad behaviour by members of the judiciary when we see it.

We only hope that Magistrate Vella’s peers, like Mr Justice Mintoff, will also call out her bad behaviour through meaningful disciplinary action.