A judiciary under attack

Public opinion should protect the judiciary from executive and partisan media overreach but what has been happening over the past year suggests otherwise.

We’ve seen Labour exponents and hardliners publicly denigrating and assassinating Magistrate Gabriella Vella’s character following her conclusions in the Vitals hospitals concession inquiry.

On more than one occasion, we’ve seen former PN minister Jason Azzopardi directly attacking and making serious allegations against individual members of the judiciary.

We’ve seen a fierce battle that raged in the media between former Judge Giovanni Bonello, taking it vehemently up against the judiciary for failing to protect the ordinary citizen from the corrupt executive might, and lawyers Edward Zammit Lewis and Ramona Attard in defence of our judges and magistrates.

While the public may disapprove of curbing the courts in the abstract, in practice, sections of the public have often supported the Labour government’s attacks against the judiciary. In many democracies where political leaders have challenged the courts, public opinion is rarely a powerful guardrail protecting the judiciary against an executive power grab. Instead, a much more potent safeguard for the courts is societal mobilisation.

Two key dynamics explain why public opinion is usually insufficient protection for the courts. The first is that even when voters value democratic principles like checks and balances, they usually care more about concrete policy issues, such as immigration, crime, or the economy. Most citizens are policy voters first and democracy voters second.

We’ve seen the Labour media leverage popular policies to turn public opinion against the courts, often following a strategy I call court-baiting.

While the rules governing the judiciary are often complex and arcane, changing them can have dramatic effects on the independence of the courts and their ability to hold other branches of government accountable. Reforms might be warranted where judges are self-dealing or out of touch with public preferences. Too often, though, rule changes are nothing more than attacks by the executive on the independence of the courts. The government has limited who, when and how one can initiate magisterial inquiries, effectively truncating the power of the judiciary to carry out inquiries at the behest of ordinary citizens.

An insidious feature of judicial backsliding is that it is undertaken incrementally and can be hard to monitor. We can recall how ministers have occasionally acted improperly by questioning the legitimacy of judgments when they do not get their own way.

It’s time to stop our judiciary from facing unfair and often venomous criticism from both sides of the political aisle, leading to a dive in public confidence in the nation’s court system. Unfair vilification of judges and magistrates is undermining our justice system.

Judges and magistrates are prohibited from commenting on cases pending before them, so they cannot defend themselves. If, as too frequently happens, inaccurate, unfair, and unjustified attacks against our judiciary are left unchallenged, public perception of the integrity and impartiality of the targeted judges and the judiciary as a whole is undermined, and confidence in the judicial system diminishes.

If judges and magistrates can’t speak for themselves, who should speak in their defence and in defence of the judicial system?

If the criticism represents a fair opinion or comment, no response is appropriate. But when criticism is materially inaccurate or misrepresents the legal system or a judge, or when criticism seriously and negatively impacts the community and the administration of justice, a response is needed.

The question is: Who should be delivering that response, when and how.