On the parliamentary removal of a judge

Now that the Commission for the Administration of Justice has submitted its second report to the Speaker of the House of Representatives, the House Business Committee has to decide the way forward. It can decide to regulate the procedure as to how the removal motion will be discussed and voted upon and move on from there; it may also query the correctness of the procedure followed by the Commission for the Administration of Justice at re-submitting its original January 2014 report without even hearing the case afresh as requested by the Speaker.

While one understands that the motion to remove Mr Justice Lino Farrugia Sacco should be dealt with in an expeditious manner, one must not sacrifice the right to a fair trial to guarantee an expeditious process. This is indeed what the Commission for the Administration of Justice has done in its second report - it has thrown overboard Farrugia Sacco's right to a fair trial in order to report back, as fast as possible, to the Speaker, while ignoring the Speaker's request for a fresh report.

Indeed, the Constitution explicitly states that Commission members should abstain from hearing a case when prejudiced. When the Commission members drew up the first report they arrived at the conclusion that there was a prima facie case of misbehaviour. And they did so after hearing the Judge make his case. In the second report, they confirm their original conclusion in the first report. In doing so, they did not even hear the submissions of the Judge and the same members - who were already biased against the Judge and who had found a prima facie case of misbehaviour against him, continued to sit on the Commission and, once again, quite obviously, found against the Judge.

The principle of natural justice of audi et alteram partem has been breached as the Commission did not hear the Judge the second time round; the principle of nemo judex in causa sua has been breached as the same persons who made an appraisal of guilt the first time round, considered and decided upon the second removal motion in Farrugia Sacco's absence; the principle of natural justice requiring the Commission to give reasons for its second decision has been breached as well as no reasons are given for their appraisal of guilt of Farrugia Sacco in the second report except for a reference to the original report.

But the original report is a dead letter as when the Speaker ruled that the original motion by Lawrence Gonzi did not withstand the test of time following dissolution of Parliament, the Commission argued that its first report was still valid. But if the original motion is no longer valid, how can the original report still continue to be valid? Quod nullum est, nullum producit effectum is one of the legal principles followed by our courts in deciding civil disputes. Does not this legal principle apply to this case as well? How can the Commission act on a motion which has lost its validity with the dissolution of Parliament?

The problem I see with the Commission's second report is that it did not go through the motions envisaged by law. First, the President of Malta should have changed the members of the Commission because of prejudice so that the new triers are not tainted with bias.

Secondly, the reconstituted Commission should have heard the Judge argue his case on the new motion which contains a new charge once the old motion was declared dead by the Speaker of the House of Representatives. Third, the Commission should have heard the case in public, not in camera, in the light of the Olujić v. Croatia (5 February 2009, application no. 22330/05) judgment of the European Court of Human Rights. Indeed, the European Court had to consider a disciplinary case against a Judge and in that case it held that the Judge in question was entitled to a right to a fair trial, that same right that was denied to Farrugia Sacco in the Commission's second report.

Irrespective of any irregularity which might have taken place in the Commission's second report as stated above, should the House Business Committee decide to ask the Commission to draw up afresh a third report and should a third report finding a prima facie case of misbehaviour be submitted to the House following due process of law, the House would then have to try the motion for removal itself.

But the House has also to be careful not to act as Judge, Juror and Prosecutor at one and the same time. The Olujić v. Croatia judgment applies also to the House. We still remember the European Court of Human Rights judgment of Demicoli v. Malta where the House of Representatives was found to be in breach of the right to a fair trial. So when the House Business Committee eventually comes to decide on its procedure it needs to factor this in mind. Those MPs who have publicly expressed an opinion in favour or against Farrugia Sacco have to abstain from hearing the case.

Ideally the motion approving the procedure to be followed should request the Chairman of the Commission for the Administration of Justice to appoint one or more of its members (such as the Attorney General) to put the case before Parliament for removal of the Judge; the Judge and his legal team should be given full opportunity to put his case and it is only then that Members of Parliament should be allowed to speak on the matter.

The Speaker should also ensure that the discussion on this removal motion is kept serene, that biased Members of Parliament are debarred from taking part in the removal procedure, including in voting, that the House should act more like a court of law than a political assembly and that the end result of the debate should be that of arriving at the truth. Like in the Depasquale case, a free vote should be allowed and the political parties should agree that party whips should not give instructions to MPs as how to vote. The matter should be left to the MPs themselves to decide such an important motion.

Unfortunately, our Constitution and law do not really go into great detail when regulating a removal procedure of a judge. This is something which needs to be looked into.

On the other hand, the Constitution does require the abstention of a Commission member from deliberating on an appraisal of guilt, even if prima facie, and it should be imperative upon Commission members to comply with this constitutional requirement to ensure that justice is not only done but that it is seen to be done. Otherwise the removal process would be tainted with such a gross irregularity in the nature of a breach of a human right.

When considering this latter principle enunciated by the European Court of Human Rights in several of its judgments, I cannot state that I possess that serenity of mind to conclusively affirm that in the second report such principle was followed both to the letter and to the spirit.

Prof. Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta