The prime minister said yesterday in his speech that he discussed what he considers as lenient decisions of the criminal court with an unnamed magistrate.
Robert Abela worked in the law courts for years. He knows that the idea of questioning a magistrate’s decisions and urging different decisions in private conversations with that magistrate is absolutely not on. He knows that even if he ever had the privilege of being given the confidence of a private conversation by a member of the judiciary, the least he would be expected to do is not to speak about it, and that’s if he was an ordinary lawyer, never mind a prime minister.
To begin with he knows full well that even for having that conversation the magistrate concerned was breaking the rules. The magistrate is bound by a code of ethics that expressly disallows a conversation with a member of the executive except in very specific circumstances and following a very specific protocol, let alone having a conversation with the head of the executive.
The reason the rule exists is not because someone likes writing rules for their own sake. The rule is there to protect judges and magistrates from interference from the government and to protect the judicial process even from the appearance of interference from the government.
When you appear in front of a judge you don’t want to think they are held by strings, manipulated by the hidden hand of some prime minister. You expect to be judged only based on what the law says, what the evidence proves, and what the conscience of the judge, free from anyone else’s interference, tells them to decide.
The system is unfair when the person prosecuting you works for the prime minister (as they do, because they must work for someone) and the person judging you is having behind-closed-doors chinwags with the same prime minister who is telling them how they should decide.
If Robert Abela had this conversation last week, which unprovoked he openly admitted to, he can very well also be having conversations with magistrates about cases that concern him: inquiries into corruption involving the Labour Party, prosecution of people who bribed his ministers, and so on.
He may be bothered to deny this and say that he keeps specifics out of his forbidden secret conversations with members of the bench. But that doesn’t matter. The reason these conversations are forbidden is that we never know if anyone is saying the truth about what they’re saying when we’re not watching.
I say it’s not a slip of the tongue because Robert Abela knows it’s taboo to have behind-closed-doors conversations with magistrates. And I say it’s not a slip of the tongue because by openly normalising and reversing this taboo he has brought, in the public’s perception, the judiciary under his thumb. And that’s something he wants.
You see that code of ethics for magistrates binds him as well. If it is unethical for a magistrate to have private chats about sentencing with the prime minister, then surely it is at least just as unethical for the prime minister to be having those same private chats.
The prime minister is indeed unethical. The ethical rule requires him to act within the limits of his power and those limits should prevent him from interfering with the judiciary. And the reason for that is that he already has considerable power to address the issues he was complaining the judiciary were not helping fix.
The failures of the police and the prosecution service are his to fix.
And if the law allows sentencing which he considers as too lenient he has the power, as leader of a Parliamentary majority, to fix that directly without the need to unlawfully pressure the judiciary. It is true, as the prime minister lamented yesterday, that judges tend to decide based on precedent and if a crime has traditionally been treated with leniency they tend to continue to do so. But he can change that. Because precedent is a secondary consideration. What matters far more is what the law says.
If he is unhappy with the way judges prefer to float on the lower end of a range of punishment that the law allows them, the prime minister can go to Parliament and tighten that lower range. If punishment for farting in public is, at law, between a year or ten in prison, and Robert Abela is unhappy that judges tend to hand down one-year sentences for farting in public he can go to Parliament to change the punishment range to ten years to twenty instead. No need of secret meetings. No need of rebel rousing speeches. It’s the job he’s paid to do.
Why doesn’t he do it? They go to Parliament to tinker with the rules all the time. Why the spectacle of pressuring magistrates in this case?
Because, stupid, this is not about crime or its prevention at all. This is about the prime minister showing off how powerful he is, even beyond the rather imperial power the laws of the land already give him qua prime minister. He wants to show his powers have no limits and if he wants to grab the phone to tell a magistrate what to decide he can and he won’t mind gloating about it.
I have been eulogising at democracy’s funeral for 5 years and I forgive you for not taking me seriously. But the agony is long, and Labour’s knife is blunt. While the applause goes on, they’re fine. As long as even magistrates remember who the boss really is.