Vincent De Gaetano on the Rule of Law: Read the speech here

By
2018-12-10T10:44:27+00:00Mon, 10th Dec '18, 07:51|0 Comments

Judge Vincent De Gaetano on Friday spoke at an event hosted by the President marking the 70th anniversary of the universal declaration of human rights. Vincent De Gaetano worked at the office of the Attorney General for sixteen years, was a judge for another sixteen years, eight of them as Chief Justice and has sat on the bench in the European Court of Human Rights in Strasbourg for the past 8 years.

There’s a short summary of his speech on the Times of Malta today but I think this really deserves your time to be read in its entirety.

 

First of all, allow me to thank the organisers of this annual conference, and in particular Dr Ruth Farrugia, for inviting me to give what has been billed as a key-note speech. I have to admit that I have a healthy dislike of key-note speeches – all the ones I have had to listen to in recent years, mainly in Strasbourg but also in some other places – have generally been very theoretical, rambling and far too long for my taste. Fortunately, I have been allotted only 35 minutes in which to say what I have to say, so I have been deprived of the chance of boring you to death. 

As to the topic of my speech, I have, in a sense, been inspired by two totally unrelated events. 

The first event, which came second in chronological order, was the fact that a few weeks ago I had to address students at a school in Lucknow, India – by video-conference from Strasbourg, I should add – on the significance of the concept of the Rule of Law. These were sixth-form students, so I had to keep things simple. 

The other event, which occurred first in chronological order, is the assassination of Daphne Caruana Galizia on the 16 of October of last year. 

Only a few months before this crime was committed, while addressing the participants of the 2017 Mini-European Assembly organised by the National Student Travel Foundation, at the Palace in Valletta, I had quoted extensively from the 2016 report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye. The first four sentences of that report still resonate in my mind:

‘A journalist investigates corruption at the highest levels of her Government and soon finds herself fighting fictional charges from the cell of a prison. A critic of a Government is assassinated while buying groceries. Another Government bans its main political opposition party as “extremist,” sending its leaders to jail. A cartoonist faces prosecution under his country’s laws against sedition. A Government shuts down the Internet in advance of public protests, while another uses surveillance to target political opposition’.

These words seemed completely alien to me then – as when one is watching a film or a play which, even if based on real facts and events, are facts and events which take place elsewhere, but surely not in my street, not in my backyard, not in my village square. They no longer sound that alien to me today.

What happened in Bidnija in October 2017, as well as events preceding and others subsequent to Caruana Galizia’s assassination, have now galvanised the attention of Europe on the state of the Rule of Law in Malta. So I have decided to share with you some thoughts about the Rule of Law as it applies, or in relation, to Malta. 

The topic is, of course, extremely vast, so you will, I am sure, forgive me if I limit myself to those aspects of the Rule of Law where I can draw some parallels or examples from my own personal and professional experience. I have spent most of adult life working in law: sixteen years in the Attorney General’s Office, mainly as a prosecutor; another sixteen years on the Bench in Malta (eight of them as Chief Justice); and now more than eight years as a judge in Strasbourg. 

In spite of more than forty years working in law, I still have difficulty in defining the Rule of Law. Putting aside for the moment the philosophical discourse of the distinction between descriptive and essential definitions, one finds that the words “The Rule of Law” are used in several important international instruments, but with no attempt made to try and explain or define the expression. In the Universal Declaration of Human Rights, whose 70th anniversary we are marking this year, we find in the Preamble that:

“…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

The juxtaposition of “human rights” and “rule of law” on the one hand, with “tyranny” and “oppression” on the other, begins to suggest that we are talking about something which has to do with good governance. Article 3 of the Statute of the Council of Europe specifies that every member of the Organisation must accept the principles of the Rule of Law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. 

The Rule of Law is, therefore, a precondition to membership. Read together with Article 1 of the Statute, it further provides that members must collaborate sincerely and effectively in the realisation of the aim of the Council of Europe as set out in Article 1(a) of that statute, namely,

 “…to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their social and economic progress.”

Here we begin to see a wider perspective, namely that the Rule of Law somehow has a bearing on social and economic progress. If a member State seriously violates – notice the adverb “seriously”, which is a convenient safety valve – the Rule of Law, then Article 8 of the Statute kicks in and that State may be suspended and eventually expelled from the Organisation.

Art. 8: Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine. (emphasis added)

In the history of the Council of Europe there has been only one instance when pressure began to mount on a member state so much that it eventually quit: Greece, which was then run by a military junta, in December 1969, withdrew so as not to face expulsion. 

Today, of course, the geo-political reality is very different from what it was in 1969, and Russia’s annexation of Crimea has only resulted in the Parliamentary Assembly of the Council of Europe suspending the voting rights of the Russian delegation to that assembly and also excluding Russia from that assembly’s main bodies. But Russia remains a full member of the Council of Europe, even though it has retaliated by not paying its annual dues to the Council of Europe, leading to a budgetary crisis not only for the Council of Europe but also for the European Court of Human Rights. 

Other international instruments – we find cursory references to the Rule of Law in the Treaty of the European Union, but again no definition. Quite curiously, the Rule of Law is mentioned only in the preamble, and only once, of both the Charter of Fundamental Rights of the European Union and of the European Convention on Human Rights. In the Charter we have:

Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. 

While in the preamble to the ECHR we are told:

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,…

So the basic question still remains – what is meant by the Rule of Law, at least in a European context? Can history help us? Not much, in my view. 

Although writers and philosophers have, at times attempted, most times unconsciously, to offer some tentative help, the social and political context in which these people were operating did not allow them to take a comprehensive view of the notion under examination. Yet they do shed some light. 

Let us take Cicero, for instance: Servi legum sumus ut liberi esse possimus – we are servants of the law in order to be free. But we know that the law to which we are asked to submit, ostensibly in order to be free, may actually be a law which allows arbitrariness, or which makes improper distinctions; indeed, it may be a law which violates fundamental human rights as we understand them today. 

It may fall short of that “Quality of Law” which was the basis for the finding of a violation in Unifaun Theatre Productions Limited and Others v. Malta (15/5/2018). 

Many people in Malta who did not bother to read the judgment assumed that that judgment, which found a violation of Article 10 (Freedom of Expression) of the ECHR, said that the play could or should have been staged, or that it vindicated the actors’ or the producers’ right to have the play staged, or that it did not have anything obscene or censurable in it, or – more outlandishly – that this judgment somehow vindicated the total removal of any sort of censorship, if not indeed also the removal from the Criminal Code of the crime of vilification of religion. 

The judgment did nothing of the sort: it was based on the very narrow reasoning that the law upon which the staging of the production was banned was not properly drafted to allow persons affected by it to foresee the consequences of their actions, nor did it give them clear indications of, for instance, how to appeal from a decision of the Board of Censors. 

The reasoning of the Court is encapsulated in paragraph 87 of that judgment:

The various considerations above are sufficient for the Court to find that the law relied on by the respondent Government was not of a sufficient quality and that the interference was a result of a procedure which was not prescribed by law. (emphasis added)

Let’s go back in history: St Augustine saw much affinity between the concept of justice and the orderly functioning of a State – of course in his time the concept of Statehood, as we know it today, had not yet come into being, the city-states of Greece and the Roman Republic were things of the past, and the only political collectivities that were available in his part of the world were Empires or Kingdoms – in one of his discourses Augustine says: Remota iustitia, quid sunt regna nisi magna latrocinia – if you remove justice, what are kingdoms [governments] if not organised brigandage. 

Here we have a hint that justice and good governance go hand in hand, and the germ of an idea that governance should be based on laws and that governmental power should be subject to control – and let us not forget that Augustine had such a strong sense of justice that for him a law was no law unless it was just – mihi lex esse non videtur quae iusta non fuerit. Almost eight hundred years later, the Barons of England, meeting at a beautiful meadow which still exists to this very day, called Runnymede, need Windsor, to exact from King John terms intended to curb his absolute power, obtained from the Crown the following assurance: nulli vendemus, nulli negabimus aut differemus rectum vel iustitiam – to no one shall we sell, to no one deny or delay, right or justice. 

It is quite ironic that this right to justice within a reasonable time was challenged by the British Government itself in the famous case of Golder v the United Kingdom, 21 February 1975. 

You probably know the facts: Golder was a guest of a Her Majesty at Parkhurst Prison on the Isle of White. As a result of some argument with prison guards, he felt that he had been defamed by one of the guards and wanted to sue him. At that time, prison rules in England and Wales allowed prisoners to consult a lawyer only if they were awaiting trial; convicted prisoners, like Mr Golder, could only communicate with a lawyer with the permission of the Home Secretary. 

In this case the Home Secretary refused such permission. Before the Court in Strasbourg the British Government argued that Article 6 of the Convention only guarantees a fair hearing within a reasonable time, but not a right “of access to a court” – it is like saying, yes, you are entitled to a fair hearing, you are entitled to have a subjectively and objectively impartial judge to deal with whatever you are arguing before him/her, but you have no right of action to secure that substantive right! 

The very inverse of ubi ius, ibi remedium. 

The ECtHR did not countenance such sophistry: by applying a teleological interpretation of Article 6 and invoking the concept of the Rule of Law mentioned in the preamble of the Convention, it held that Article 6 also guaranteed a right of access to a court. 

It held in particular that the reference to the Rule of Law in the preamble could not be regarded as a “more or less rhetorical reference”, devoid of relevance for those interpreting and applying the Convention. Golder was the first case in which the Strasbourg Court expressly refers to the Rule of Law. Since then the Court has invoked the Rule of Law in countless other cases involving a variety of rights under the Convention, but it has never attempted to define the contents of the concept – that task has been left to others. 

Nevertheless, the Court has given certain guidelines, and this, generally, by using the expression in the context of a particular situation or juxtaposing it with a situation implying an absence of the Rule of Law. 

Broadly speaking, it can be said that in the espace juridique of the Convention, the Rule of Law requires not only that society is governed on the basis of laws but also that these laws are the result of a democratic process. This requirement of a democratic process, however, goes beyond the mere notion of majority rule and denotes that decision-making should be a participatory process. 

Moreover, it has also indicated that the separation of powers must be practical and effective, and not merely theoretical or on paper: the separation of powers should ensure that power is not concentrated in the hands of one individual or a number of individuals and, more importantly, that those enacting the law are not the same as those deciding on its application in practice.

Take, for instance, Baka v Hungary, decided by the GC on 23 June 2016. The case, as some of you may recall, involved the premature termination of Mr Baka’s mandate as President of the Supreme Court of Hungary and his lack of access to court to challenge the termination. 

The Court held that Baka’s access to court had been impeded, not by express legislative exclusion, but rather by the fact that the premature termination of his mandate had been written into the new Hungarian Constitution itself and was therefore not subject to any form of judicial review. 

It also found that Mr Baka’s dismissal had been due to the criticism he had publicly expressed of government policy on judicial reform when he was President of the Supreme Court, underlining that the fear of sanction, such as losing judicial office, could have a “chilling effect” on the exercise of freedom of expression and risked discouraging judges from making critical remarks about public institutions or policies. 

The GC found a violation of both Article 6 and Article 10 of the Convention. In this judgment we have a wealth of information as to what can be construed as forming the substantive content of the Rule of Law, yet the ECtHR never expressly says “the Rule of law means…” or “the Rule of Law implies…” this or that – it simply refers to the concept in a particular situation or context. 

Let me, by way of an example, just quote to you just one paragraph from the Baka judgment:

§117: Indeed, the Court would emphasise that, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is expressly mentioned in the Preamble to the Convention and is inherent in all the Articles of the Convention, requires, inter alia, that any interference must in principle be based on an instrument of general application (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 99, 25 October 2012; see also, mutatis mutandis, concerning legislative interferences and the rule of law, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §§ 47-50, Series A no. 301B). The Venice Commission has also held in relation to the applicant’s case that laws which are directed against a specific person are contrary to the rule of law (see paragraph 59 above).

The Venice Commission has been working for many years now to give some substance to the notion of the Rule of Law. It has produced two documents in particular which are of relevance: a preliminary one in 2011, and a more substantial document in 2016. Both reports, incidentally, are considered by the Court in Strasbourg as being soft law. In its 2011 Report, the Commission proposed a functional non-exhaustive definition of the notion of the Rule of Law. It said:

….it seems that a consensus can now be found for the necessary elements of the rule of law as well as those of the Rechtsstaat which are not only formal but also substantial or material (materieller Rechtsstaatsbegriff). These are: (1) Legality, including a transparent, accountable and democratic process for enacting law (2) Legal certainty (3) Prohibition of arbitrariness (4) Access to justice before independent and impartial courts, including judicial review of administrative acts (5) Respect for human rights (6) Non-discrimination and equality before the law.

I would add something else: for the Rule of Law to be effective there must be a genuine predisposition, an attitude, of those in any position of power to give practical effect to these functional aspects of the Rule of Law, in other words to go beyond merely paying lip service. 

In its second Report, of 2016, the Commission elaborated extensively on these points, providing a sort of checklist or bench marks against which every State can measure where it stands in terms of the rule of law. These six main substantial points have been expanded with many sub-divisions. I will try to summarise these six points and their various sub-divisions, and after each I will propose some pertinent or impertinent questions with a Maltese backdrop.

The first benchmark is that of legality. Does the law of the land define in a proper and effective way the powers of state authorities, provide for judicial review of acts by state authorities and ensure that everyone – from the Head of State downwards – is subject to the law? In particular, is the Legislature’s power to make laws subject to review if it is alleged that a law is in breach of a fundamental human right? Is the process of enacting laws transparent, accountable, inclusive and democratic?

The first temptation is to say that we pass this test with flying colours. But do we really? It is true that since the amendment of Article 65(1) of the Constitution in 2003 it is today possible to challenge the validity of a law by means of an actio popularis (under Art. 116 of the Constitution) not only on purely formal grounds (e.g. the parliamentary procedure was not followed) but more importantly on certain substantive grounds, like that the law is not conformity with full respect for human rights, or with the European Convention on Human Rights, or with other treaties. 

The plaintiff, who incidentally need not even be a Maltese citizen, does not have to show any personal interest in support of the action. 

But what if, for instance, I want to challenge the validity of appointments in the public service to the so called “positions of trust” which by-pass entirely Article 110 of the Constitution? Here we are not talking of the validity of a law but of the validity of an administrative practice or mal-practice – so Art. 116 of the Constitution is of no use. 

If I were to go for Article 469A of the Code of Organisation and Civil Procedure to seek judicial review, apart from the fact that these acts of appointment are exempted under the very definition of an “administrative act”, I would be required to show juridical interest in proposing the action, which unless I can prove that I was promised the particular appointment to the position of trust which was instead given to someone else, it would be impossible for me to make any headway. 

The fact that I am a concerned citizen, concerned not only about the suitability of the person appointed to be in the public service but also about the use, or possibly misuse, of public funds, is unlikely to get me anywhere. 

Another issue in connection with this benchmark is the increasing practice of legislating extensively by means of legal notices, which are not properly debated in Parliament – they are not debated at all. It is true that, by application of Article 11 of the Interpretation Act, an MP may, within a certain time, bring a motion to amend or annul that subsidiary legislation, but do members of Parliament – all part-timers except for Ministers – have the resources to undertake such vetting of legal notices? 

In any case, even if subsidiary legislation is eventually annulled by resolution of the House, this does not affect (according to the Interpretation Act, at least) the validity of what may have already been done under that piece of legislation. 

The second benchmark is legal certainty. Are laws, particularly laws which create criminal offences, easily accessible? Are court decisions which apply and, in some cases, interpret the law accessible? Are the laws drafted in such a way that the effects of those laws are foreseeable? 

Foreseeability means, as we have seen in connection with the Unifaun case, not only that a law must be proclaimed in advance of implementation, but it must be formulated with sufficient precision and clarity to enable the citizens to regulate their conduct with it. Finally, are final judgments of the courts respected and effectively implemented? 

This final point – the enforcement in good faith of final judgments – is important. A final judgment, whether of the ECtHR or of a Maltese court, cannot be nullified, directly or indirectly, by legislation made subsequent to the commencement of the litigation leading to that judgment. 

If A is litigating against B, the State cannot change the law pending the litigation so as to favour one side over the other, as that would violate the principle of the equality of arms (Arras and Others v. Italy, 14/02/2012; Stefanetti and Others v. Italy, 15/04/2014) and therefore there would be a violation of Article 6. Multo magis, of course, if one of the litigants is the State itself.

The third benchmark: preventing abuse or misuse of powers. Are there effective safeguards – judicial, legal, administrative or mixed – against arbitrariness and abuse of power by public authorities? 

In particular, are public authorities obliged to give reasons for their administrative decisions, particularly decisions involving the use of public money? Or does one have to extract these explanations by pincers or by a corkscrew?

Of course, on paper things may look grand, with commissions and committees to administer this or that part or of the public powers – the participatory process I mentioned earlier – or to act as regulators, or to enquire into abuses. 

The impertinent or inconvenient questions I ask are: what resources, especially in terms of manpower, do these bodies really have? Who are they answerable to in final analysis? How can the public ensure that the people appointed to these bodies are really the best qualified for the post – because only if they are fully qualified and competent and objectively independent, can they act as a check on abuse or misuse of public powers. 

Let me take two entities – and I choose them because the people heading them are people I consider friends, fully competent, dedicated and in all respects above board. The first entity is the Office of the Commissioner for Mental Health, or, to use his official designation, Commissioner for the Promotion of Rights of Persons with Mental Disorders. 

If one looks at Article 6 of this Act, one finds that the Commissioner is tasked with a bewildering variety of functions. I will refer only to sub-paragraphs (k), (l) and (m) of sub-article (1) of Art. 6:

(k) [to] conduct regular inspections, at least annually, of all licensed facilities to ascertain that the rights of patients and all the provisions of this Act are being upheld. During such visits he shall have unrestricted access to all parts of the licensed facility and patient medical records as well as the right to interview any patient in such facility in private; 

(l) [to] report any case amounting to a breach of human rights within a licensed facility to the appropriate competent authority recommending the rectification of such a breach and take any other proportional action he deems appropriate;

(m) [to] report to the appropriate competent authority any healthcare professional for breach of human rights or for contravening any provision of this Act and this without prejudice to any other proportional action that he may deem necessary to take;

Now, if one looks at Article 5 of the Act, under which the Commissioner is appointed, one notes that this provision does not even indicate the minimum qualifications that the holder of the post is to have – one assumes that the person has to have at least a medical qualification, if not also some experience in psychiatry. 

He does not enjoy security of tenure, because he is appointed by the Prime Minister (not with the concurrence of, but simply after consulting, the Leader of the Opposition) “under such terms and conditions as the Prime Minister deems appropriate”. But what is more worrying is his line-relationship to the Minister responsible for Health. Sub-article (2) of Article 5 says:

(2) The Commissioner shall exercise his functions under this Act in relation to particular cases in his own individual judgement but he shall nevertheless be accountable for his performance to the Minister.

What does “but shall nevertheless be accountable for his performance to the Minister” mean? 

Here we are dealing with, among other things, the fundamental human rights of persons who the ECtHR has, in countless judgments, held to be particularly vulnerable; they may not have a vote, but for that very reason they are more particularly vulnerable. 

All the licensed facilities in Malta housing and dealing with mentally disordered persons are, as far as I am aware, run by the Government, which in turn places upon the State the obligation – the positive obligation in terms of the Convention and the Strasbourg Court’s case law – to not only ensure their safety and wellbeing, but also that they are provided with adequate treatment, and this especially in respect of those who are compulsorily detained (where Article 5 of the Convention kicks in). 

Yet the person specifically charged with ensuring that the Executive branch of Government does all this, is “accountable for his performance” to the Minister who is responsible for the very hospital that he supervises, instead of to Parliament! I have never managed to find out why the legislator fudged this.

The other entity is the Permanent Commission against Corruption, today composed of a retired judge as Chairman – Judge Quintano – with whom I had the pleasure to work for many years both in the AG’s Office and later on the Bench in Malta, and a retired Commissioner of Police, John Rizzo, with whom I also had the pleasure to work when I was in the AG’s Office and who always did his job fearlessly but also scrupulously abided by the law. 

The third member of the Commission is a lawyer about whom I know nothing. 

On paper Commission looks grand – it can even investigate on its own motion or initiative, that is without the necessity of a report being filed by anyone. It is trite knowledge, however, that its powers are limited but, more crucially, that it has no resources whatsoever in terms of administrative or investigative manpower. This has been signalled by the Group of States against Corruption in its report of 2014:

The Permanent Commission against Corruption (PCAC), a specialised body dealing exclusively with the investigation of alleged or suspected corrupt practices within public administration, was established in 1988; however, its track record has not been as successful as hoped for to date. According to a national report released in July 2013, none of the 425 investigations conducted by the PCAC since its creation had resulted in criminal proceedings in court. GRECO has repeatedly noted that, for the PCAC to be a meaningful instrument in the fight against corruption, its role needed to be strengthened in terms of both powers and resources.

The impertinent question I will ask is: are the two main political parties really interested in having a meaningful and independent instrument in the fight against corruption or are they content with paper tigers?

Fourth benchmark: equality before the law and non-discrimination. The principle of non-discrimination requires the prohibition of any unjustified unequal treatment under the law and/or by the law, and that all persons have guaranteed equal and effective protection against discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth or status. 

In particular, legislation must respect the principle of equality, that is, it must treat similar situations equally, and different situations differently.

Now, on the 8 of December 2015, Malta signed and ratified Protocol no. 12 to the European Convention on Human Rights. This Protocol came into effect with regard to Malta on the 1 of April 2016. 

The protocol, as many of you know, enshrines the principle of non-discrimination in the enjoyment not only of the substantive provisions of the Convention (as is the case with Article 14), but of any right set forth in domestic law – in other words it goes much further than Article 14 and of course much further than Article 45 of the Constitution. 

We are, at least according to the Gregorian calendar, almost at the end of 2018, and yet this protocol, unlike all the other Protocols to the Convention that Malta has signed and ratified, has not yet been included in the First Schedule of the European Convention Act. 

What are we waiting for? Malta is bound by that protocol now; but anyone alleging a breach of Article 1 of Protocol 12 cannot go before the First Hall of the Civil Court in Malta and the Constitutional Court because that article is not part of the definition of “Human Rights and Fundamental Freedoms” for the purposes of Cap. 319. The person would have to have direct recourse to the Court in Strasbourg, with all the expense that that entails. To me this is all quite bizarre. 

Fifth – access to justice. Are there sufficient constitutional and other guarantees of judicial independence? Independence means that the judiciary is free from both external and internal (i.e. within the judicial system itself) pressure, and that judges are not subject to political influence or manipulation, in particular, but not exclusively, by the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. 

Such manipulation can occur when the lay administration of the courts of justice interferes, directly or indirectly, in the proper administration of justice. 

When I was C.J. I always emphasised the difference between the constitutional independence of the Judiciary – the independence as guaranteed by the Constitution – and the institutional independence – the independence that the Judiciary must have from the lay administration of the courts, an administration which is completely subservient to the Minister responsible for justice. 

It was precisely to guarantee as much as possible this institutional independence that in 2008 a provision was inserted, on my suggestion, in the regulations laying down the functions and duties of the various court officials, including the Director General of the Courts (Regulation 12 of Subsidiary Legislation 12.21) to the effect that the C.J. could annul a decision of the Director General if the former was of the view that such a decision impinged upon the exercise of judicial functions

12. Notwithstanding the foregoing provisions of these regulations, the Director General or any person authorised by him under these regulations, in the exercise of his functions thereunder, shall ensure that he does not interfere in any manner in the exercise of judicial functions by the members of the judiciary and, should this be the case, the Chief Justice shall, by written notice under his hand and in terms of this regulation, overrule any such decision of the Director General; and, in doing so, the Chief Justice may give such directions to the Director General or to any delegate thereof which might appear to the Chief Justice to be in the interests of the better administration of justice in the instant case.

Remember that this provision is just a regulation in subsidiary legislation, it can be deleted at the stroke of a pen.

Also – and this is something which is often not given enough attention – is the prosecution service, at every level of jurisdiction, sufficiently autonomous to be able to perform its task effectively, that is not just by paying lip service to the Rule of Law? 

Does the legal system ensure that trials are fair and transparent and, in the context of criminal trials, that the presumption of innocence is effectively guaranteed? In this respect perhaps I should try and debunk once and for all the myth that we in Malta have some sort of “judicial investigation” which is functionally independent from the Executive. 

We have heard in recent months of people awaiting the outcome of this and that magisterial inquiry. In Malta we have nothing comparable to the autonomous and functionally independent judicial investigations on the continent. 

A careful examination of Articles 546 to 569 of the Criminal Code would show that our inquiry relating to the “in genere” – conducted indeed by a Magistrate – is intended primarily to describe and preserve the material traces of an offence. Only exceptionally will a magistrate order, in the process-verbal, that a person is arraigned in court on any charge, and when he/she does, the magistrate’s decision may be countermanded by a member of the executive – the Attorney General – Art. 569(6) of the Criminal Code. 

And the Attorney General is not bound to make public his reasons – he simply makes a report to the person who is vested with the Executive Authority in Malta – the President of Malta – and the latter is not bound to make public those reasons – so, no possibility of judicial review of a decision not to prosecute, as you have in many jurisdictions in Europe, including England and Wales. 

Moreover, the inquiring magistrate is functionally dependent on the Executive Police for the conduct of such an inquiry – magistrates not only do not have the time (with their enormous workload) to carry out complicated or complex investigations; but they neither have the appropriate specialised training for that, nor independent resources. So, let’s stop kidding ourselves please. 

Malta must be the only country in the civilised world where, except where the executive police or the Attorney General sound the gong for a magistrate to conduct an “in genere” inquiry, in all other cases before a magistrate can act he must inform the suspect of the report, information or complaint against him and allow him time to give his views on whether an inquiry is to be held (Art. 546(4A)). This is beyond bizarre. 

Finally – the last benchmark – what practical and effective measures are in place to ensure that the Rule of Law is not undermined by corruption and conflict of interest by people in public office or by people administering public services? 

Corruption leads to arbitrariness and abuse of powers, it distorts a nation’s economy, creates unnecessary financial burdens on the citizens (particularly the most vulnerable), and can in due course lead to such general dissatisfaction that law and order will break down – which is exactly what the Universal Declaration of Human Rights seeks to avoid.