An irony hard to miss: Robert Abela, his thesis and judicial interference

A Google keyword search about the structures which hold the various organs of State to account brings up a 2002 Maltese LL.D thesis, titled Judicial Accountability And Impeachment. It’s author: one, Robert Abela. 

As its title suggests, the main focus of the erudite and well-researched 214-page publication is, of course, the process of impeachment of a sitting judge and its historical development. But it also makes several prescient references to interference by the legislative and executive branches of government in judicial matters, a matter of relevance to recent events. 

Postgraduate student Abela seemed to take a particular interest in the judiciary being answerable for their actions, in particular to the community, but as a baseline, he is also unequivocal about the importance of an independent judiciary.  

“Judicial independence involves more than protection from the legislative and executive intrusions into judicial decision making. It requires that a judge acts independently of financial, partisan and friendship considerations,” he writes at one point. This is very true, as is another observation he makes about the interplay between the legislative, executive and judicial arms of government, namely that “tensions between the three branches of government will certainly involve, amongst other things, demands for increased judicial accountability.” 

Bonus points to the future prime minister for even acknowledging the role of the press in subjecting court decisions to public comment and criticism in his thesis, advocating “appropriate responsiveness” by the judiciary in furnishing information to the public, saying it is a means of ensuring accountability by the courts, “which are to be seen to operate in a manner that is free from political interference.” 

Abela’s thesis quotes famed American political theorist Henry Kissinger on the topic of separation of powers. “The objective was to avoid despotism, not to achieve harmonious government… those who supported the separation of powers believed that each branch of government, pursuing its own interests, would, in the result, restrain excess,” reads the quote. 

Reading in 2023 Malta, the irony is hard to miss. In every sphere, from planning, to the environment, to the police, to the courts, to structures meant to prevent corruption, it is apparent that the “restraining of excess” objective is hardly being achieved, arguably in no small part due to the lip service paid by Abela’s government, and the Muscat administration before it, to the separation of powers. 

It brings into particular focus the Prime Minister’s latest misstep - his government’s abysmal handling of Jean Paul Sofia’s grieving family’s request for a public inquiry into the rising number of deaths on construction sites and the industry at large. 

The sins committed after that are as many as they are grave. Not only did he and 39 other MPs initially vote to reject the family’s request for a public inquiry, but Abela also crossed a particularly sensitive Rubicon by publicly criticising the inquiring magistrate’s handling of the in genre and writing to the Chief Justice to complain about it. 

To make matters worse, Abela then made statements about the necessity of a public inquiry which are demonstrably untrue, falsely claiming that a public inquiry’s functions would interfere or overlap with the ongoing magisterial inquiry into the incident.  

He then briefly disappeared on his yacht, leaving his MPs to face the wrath of their outraged constituents.  
Seeming to baulk at the public outcry that followed his insensitive handling of the tragedy, Abela then performed an about-turn and ordered that a public inquiry take place - but in the process also raising questions about his esteem for the parliamentary votes of his own MPs, which he effectively ignored. 

But perhaps most harmful of all, certainly to the democratic separation of powers, was not Abela’s sudden change of heart, but his attempt to deflect blame onto the magistrate, who is precluded from replying. 

“Government will no longer be held hostage by the judiciary,” Abela told the press at Castille as he announced that the public inquiry would take place after all. Montesquieu may well still be turning in his grave after that. 
As others have written, independence is not some privilege or perk of office that is selectively enjoyed by individual judges or magistrates. It is, ultimately, the right of the public to have a judiciary that is free from political interference. 

And having written a 214-page thesis dealing with this topic, it should be a subject in which the Prime Minister can discuss with authority, and not introduce the very thing he concluded that the judiciary should be free of - interference. 

Despite being written 20 years ago, Abela’s thesis is great, its premise is correct and it's well researched and written. All of which makes the Prime Minister’s resistance to following his own advice that much harder to swallow.