Justice is not a game

With the justice minister enjoying almost plenipotentiary powers to appoint magistrates without explanation and or transparency, it is hard to resist the suspicion that both parties tend to wield this power to tilt the judicial balance, as it were, in their favour.

Cartoon by Mark Scicluna
Cartoon by Mark Scicluna

The recent appointment of two former Labour Party officials to the magistrates’ bench has understandably raised eyebrows

Justice Minister Owen Bonnici’s choice fell on Monica Vella  – a former Labour Party mayor who held office for 11 years – and Joe Mifsud, a former One TV journalist and erstwhile PL international secretary. 

To be fair to the two individuals concerned, newly-appointed magistrates from political party backgrounds are not unknown to rise to the occasion, and to set aside any former potential bias in the fulfilment of their duties to the state. There is no reason to believe a priori that this will not be the case here as well.

Both also have some experience that qualify them for the role: Mifsud has served as a court expert since 2007, and both he and Vella have served as justice commissioners in a Local Tribunal.

But these appointments are in themselves problematic, before even considering the qualities or qualifications of the chosen candidates. At present, the Constitution empowers the Cabinet of Ministers to appoint judges and magistrates entirely of its own accord, without any system of checks and balances to ensure a transparent and reasoned selection process.

This issue has often been highlighted before, and was part (albeit a small part) of the compendium of procedural anomalies facing the law courts, that led to the establishment of a Commission for the Holistic Reform of the Justice System last year.

This commission is headed by former European Court of Human Rights judge Giovanni Bonello; and in December 2013 presented two reports containing over 450 proposals. Among its conclusions was a specific complaint about the lack of transparency in the selection process, and the absence of any fixed criteria to determine who is the person most fit for the post.

The Bonello Commission further proposed the creation of a specialised authority to oversee the selection process for judges and magistrates; while the government, in so far as is possible, acts according to the advice of that Authority when taking the final decision.

Other suggestions included a thorough reform of the public prosecution office, the legal aid system, and a revision of the Commission for the Administration of Justice “which along the years has shown us both its weaknesses and strengths”.

When accepting the report, Minister Bonnici indicated that he would work expeditiously to implement those recommendations for which there was consensus. The specific changes concerning the appointment of the judiciary would require a Constitutional amendment; and both sides of the House are officially in agreement on the spirit of the reform… if not necessarily on the specifics.

One can therefore understand that implementing this reform may take time: but the reform does not need to be implemented in full for the present government to take on board its recommendations anyway. 

Yet when it came to appointing new magistrates, Bonnici entirely disregarded the commission’s findings… even though he himself had earlier expressed agreement with them. Even without this detail, the Labour administration was elected specifically on the promise of meritocracy and full transparency with explicit regard to public appointments. This anomaly must therefore also be viewed in the context of a string of similar cases where the government apparently ignored its own electoral commitments.

Worst of all, this state of affairs may have undesirable effects on the credibility of the judicial system itself, which has already suffered on account of corruption scandals and a series of questionable judicial decisions.

Following the recent appointment as judge of yet another former party official, Wenzu Mintoff, Bonnici’s decision to pursue this trend strongly reinforces a popular perception that the judiciary is still viewed as a component of Malta’s ongoing political impasse. 

And in recent years the law courts have frequently been utilised as an extension of the political battlefield: for instance, when parties or individual MPs resort to libel as a knee-jerk response to political accusations; or when politicians demand magisterial inquiries into the actions of other politicians. 

Moreover, with the Justice Minister of any government enjoying almost plenipotentiary powers to appoint magistrates without explanation and or transparency, it is hard to resist the suspicion that both parties tend to wield this power to tilt the judicial balance, as it were, in their favour.

One is therefore inclined to agree with the Chamber of Advocates, when it observed that “it is the implementation of those recommendations…which sets the benchmark against which the government’s commitment to reform the justice system will be measured, and not the articulation of words of support.” 

The Chamber added that: “When the opportunity to implement recommendations, for which the government has expressed support, presents itself and is foregone, the level and intensity of the political will and commitment to carry out the reform is, with reason, questioned.”

It also warned that such blatant disregard for the reform is bound to have negative consequences on public perceptions of how justice is meted out in this country:  “Inadequate regard to important institutional recommendations, aimed at enhancing credibility in the judicial system, continues to undermine public confidence in the current judicial system.”

The Chamber of Advocates is right to sound this warning. Bonnici would be wise to heed it.

More in Editorial