To judge in one’s own court | Kevin Aquilina

Dean of the Faculty of Laws Prof. KEVIN AQUILINA explores the thin red line separating politics from the judiciary in Malta’s legal system

Faculty of Laws dean Prof. Kevin Aquilina
Faculty of Laws dean Prof. Kevin Aquilina

It’s a pity my generation never had to study Latin at school. Otherwise, I would have known straight away that ‘Nemo iudex in casa sua’ has nothing to do with the titular Clownfish in Pixar’s animated classic ‘Finding Nemo’.

On the contrary, it is a legal term which forms one of the founding principles of justice in any free country. “No man shall be a judge in his own court”. And as I am about to discover, it is also a principle that is routinely flouted in the Maltese scenario.

One person who has complained often (and vocally) about this problem is professor Kevin Aquilina, dean of the faculty of laws at the University of Malta. For some time now, Aquilina’s various press contributions have highlighted specific shortcomings in Malta’s legal and juridical infrastructure. 

Given that these shortcomings range from problems within the Constitution – the cornerstone of Maltese law – to issues such as political interference in the course of justice, it is safe to say that we are talking about the full extent of the country’s entire legal system.

Let’s start with the Constitution. Aquilina is on record stating that this all-important document needs a radical overhaul on a number of counts. In what way does it need to change, and why is this change so important?

“Basically, my opinion is that we have to revise the Constitution: mainly because the constitution was promulgated in 1964, 51 years ago. Now, although over these 51 years we have amended the constitution piecemeal, unfortunately there hasn’t been a holistic revision. More importantly, the revisions that have been done in the past 51 years were done by parliament without the involvement of the citizens. I think the constitution is not just any article of law; it is the fundamental law of the country. So I think that the people should subscribe voluntarily to it. It shouldn’t just be imposed through the will of the members of parliament. The people should have a say…”

What kind of say does he have in mind? The original 1964 Constitution, for instance, was approved by national referendum…

“I think a Constitutional convention should be held, in which members of civil society, local councils, NGOs, and various interest groups would contribute. The result would be a Constitution that is accepted by the vast majority of the people in Malta…”

And yet, this process is supposed to already be underway. There is (or should be) an ongoing forum to discuss the issue under the auspices of the office of the President…

He nods. “What happened was that former President Dr George Abela had convened a number of fora, and in the last two under his presidency he had discussed the constitution.  The Labour Party had also stated that, once in government, it would organise a Constitutional convention: and in fact, if you look at last year’s budget, and even this year’s, there are 50,000 euros voted for this purpose. As far as I am aware, however, no concrete action has been taken to organise this convention… though the budget has been approved, at least of last year. Moreover, I am also aware that the government has appointed a committee, chaired by [former MP] Dr Franco Debono, in order to publicise the context of the Constitution. I think that is part of the strategy that will subsequently lead to the Constitution convention – at least, that is my reading of events.”

If he were to isolate the parts that needed revision most urgently, which would they be?

“Well, it’s not easy to pinpoint just one or two. There are too many. If you look at neutrality, that is an issue unto itself. If you look at the powers of the Presidency… the composition of the constitutional authorities, especially the Broadcasting Authority… should it still be composed of two representatives of the Labour and Nationalist Parties apiece? Or should it be composed of representatives in the public interest? I think there is quite a lot to look at in the Constitution. It’s not a case of simply amending one provision here and there…”

The Constitution, he adds, is more than a collection of fundamental laws. It also circumscribes the identity of the country: its symbols, its values, and its aspirations. And this can be problematic, given that Malta’s ‘national identity’ is not something that was set in stone in 1964. 

“That is why you need to take a holistic point of view. You need to look at the developments which have taken place in Malta over these past 51 years. And you also want to look at the future of Malta: where do we want this country to go? It’s not an exercise that can be done in just two or three meetings. There should be working groups discussing each and every aspect...”

One issue that stands out is repetition. Having been variously amended over the years, some parts of the document have been superseded or unnecessarily added to, without ever being removed.

“With regard to human rights alone, there are two sets of provisions: Chapter 4 deals with fundamental freedoms and human rights; at the same time, there is the European Convention of HR, which is enshrined in Maltese law. I would say the two chapters complement each other. But still, do we need two Constitutional provisions for human rights? What about those areas where the two articles replicate each other? Why have two identical laws on freedom of expression, for instance? Or freedom of association, etc.? I think we should have one set of human rights laws; we don’t need all these human rights instruments spread out across the statute book. The European Convention of HR alone would suffice; and where this Convention is silent, we can introduce other rights that might not be available at European level.”

There may however be practical problems with amending the Constitution on that scale. One curiosity inherent in Maltese law is that the Constitutional Court does not have the power to repeal an illegal law. That is the prerogative of Parliament, which has sometimes allowed laws to stand even after they were declared unconstitutional…

“Yes. If you read the Bonello Commission report (2013), we had made a proposal that once the Constitutional Court declares a law to be unconstitutional, then that judgment would bind, not only the parties to that judgment, but the country as a whole. In other words, the unconstitutional law would be unconstitutional in all cases. Unfortunately, what is happening in our legal system is that if, for example, you challenge a law and are found to be correct.., and then I subsequently challenge the same law… the Constitutional case would have to hear the case afresh, notwithstanding that there has already been a pronouncement by the same court that the law is null, and therefore not applicable in Malta. I think this needs to be seen to. If the Constitution is amended, this is one of the factors that would have to be given due attention.”

Nor is this the only area where the boundary between Parliamentary and judicial jurisdiction remains unclear. One frequent complaint, raised by Aquilina and many others, concerns the appointment of judges and magistrates.

At present, the judiciary is appointed directly by the Cabinet of Ministers. Aquilina makes no secret of his profound disagreement with this model.

“What we suggested in the Bonello Commission was that we depart from the colonial system of having the judiciary appointed by the government. As far as I am aware, we are the only country in Europe to retain this system. For example, in the UK – which is where we took our model of judicial appointments from – they have moved on. Today, the judiciary is appointed by a judicial appointments committee. In other jurisdictions on the continent, such as Italy, Spain, Portugal, etc., they are appointed by a higher council for the judiciary. In that scenario, it is the judiciary that appoints, not the government….

In a country as small as Malta, however, direct analogies might not apply. In Italy, for instance, one has to take a specific course to qualify as a judge; but in a scenario where only a handful of vacancies become available after a number of years, replicating that system would not work in practice.

“The Bonello Commission suggested that the judiciary should be appointed by an independent and autonomous authority, following a call for expressions of interest. The authority would be in a position to receive applications, interview prospective candidates, conduct research on those individuals to check for allegiances… by ‘allegiances’, I don’t mean political, but in the sense of whether they are members of a secret organisation.

Interviews should be held in public, he adds, to ensure transparency and accountability.

“Unfortunately, the present scenario is totally lacking in transparency. It is totally secret. We don’t even know what considerations are taken into account when a person is appointed magistrate or judge. Are there any criteria being followed? Are there any checks being made, regarding business affiliations, social affiliations, and so on? Nothing of this process really takes place in practice…

Aquilina argues we should take note of what is happening everywhere else in Europe. “We should pull our socks up, and move along the European model, which has long ditched the system we use at present. Our judiciary are basically political appointees…”

Speaking of which, it has been noted that governments tend to appoint ‘like-minded’ individuals to the judicial bench. The last wave of magisterial appointments included a former Labour MP and editor of the Labour Party newspaper, Wenzu Mintoff, as well as a former One TV journalist, Joe Mifsud. In this respect, hasn’t the judiciary become an extension of the political tug-of-war between two political parties?

Aquilina however refuses to contemplate the possibility of political infiltration in the judicial machine.

“Of course, when these people become judges and magistrates, they don’t decide cases on the basis of their political opinions. Wenzu Mintoff, for instance: we all know what his political allegiance is; but in the recent case involving the Ombudsman, he ruled against the Labour Party…”

In that particular case, perhaps. But doesn’t the fact that judges are politically appointed also affect public perception? Even if the individual judges are beyond reproach… wouldn’t there always be suspicion of bias, if judges are chosen directly from among the party faithful?

“Well, having read Mintoff’s judgement in the Ombudsman case, I don’t think there is much room for interpretation. It was legally correct. Political considerations did not come into it at all. But this has been happening for years. A number of judges and magistrates were involved with politics before being appointed to the bench. Magistrate Joe Cassar, for instance, was a parliamentary secretary in the Nationalist government. Magistrate Albert Borg Olivier de Puget was a Nationalist MP for I don’t know how many years. Twenty or more. On the other side, there was Magistrate Philip Sciberras, again he was a Labour MP…

Does he not see any problem in those appointments, either?

“I don’t see a problem with it myself, no, because normally, when people are appointed magistrates, they forget their political affiliation. They decide cases in terms of the oath of allegiance which they took to the Constitution: namely, to be impartial and independent when deciding cases.”

Coming back to the Bonello Commission’s proposals: would political involvement be among the criteria looked into by the ‘autonomous authority’ when appointing magistrates.

“Yes. That would be one of the factors that would be looked at. But it does not necessarily mean that candidates with known political allegiance would be automatically excluded from the contest. You might be involved in politics, but you might still be an excellent lawyer who would fit the job description. What is important, however, is that if you are appointed a judge or magistrate, your political involvement would have to end…”

This indirectly raises another issue: the removal of judges… which in the Maltese set-up has always proven to be particularly problematic, for much the same reason as their appointment. Only Parliament has the power to remove a sitting judge… though it needs a two-thirds majority in the House.

The issue rose dramatically to the fore in the recent case of Judge Lino Farrugia Sacco: who resisted resignation calls over allegations of improper conduct as president of the Malta Olympic Committee. Farrugia Sacco also survived a number of attempts at impeachment, only to eventually retire. 

In a sense, Aquilina surprised many by writing a press article criticising the impeachment attempts. While not exactly defending Farrugia Sacco’s activities, Aquilina nonetheless attacked the legal basis on which he might otherwise have been impeached.

What was it about the process leading to impeachment that bothered the dean of the faculty of laws so much?

Aquilina replies by referring to another case, Demicoli versus Malta, decided by the European Court of Human Rights. “There were quite a number of other judgements I also quoted in that article, too. But this one illustrates the issue well.” 

Demicoli was the editor of a satirical newspaper, Mhux Fl-Interess tal-Poplu. He published a cartoon which caused offence to two members of parliament, who then hauled him up before the House of Representatives over ‘breach of privilege’.

“The EHCR ruled that the House of Representatives could not guarantee a fair and impartial treatment of Demicoli. Why? Because the ‘victims’ in this case were the two MPs; these two MPs were prosecutors, who tried him in the House; they were jurors, who found him guilty; and they were also judges, who fined him. So essentially, there was a confusion of roles. It was a conflict of interest par excellence, I would say…”

The same principle applies also to Farrugia Sacco. “The House of Representatives is not a judicial body. It is a political forum. The two roles should not be confused.”

And yet, the Demicoli case does not seem to follow the same pattern as Farrugia Sacco’s. In the latter case, there was the question of alleged involvement in the underground sale of Olympics tickets. MPs didn’t really come into it at all…

Aquilina disagrees. “If you look at the statements in the newspapers, you had a number of MPs – including the Opposition leader – making pressure so that the case would be brought before the House. And they were criticising the behaviour of Farrugia Sacco. Now, if you were to translate that into a court scenario: you cannot have the Chief Justice commenting in newspapers against a person who is going to appear before him, and whose case he will have to decide. Undoubtedly, you and I would both claim that the Chief Justice is prejudiced in that scenario. The same thing happened in this case…”

The problem, he insists, concerns the procedure… and as such is unrelated to the specifics of this particular case.

“This is not about Farrugia Sacco, what he did or did not do. Even if you take the Anton Depasquale proceedings, for example. There may have been a free vote given [in the impeachment motion], but ultimately the decision was taken on purely political grounds. It was not taken on legal or disciplinary grounds. Naturally I understand this, because that is Parliament. Parliament is political. But then, I cannot expect Parliament to provide the setting for a fair trial: be it in the case of Demicoli, Depasquale, Farrugia Sacco or anyone else. That is the problem with Parliament. It can never give a fair trial…”