The rot sets in at the top

Clearly, the time has come to reform the entire system, if needs be from scratch… starting with the role of the Commission for the Administration of Justice, which has to date left much to be desired.

There is a Maltese expression in daily usage that translates roughly as "the rotten fish stinks most from its head".

Normally this is taken to mean that when corruption or rot sets in at any given institution, it will percolate downwards from the very highest level of authority. To be fair, however, this is not always the case - indeed there are often instances where corruption sets in at lower levels but not at higher ones.

But it is nevertheless true that once corruption does get a foothold, the entire institution or department will be besmirched; and as a result the stink of rot will be perceived to emanate from the top regardless.

It is for this reason alone that those who occupy the uppermost levels of authority in any institution must be constantly on their guard to ward off such negative perceptions. And when the institution in questions happens to be the law courts, it is imperative that the people at the top act with alacrity and determination to dispel any hint of disrepute.

This is also why the ongoing scandal involving a senior judge accused of corruption demanded a strong response from the institution that is tasked with safeguarding the machinery of justice in our country.

Regrettably, however, the official response by the Commission for the Administration of Justice - whose members include the Chief Justice, the Attorney General, the chair of the Chamber of Advocates and (for reasons which remain unclear) the President of the Republic - was disappointing.

According to this Commission, the first loyalty of any individual judge should be to the Judiciary itself. Given that (in popular parlance) the word 'judiciary' is nearly always understood to mean the judges' bench; this was a rather unfortunate choice of words.

Having said that, the 'judiciary' is not merely the sum total of a country's judges; it also refers to the judicial arm of the State, and as such extends to include the justice system as a whole.

But even if applied to this broader definition, the comment by the Commission for the Administration of Justice remains intrinsically flawed. It is simply not true to state that a judge's loyalty should be towards the justice system... any more than a doctor's first loyalty should be to the country's medical infrastructure, or a policeman's first loyalty should be towards the Police Force.

And yet a cursory glance at the oath taken by a judge upon appointment will confirm where his or her first loyalty should really lie: with "the people and the Republic of Malta and its Constitution".

Implicit in all three is the underlying principle of justice, which is demanded by the people, upheld by the Republic and circumscribed by the Constitution.

Yet by supplanting all that with 'the judiciary', the Commission may have inadvertently underscored the widespread perception of a quasi-masonic camaraderie between members of the judiciary itself.

It is already bad enough that a practising magistrate was a freemason, but for the Commission for the Administration of Justice to fuel this perception by insinuating that judges should be loyal to each other first and foremost was unfortunate, to say the least.

But there is another flaw in the Commission's reasoning. However one interprets the word 'judiciary' it remains fundamentally a means to an end: i.e., a system which is geared towards meting out justice, but which (being an ultimately man-made entity) is also inherently imperfect.

And like all man-made systems, the judiciary is itself subject to revision, reappraisal and change.

Yet if the Commission's verdict is to be taken literally, individual judges would be expected to defend the system in its current form - and not the principles this system is intended to safeguard - and would therefore be duty-bound to oppose any amendments to the laws governing the judiciary.

This highlights another problem with the official response to the crisis: we all know that the present system does need to be changed... and yet, despite a precedent which had already stunned the country only a few years ago (i.e., the case against former Chief Justice Noel Arrigo and Judge Patrick Vella), the recommended changes were never effected.

Even after Malta was rapped by the Council of Europe's anti-fraud agency for the leniency of its penalties for trading in influence, the stipulated penalties remain unchanged to this day. And given the unthinkable consequences of allowing public trust in the judiciary to simply evaporate, one can only wonder why such a serious warning went unheeded.

From this perspective, the official response to this latest credibility crisis also illustrates how we came to this pass in the first place. If even the uppermost authorities within the judiciary are unsure of their own role within the country's legal jurisprudence, the question to ask is not so much how the law courts have succeeded in bringing themselves into such disrepute. It is how they have even managed to function at all in recent years.

Clearly, the time has come to reform the entire system, if needs be from scratch... starting with the role of the Commission for the Administration of Justice, which has to date left much to be desired.