Judicial Reform

We've probably heard it all before in 2001; that the judiciary is in need of a complete overhaul. Nothing much has really changed though, if at all. During that time I was but 14-15 years old, probably studying O-Level Chemistry and Biology, growing my hair, headbanging to Opeth and Beheaded and not giving too many shits about current affairs. In that rebellious spirit I was adamant to steer away from law, aiming for Medicine & Surgery instead, because it was bloody intriguing (pun intended). Horns up and all that. 

But times changed and the "family footsteps" I have indeed followed. Just one tiny step away from being a fully-fledged lawyer interested in litigation, the very foundations of the justice system have been rocked once again (can't wait to see next year's B.Comm or Architecture & Engineering buscade banners) and this time it stings

So here's my two-cents about judicial reform. 

A Universal and Objective Truth 

First and foremost, no system will ever guarantee foolproof protection against corruption and bribery. The vice of corruption in inseparable from big fat human mistakes which not only destroy one's career but - far worse - one's integrity, reputation and honour. Having said that, there may be ways that can offer a greater guarantee of appointing more suitable members to the bench. Or at least, certain manners of appointment may offer a greater degree of public trust in such a vital institution. 

The Current System 

The current system, enshrined as it is in our Constitution, provides that both Judges and Magistrates are appointed by the President in accordance with the advice of the Prime Minister. In other, words, Judges and Magistrates are appointed by the Prime Minister of the day. In other other words, Judges and Magistrates are either appointed by a Nationalist or Labour administration. These are, pretty much, political appointments limited only by certain factors, such as that Judges may only be appointed after he or she has practised law  as an advocate in Malta for an aggregate of twelve years (seven for Magistrates). Nonetheless, the allegation/insinuation/perception (call it what you will) that Judges and Magistrates are either blue or red-eyed is not that wide off the mark in the whole scheme of things, even if they have to exercise their functions and conduct themselves (both judicial and personal - ideally) in a manner free from all political bias or connections whatsoever. For the maxim that justice must not only be done but must also be seen to be done, the current system does not offer such a solid guarantee. Furthermore, the current system offers no guarantee of appointing members to the bench that are truly well versed in the law, its interpretation and it's application to the facts of a case, resting as it does on a largely subjective decision of the Prime Minister and, presumably, his Cabinet. 

Democratisation of the Judiciary?

What if we were to adopt a system whereby members of the judiciary are democratically elected by a free and sovereign people? This would surely take the decision out of the politicians' hands and offer the greatest degree of public trust possible. I mean if a majority of people directly elect members of the judiciary then they must surely have trust in him or her. All pretence of subjective and political appointments would wither away. But the pitfalls of this system, promising though it may sound, are larger than its positive aspects - at least in my opinion. First of all, the judge would him or herself become somewhat of a "politician" susceptible to lobbying by major interest groups. We would have the Judge or Magistrate of the Chamber of Commerce or the Hunting and Trapping Federation to whom he or she would owe a certain fealty. The more wealthier lawyers, with the greater connections would surely have a greater advantage - even if he or she is a nincompoop when it comes to the law. This could be tempered by disallowing all forms of advertising, lobbying, endorsements and donations in the case of judicial elections - but that, in turn, could give rise to free speech issues. Secondly, holding nation-wide elections in a system where judges and magistrates are appointed "for life" (or rather until they attain the age of 65 years) would surely give cause to logistical and financial headaches. Whilst this is no reason to hinder democracy, it is, nonetheless, a real problem.

The Academic Judge

Another system, followed in certain nations of the Continent, such as Italy, Germany and Spain, is based on actually studying and obtaining a degree/doctorate (whatever) to become a judge or magistrate. This would require the creation of a specific "Judiciary Course" whereby holders of a law degree or doctorate would further their studies to become judges or magistrates in a competitive academic system. Here again, and if the selection process is truly fair and based on merit, the decision is taken out of politicians' hands. This is an interesting way in which to solve current shortcomings, for in one fell swoop it would decapitate political subjectivity and guarantee that the persons sitting on the bench are more specialised in legal interpretation and application. The problem here, however, is that if one where to immediately further his studies to become a judge or magistrate then he or she would be deprived of any *real* court practice. He or she would be more of an academic rather than a lawyer - not that there is anything really wrong in that , but as any budding lawyer will tell you - there is a veritable yet metaphorical ocean separating life at university/academic theory and the real nitty gritty of court practice. It is much like getting out of the frying pan and into the fire - at least until you manage to settle in. This anomaly could be tempered by keeping the twelve (or seven) years court practice requirement before being eligible to enrol for such a course; plus ensuring that any such judiciary course requires mandatory practice as judicial assistant or associate judge for at least one, if not two, years. Another issue would be that such a course would have to be very restrictive and, ultimately, competitive - opening only when a vacancy is imminent - and from which only the very best may pass. Major problems would arise if no one is interested in the job, or if only one candidate would apply. Nonetheles competition, even if nasty, is healthy. This is a system which one should keep in mind. 

The Representative Judge

Another way round to reforming the judiciary is one which I have previously advocated here. Whilst it still leaves the decision of appointment in the hands of politicians, it is taken away from the Executive and vested in the Legislature. In other words, members of the judiciary may only be appointed in the same manner by which they are impeached; that is by a two-thirds majority of the House of Representatives. Such a system would ensure a broad-spectrum of support and approval by all parties in the House and is surely a form of semi-democritisation of the current system. The vote could be preceded by a specific Parliamentary Committee, chaired by the least partisan person possible (maybe the Speaker or the President of the Republic himself) which nominates candidates in conjunction with the advice of the Commission for the Administration of Justice, the Chamber of Advocates and, why not, the Faculty of Laws (comprising the Dean and Heads of Departments). Politics would not be completely avoided and headaches/delays may arise if major disagreements exist - but it is a leap forward from what we currently have. 

Thorough Reform

Reform, however, cannot start and end with the manner in which we appoint members of judiciary. It has to be thorough and from the bottom up. Furthermore, judicial reform must be accompanied with major political reforms. Since Franco Debono said so much about this and, love him or hate him, he is right - I will spare you further reading.

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One Response to Judicial Reform

Anonymous said...

It is agreed that any reform of Malta's judiciary must be comprehensive and that any process of appointment to high judicial office must balance out questions of scrutiny (is the individual capable), transparency (is the individual compromised by their associations) and accountability (who makes the selection). These should proceed by nomination, a confirmation process, and all of this out in the open so that the public can follow the various stages and appointees be made to give an account of themselves and demonstrate their suitability for office.

As you rightly point out, however, this can only be put in place by an overhaul of Malta's constitutional arrangements which contain barely a nod to the principle of separation of powers.

Surely this is what must be argued for, together with an overhaul of the Law studies degree at the University of Malta. Given your apparent experience of this last, the Maltapamphleteer wonders if you will make this a topic of a later blog post.

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