An indictment of the Maltese government

On 22 October, 2024, a judgment was delivered by the European Court of Human Rights finding Malta in serious breaches of human rights provisions and of not conforming to fundamental precepts of a fair hearing. 

The judges in the European Court unanimously held that there had been a multitude of violations of the rights enshrined in both the European Convention of Human Rights and national legislation. 

This might have passed as another run-of-the-mill judgment by the court - finding the state guilty of violating some fundamental human right and ordering the payment of consequential liquidated damages. Yet, it should not, as this judgment, five pages long, constitutes a damning telling off to our government. 

Briefly and factually, six minor Bangladeshi nationals who arrived in Malta in 2022 after being rescued at sea were held in detention for six months. Throughout that time, they were subjected to inhuman or degrading treatment, were deprived of their right to liberty and security, deprived of their right to have the lawfulness of detention decided speedily by a court, were not afforded an effective remedy, and had a flawed hearing in front of the Immigration Appeals Tribunal. 

It is this last point that should attract more attention and consideration. The court clearly and unanimously concluded that the tribunal did not conform to the requirements of independence and impartiality. 

The tribunal's review of the immigrants' detention order proved to be an ineffective remedy, as the sole review of their detention took the form of a mass hearing, where a single decision confirmed the detention of approximately 47 individuals, instead of an individualised assessment for each person. No further automatic reviews, provided for by law, ensued. 

Worse, there was a lack of independence and impartiality among the tribunal’s members, who had close links to the executive, providing no guarantees against outside pressure, and were appointed in the absence of a proper procedure for their appointment, together with no proper selection criteria based on merit. On this point, the government received a good battering. 

As the law currently reads, the Immigration Appeals Board is composed of a lawyer who shall preside, a person versed in immigration matters and another person, each of whom shall be appointed by the President acting on the advice of the minister. They are appointed for three years but may be removed from office by the President acting on the advice of the Prime Minister on grounds of gross negligence, conflict of interest, incompetence or acts or omissions unbecoming a member of the Board. 

In this latest judgment, most important of all, the court remarked and emphasised the fact that both the European Commission and the Venice Commission have been expressing serious concerns about the functioning of similar tribunals that clearly lacked independence and impartiality, but to no avail. 

More than one tribunal in Malta has not achieved complete independence and impartiality. Executive control and interference remain. 

Independence and impartiality are related aspects of the wider principle of justice but are subtly different in their scope. 

Independence means being free from the interests of the state, that is, the executive and the legislature, and from the parties in any dispute. Any fair trial and hearing does not allow reasons of state to influence any decision reached by decision-makers. 

Impartiality is closely linked to independence. Fundamentally, decision-makers must decide a case on the evidence available, free from influence, bias or prejudice, whether actual or apparent. 

There are subjective criteria (prejudice or bias of a particular decision-maker) and objective criteria (whether the composition of the tribunal offers sufficient guarantee of impartiality) for assessing impartiality. These approaches can merge in a given case. 

Administrative tribunals play an extraordinarily important role in Maltese society. Day after day, by the dozens, they sit in judgment on the rights and liabilities of Maltese and foreigners present in our country. Workers’ compensation, social security, financial institutions, immigration and the like. 

You name it; there’s probably a tribunal for it under some enactment, applying objective standards to facts found after an adversarial process. Many of these tribunals are court substitutes. But they do not have anything like the status of courts. Whereas judicial independence is anchored in the Constitution and jealously safeguarded by the courts, the legal protections for tribunal independence are minimal, and the prospects for judicial reform are not much greater. 

In such tribunals, the government, represented by the respective executive authority, is often a party in the proceedings. Freedom from direct government interference in the adjudication process has been recognised as a basic requirement of an independent tribunal system in the development of constitutional and European law. However, the government, by design or by default, is adversely impairing the independence and impartiality of the tribunals in more covert ways. 

If our tribunals continue to face political pressure, with their appointments and reappointments continuing to be politicised, with a system devalued and disrespected, there will be pervasive impacts that will make a mockery of justice. 

Our tribunals need collegial members who will support their tribunal’s institutional goals of adjudicative excellence, productivity, timeliness, accessibility and accountability. 

Will the government finally take the cue?