Critics punch holes in Bonnici’s justice reform bill

A proposal by the government to have a judicial appointments commission under which lawyers would be papabili for the bench has already been met with opprobrium from the opposition, which claims the bill gives the Prime Minister leeway to appoint his own choices.

The new system, proposed in the aftermath of the sharp criticism of the government for dragging its feet on recommendations by the Bonello commission, would appoint judges and magistrates on recommendations of a judicial appointments commission.

That commission would receive expressions of interest from lawyers seeking a magistrate’s position, to then pass on the most suitable candidates to the minister for justice for him to appoint. The system would end decades of judges and magistrates being nominated by the executive, something that reached fever pitch when Labour was accused of promoting red togas to the bench.

But Owen Bonnici’s counterpart on the opposition benches, Jason Azzopardi, has come back with a livid reply at the proposals. “I’m dumbfounded at the deceit and barefaced con shown by the government between what it promised to change compared to what we find in the bill. The Bonello Commission recommendations on this score are truly dead and buried,” Azzopardi said.

According to the Nationalist MP, the Prime Minister is still being given the power to nominate any lawyer for the judicial appointments commission’s review, even if a lawyer would not have applied to the commission.

“The Prime Minister is being empowered to nominate to the judiciary a lawyer whose nomination would have been shot down by the Commission,” Azzopardi claims. “No one would know that the PM would be nominating someone who was not nominated by the Commission since the Commission will be bound by confidentiality.”

Azzopardi is correct on the confidentiality of the procedures, an aspect of the proposed commission that is expected to protect those lawyers who do not make the grade for magistrate when they return to their private practice.

When the commission selects its preferred candidates, it will be up to the government to choose its nomination for magistrate. On this point, Bonnici claims he is balancing out the commission’s powers with that of the executive, apart from taking on the Bonello Commission’s actual recommendation, which even gives leeway to the government to refuse its recommendation as long as it justifies it.

But Azzopardi insists the commission will be used as “a smokescreen to add a veneer of legitimacy to the government’s own nominations”, which unlike his own private member’s bill does not make it obligatory for the Prime Minister to nominate the lawyer who would have been recommended by the Commission.

Azzopardi is correct that the government grants the proposed commission leeway on the criteria by which it will choose magistrates; his own private member’s bill, shot down by the Attorney General for being a money bill that requires Cabinet clearance, included 10 criteria for assessing prospective magistrates. In that it echoed the Bonello Commission’s proposal to increase qualitative criteria such as “integrity, knowledge of the law, honesty, justness, diligence, practice of the profession in courts and the absence of commercial activity in business”.

One other critic of parts of Bonnici’s bill comes from the Commissioner for Laws, Franco Debono.

Before 2013, the former Nationalist MP was a rebel backbencher who made justice reform his bone of contention, finally voting in a no confidence motion in 2011 against his own party’s home affairs and justice minister, Carm Mifsud Bonnici. His private members’ motion of that same year is largely reflected in the Bonello commission’s report, apart from having put pressure on the government to introduce the right to legal assistance for arrested persons and the split between the justice and home affairs portfolios.

A compilation of his motions and speeches have been collected in the as-yet-unpublished ‘The Birth of the Justice Reform’ – critics might sneer, but however indelicate his method of reminding the public, Debono maintains that at least 293 of the measures proposed by the Bonello Commission can trace their roots back to his work in Parliament. The opus, a painstakingly footnoted compendium of his suggestions, could be a handy reference work for the general public and the legal profession.

Debono has proposed that some form of parliamentary grilling of prospective judicial candidates could take place in order to further strengthen the new procedure. But he strongly disagrees with the Bill’s introduction of disciplinary measures with respect to the judiciary – by a new sub-committee that would handle judges’ and magistrates’ misdemeanours.

“As I said in parliament in 2012, when explaining in detail my private members’ motion, if the right judicial appointment mechanisms are in place then one would have little need for disciplinary procedures if at all, considering the small number of judges and magistrates in this country, currently less than 50.”

“The fact that such proceedings would be held behind closed doors does not protect the judicature from a loss of moral authority. On paper it looks nice, but when it comes to enforcing sanctions... if word gets out that magistrate ‘X’ was punished, this would undermine the respect and credibility of the judiciary. Either one is fit to carry out his duties as judge or magistrate, or the current disciplinary setup should suffice to get him back on track, but otherwise, in case of proved misbehaviour of a grave nature, then it should be impeachment. Otherwise one would only end up undermining the moral authority of the judiciary without acting as an effective deterrent. As I said if one has the right appointment mechanism in place, the need for discipline would be minimal if at all.”

Franco Debono, still plans on being an outsider on the unfolding landscape of justice reform, taking a pot shot at the justice minister for not seeking greater consensus with the opposition on its private member’s bill. Criticism to the Bill have been forthcoming from other quarters too.

Debono added that, as happens in other fora, some form of grilling of candidates ought to be introduced in order to further refine the selection of candidates. 

But he strongly disagrees with the Bill’s introduction of disciplinary measures with respect to the judiciary – by a new sub-committee that would handle judges’ and magistrates’ misdemeanours.

“Appoint the judiciary with care and there would be no need to enforce discipline,” Debono argued, even though that does not take human fallibility into account.

“The fact that such proceedings would be held behind closed doors does not protect the judicature from a loss of moral authority. On paper it looks nice, but when it comes to enforcing sanctions... if word gets out that magistrate ‘X’ was punished, this would undermine the respect and credibility of the judiciary. If a judge requires disciplinary proceedings, he should be impeached, not fined.”

Franco Debono, never one to take matters lying down, still plans on being an outsider on the unfolding landscape of justice reform, taking a pot shot at the justice minister for not seeking greater consensus with the opposition on its private member’s bill.

“Is it good faith or is it institutional incest,” Jason Azzopardi continues, “when a supposedly autonomous parliament seeks advice from the same Attorney General whose duty according to law is to represent solely the interests of the government which are in conflict with those of the opposition whose bill is the subject matter of the advice sought?”

Even here it seems that Debono and his former party are in agreement, having more than once pointed out the anomaly of having an Attorney General wearing more than one hat, as counsel to government and public prosecutor.