There’s been an odd development in Repubblika’s struggle to get an impartial judge to hear our challenge against the police chief for failing to implement the conclusions of a magistrate’s inquiry into Pilatus Bank.
‘Odd’ because it’s rare, as rare as watching an Accession Council made of perfectly reasonable women and men shouting in unison that God told them to choose a king and then shouting in unison that God should save that king. ‘Odd’ because it’s strange, as strange as watching an Accession Council … and so on.
A statement was issued today under the brand name “Judiciary Malta” publishing what is presumably an extract of an anonymous letter received by Magistrate Nadine Lia and commenting on the same as an “Association of the Judiciary together with the Chief Justice”. See a full image of the statement at the bottom of this post.
Much as people needed to explain on TV what an Accession Council is because most people weren’t alive the last time one met, I think it is legitimate to ask what “Judiciary Malta” is because I don’t think it has ever issued a public statement.
Presumably, there’s some regulation or statute filed somewhere that can provide answers to this but today’s statement made no effort to clarify in people’s mind who was speaking. I think therefore the questions and suggestions on what “Judiciary Malta” could be understood to mean are perfectly legitimate because, even if unintentional, the ambiguity is real.
Does “Judiciary Malta” refer to the institution, as in the entire judicial branch of the Maltese state? The brand and the logo on the stationery seems to suggest it is. A bit like when the “Government of Malta” speaks you know that the executive branch is pronouncing itself. The executive issues statements all the time. We know what it means when “the government” speaks. The judicial branch never pronounces itself as a collective. Some today said it “rarely” does. Does it ever?
Judges pronounce themselves individually (or where procedure requires them, in sets of 3 judges at a time) in the judgements they hand down. But though each judge or group of judges is a component of the judiciary, their pronouncements are not perceived as belonging to the entire judicial branch. Indeed, a decision by a judge in a lower court can be appealed and potentially overturned in an upper one. That fact alone allows us to understand that even judges know they are fallible, that their decisions, if not themselves, are accountable, that though their job is to interpret the law that doesn’t make them the whole of the law.
The chief justice, on certain specific occasions such as the yearly opening of the judicial year, delivers speeches that can be said to be made on behalf of the judicial branch. But he assumes responsibility for the content of his speeches on a personal basis. Those speeches are not perceived or intended to be perceived as institutional pronouncements.
At best, the logo of the association is bombastic and misleading. At worst, “Judiciary Malta” usurps the institution of the judiciary by equating its standing in the state with the opinions of the individuals who happen to be controlling its committee at any one time.
The question is not just a matter of curiosity. Can all members of the judiciary now be presumed to have subscribed to the views of the statement the association issued today? Is this a judgement and what’s more is this the judgement of all of them? Have they all deliberated on its content and do they all subscribe to it?
These questions are relevant for all possible future statements “Judiciary Malta” might decide to make, on whatever topic. But of course, I raise them because I am directly interested in the specific case that provoked their statement today.
Let me then address the specific issues raised by this statement.
Firstly, are we to deduce that members of the judiciary have never before today received anonymous letters bearing threats? That, I confess, is a rhetorical question. I am going to presume it is far from the first time that a judge has been threatened. I know members of the judiciary have had to be provided personal security because of the threats they have received. I know some of them expressed serious distress when they were denied security or the security they had was removed.
So, the question I ask is not a device intended to trivialise this specific letter sent to Magistrate Nadine Lia. Far from it. I know from personal experience how it feels to be threatened by someone who hides behind anonymity. I have not shut up about it when it happened to me. I raised the alarm and was criticised, some would say unfairly, for doing that. For a while I felt I couldn’t even stay here and left the country until things calmed down, or I was mentally able to handle the noise better.
My sympathy with Magistrate Nadine Lia after I learnt she received a threat in an anonymous letter was and remains both informed and sincere.
As I sympathised, for example, with the inquiring magistrate who ordered the police to search Joseph Muscat’s office and home earlier this year and was subjected to an onslaught of criticism by the current prime minister and his predecessor. “Judiciary Malta” made no comment then or at any other time that any of its members received threats. Members of the bench, past and present, tell stories of filing police reports about actions they perceived as threats and then hearing nothing in response.
They say sometimes of Repubblika that we speak of corruption now, but where were we when … insert some scandal from before the organisation existed or even most of us were yet born. The Maltese judiciary cannot have the same defence. Though individual judges certainly began their career at some point, we’ve had a Maltese judiciary for generations.
The thing about having judges is that they don’t get to choose when to pronounce judgement, nor do they get to choose what doom to pronounce. At least not without needing to be and appear to be consistent and pronouncing a similar judgement on a similar situation irrespective on whom the individuals affected might be. Any reaction by “Judiciary Malta” to an anonymous letter to Nadine Lia should rightly be expected to be consistent with any reaction to any other anonymous letter to any other member of the judiciary. But there have never been any before today.
In their statement, “Judiciary Malta” cite an extract from the anonymous letter received. Perhaps they wanted to illustrate the nature of the threat (“watch us ruin your career and your family”) which is understandable. One would hope they did not also want to create the impression that the threat is grounded in the criticism that Repubblika (and others) have addressed towards Nadine Lia since she began her inexplicable campaign to refuse to allow Repubblika a fair hearing in the Pilatus case.
Why do I say this? Because I have read over and over again the penultimate statement of their statement.
“Judiciary Malta” starts that paragraph by acknowledging and recognising that they must accept criticism. That’s an odd thing for judges to say because it shouldn’t need saying that judges accept criticism. The right to criticise is fundamental and for a judge acknowledging fundamental rights is a bit like your doctor allowing you to breathe.
The oddness doesn’t stop there. Having stated that they accept criticism, “Judiciary Malta” withdraw acceptance of criticism that “leads to” (‘iwassal għal’) threats and intimidation “as happened in this case”.
Forgive me for going a bit semantic here but all I have to interpret the intention of “Judiciary Malta” is their words and therefore I must analyse their words closely. What’s “this case”? Is it the case of the threatening letter or is it the case of Repubblika’s challenge to the police and Repubblika’s call for Nadine Lia’s abstention from hearing that challenge?
You see, the distinction is very, very important. It is perfectly reasonable for Nadine Lia’s colleagues to join Repubblika in its repudiation of any threats and anonymous letters sent to condition the free judgement of a member of the judiciary. So, if by “this case” they mean the threatening letter, the most “Judiciary Malta” can be accused of is imprecise and unfortunate drafting, not to mention the rather frightening standard of spelling.
If by “this case” they mean the case brought by Repubblika, then we have an altogether more complicated problem. Because “Judiciary Malta” would be saying then that Repubblika’s criticism of Nadine Lia for refusing to abstain from hearing the Pilatus challenge “led to” (“wassal għal”) the intimidation, the crime.
So much for accepting criticism. “Judiciary Malta” would be saying here that no criticism that could be perceived (by them) to have led to an anonymous letter is acceptable.
Think of it. There are nutcases all over the place. Surely though, whoever wrote that letter to Nadine Lia is alone responsible for their actions and Repubblika cannot be blamed if someone, whoever it is, may have thought they were doing their cause some favour by writing a letter like that.
Not to mention the fact that we have no reason to rule out that whoever wrote that anonymous letter may have deviously wished to undermine Repubblika rather than help it. Because though there are nutcases out there, there are also vicious schemers who share Joseph Muscat’s desire for the book on Pilatus Bank to remain tightly shut.
And yet, with perhaps a less optimistic reading, “Judiciary Malta”’s statement appears to attribute to Repubblika the moral responsibility of providing inspiration (if not the criminal responsibility of inciting) the unlawful act of sending an anonymous threatening letter.
Now this is problematic for several reasons. For one it raises a contradiction between the part of the statement that says “Judiciary Malta” accepts criticism and the part that says that it does not accept criticism that leads to threats. The contradiction can only be resolved by the understanding that “Judiciary Malta” only accepts criticism that would lead to nutcases writing them love letters. We are free to praise the judiciary, but not free to criticise it.
The other problem is worse. Where do we go now if the entire judicial branch seems to have collectively ruled that we are morally if not criminally responsible for threats to one of their own?
Is the magistrate conducting the inquiry into this anonymous letter subscribing to this “Judiciary Malta” statement? If so are we to assume that she has already decided that whoever did this, did it because Repubblika made them do it?
Is the judge hearing our constitutional application on fair hearing contesting Nadine Lia’s decision not to abstain from this case subscribing to this “Judiciary Malta” statement? Are we now to plead before a judge that our fundamental rights have been breached by Magistrate Lia if the same judge has implicitly branded us her aggressors?
If Nadine Lia hears the case and rules against Repubblika, has the judge in front of whom we might appeal subscribed to the “Judiciary Malta” statement?
Have all final safeguards for our fundamental rights and for our ability to fulfil our duty as a civil rights organisation to raise issues of rule of law been suppressed in one fell swoop by something that rightly or wrongly calls itself “Judiciary Malta”?
I’d like to think that somewhere in the midst of all this confusion there’s clarity. After all, our criticism of Nadine Lia did not challenge her understanding of the law or even her judgement. Judges and magistrates are asked to abstain from hearing cases all the time. That’s never taken as an outrage on judicial independence or even an assault on the credibility or competence of the judge being asked to abstain. Quite the contrary, the maxim that it is not enough for justice to be done, but that it must be seen to be done is repeated as often by members of the bench as by people appearing in front of them.
Nadine Lia’s refusal has locked her in a battle we still don’t understand. Surely even she thinks that all parties to an argument in court need to be satisfied that the matter is being arbitered by an impartial decision-maker. Certainly, she has abstained from hearing cases over much less than her financial interest in her husband’s law firm, her personal relationship with her father-in-law, and her public utterances in a partisan event before she became a magistrate, all issues raised in this case.
Surely, judges understand that it is not out of the ordinary for someone to feel they are being wrongfully judged to say so aloud. And that there is no manner of suppressing such an expression while still honouring the state’s obligation (in this case primarily their obligation as judges) to protect free speech.
Surely then there has not been an attempt by the Maltese state today through its judicial branch to censor a civil society organisation and to prejudice its rights before the courts now and in the future.
Surely this is just my negative reading of today’s statement. Surely this is just an appalled evaluation, the product of shock at the ambiguity of a poorly drafted text from people whose profession it is to diffuse doubt with the clarity of their writing. Surely, I have to hope, this is not malicious equivocation and it is not the dangerous precedent I fear it might be. I must hope we are not being warned that when a tyrant to whom some judges and magistrates feel they owe their jobs fails in his bid to discredit or suppress protest, they will have his back rather than the back of lawful protest.
Never have I wished more to be utterly mistaken.