Justice reform back on the agenda… with a bang

The resignation of a senior judge over allegations of corruption yesterday - which marks the third such case in the past decade - has re-awakened calls for an overhaul of the entire justice system.

But while there is broad agreement that reform is needed, opinions differ as to how to effect any changes. And as always, the spectre of political interference can be seen hovering above the entire issue.. perhaps unsurprisingly, given that judges and magistrates are still theoretically political appointees.

The judiciary forms one of three 'pillars' (four, if you also include the media) upon which any modern democratic State is supposed to be built.

The other two pillars are the executive (i.e., Cabinet, in our country) and the legislative (parliament); and while the independence and autonomy of all three institutions are supposed be a sine qua non, in practice it is highly debatable whether they are in fact autonomous entities at all.

At a cursory glance, legal case history in Malta does not exactly impart the impression of a full separation of powers when it comes to the independence of the judiciary.  For instance: a court case initiated against government in 1990 by the shareholders of the former National Bank is still is session today, 22 years later... having been deferred on countless occasions, without any clear reason ever being given.

In the 1980s there were even cases where the government stepped in to 'relieve' individual judges of their case-loads... one example being the 'Church Schools' case filed in the Constitutional Court by the Federation of Parents' Teachers' Associations, against the government's notorious 'Jew B'Xejn Jew Xejn' policy.

But nowhere is the distinction between the disparate arms of the State more blurred than in the issue of the appointment of the judiciary.

In Malta's legal system, this decision is taken exclusively by the Justice Minister, and only needs ratification by the Cabinet... although there have been instances where the advice of the Commission for the Administration of Justice has also been sought.

Among the more outspoken critics of this system is Former Chief Justice Joseph Said Pullicino - today the Ombudsman - who reiterated his earlier argument that a change in the way members of the judiciary are nominated is now necessary: "I said this when I was still sitting, and I will say it again."

Said Pullicino was also one of the few public figures to venture into the controversy over Lino Farrugia Sacco: who was reprimanded by the Olympic Committee after having been duped into a recorded conversation with a journalist posing as a Middle Eastern ticket tout.

Said Pullicino was criticised by the Commission for the Administration of Justice for arguing that Farrugia Sacco should be suspended: he countered that his suggestion was not in itself ground-breaking. "Any employee appearing in front of a board of discipline is suspended during the course of the investigation" 

But even the former Chief Justice acknowledged that the issue was not clear-cut: hinting that any disciplinary measures would have to be careful not to undermine independence of the judiciary.

Judges should be protected by the law, he pointed out: but under no circumstances should this be extended to impunity.

But the spat between Ombudsman and Justice Commission also revealed another anomaly in our legfal system. Although the latter gives the impression of being a regulator of the justice sector, unlike any other regulator, it usually proves powerless to take any form of action of its own.

Paradoxically, this was brought up by none other than Former President Eddie Fenech Adami - who incidentally was instrumental in setting up the Commission in the first place.

Commenting on TVAM this week, Fenech Adami was far from satisfied with the way the Commission has evolved: "The Commission for Administration of Justice has no clout when it comes to implementing recommendations it makes."

He explained that while the Commission is free to make recommendations, it cannot enforce those recommendations by means of any actions, and thus, in this sense "it is weak."

Fenech Adami's proposed solution? To set up a Constitutional Organ overlooking that recommendations by Commission are put into action.

The former President is not alone in questioning the validity of an ultimately toothless Commission. Dr Reuben Balzan, chair of the Chamber of Advocates, agreed that the commission is "powerless": adding that reforms could only happen with the backing of two-thirds of the House of Representatives.

"Such incidents highlight the urgent need to reform the Commission for the Administration of Justice, as it must have the means to take action when there are any allegations of misbehaviour by members of the judiciary."

Elsewhere, others involved in the judiciary were almost too dismayed by the latest revelations for word.

Former Chief Justice Giuseppe Mifsud Bonnici expressed shock at the news of Judge Ray Pace's arrest, and took the opportunity to remind the media of the maxim that all suspects are presumed innocent until proven guilty.

"It is important that trust in the judiciary was not undermined because it would be a national tragedy," he said... adding that many are suffering at this moment - including Judge Pace himself.

"It would be wise for all to await the final judgment before jumping to any conclusions."