The tip of a judicial iceberg

Placed in the context of a steadily deteriorating public perception of the justice system, the Farrugia Sacco case heavily underscores the most basic problems with this unwieldy and at times illogical system.

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

On Monday, the Commission for the Administration of Justice concluded that Judge Lino Farrugia Sacco had acted inappropriately by retaining his position as president of the Malta Olympic Committee, in apparent breach of the judiciary's code of Ethics.

An impeachment motion will now be presented against the judge in parliament; and if the motion enjoys the backing of two-thirds of the House - presumably this will be a mere formality, given that both sides appear to be in agreement - Farrugia Sacco will be made to step down.

But while the controversy surrounding this particular case may soon come to a close, the same issue has also exposed a number of serious shortcomings in the judicial system and beyond. Indeed, the Farrugia Sacco case itself may be regarded as merely the tip of an iceberg: being but one visible manifestation of a much deeper malaise, whereby the entire set-up of the Maltese justice system remains plagued by serious procedural and administrative flaws.

The code of ethics for judges clearly precludes any involvement in any position that may influence a judge in the performance of his or her duties. Farrugia Sacco's role as president of the Malta Olympic Committee was widely regarded as an example of such a position; yet the judge for years resisted calls to relinquish his position on this committee. Not even a direct order from the Chief Justice made him change his mind.

The situation was further complicated by an admittedly messy story, in which Farrugia Sacco, together with the MOC secretary, was approached by undercover journalists from the Sunday Times (UK), who posed as punters trying to obtain black market tickets to the 2014 Sochi Winter Olympics.

The International Olympic Committee ethics commission report had criticised the incident at the time, claiming that Farrugia Sacco had consented to this meeting "when it was apparent that his interlocutors seemed to be looking for ways to circumvent the official mechanism".

To be fair, however, the evidence was inconclusive... and in fact the CAJ stopped short of condemning the judge over this particular incident.

Nonetheless, the same incident also revealed precisely why a judge cannot also occupy this kind of position, as it inevitably exposes him or her to the risk of corruption.

Either way, it remains a fact that Farrugia Sacco is still a judge to this day... even after the CAJ determined that his position is no longer tenable. Not only that, but he is still hearing cases in court... a fact which also makes it painfully apparent to all and sundry that the commission for the Administration of Justice does not actually wield any temporal power at all.

The reality is that judges are apparently free to simply ignore the Commission's recommendations at will. Only if impeached will a judge be forced to step down; and this state of affairs graphically illustrates a conspicuous malfunction at the very heart of the entire judicial system.

There is arguably no other public position in the country which is simply unanswerable to any other authority, except a two-thirds majority in parliament (which for political reasons often proves difficult to achieve in practice). Yet Malta's Constitution does not provide for any other disciplinary measures that can be imposed on a sitting judge. Effectively, a judge is therefore free to indulge even in the most wildly inappropriate behavior imaginable... yet in practice would be able to retain his or her position indefinitely.

Give the serious responsibilities entailed by the position itself, this is clearly an unacceptable situation. And the implications are by no means limited to this isolated case alone.

Recently the entire judicial system has been rocked by a number of scandals, ranging from the very serious indeed (such as the criminal conviction of a former Chief Justice and senior judge on corruption charges) to the unsightly and rather ridiculous (for instance, Magistrate Carol Peralta's over-exuberant Christmastime antics). The sum total of these and other cases have seriously dented the reputation of the law courts as a whole... and it doesn't help that the same law courts have invited further opprobrium by handing down judgments that are often met with incredulity and occasional derision among the public at large.

In recent months there was widespread anger and consternation, when a serial child rapist was sentenced to only three years' imprisonment... in stark contrast to much harsher sentences handed down for other, far more trivial offences. Other issues concern the often unacceptable delays in cases reaching closure... last week's National Bank verdict being a prime example, having taken no less than 37 years to conclude.

Placed in the context of a steadily deteriorating public perception of the justice system, the CAJ ruling in the case of Farrugia Sacco - while admittedly not as serious a matter as some of the other cases mentioned above - nonetheless heavily underscores the most basic problems with this unwieldy and at times illogical system.

More in Editorial