Life on the island past the electoral truce has been anything but boring. There are times when the concept of boredom can begin to seem to be an unattainable desirable bereft of the negative connotations that normalcy and monotony might normally carry. These are the kind of times best described as “interesting” in the Chinese curse sort of way. Just as the political parties seemed to be settling into a faux festive period “truce” from the campaign that had never begun we get a wave of news items that keep tongues wagging, the media reporting and above all the parties a-busying.
Top of the list of interesting news items – beyond the extensions of Dalligate and the mafia style executions – is reserved for the judiciary and in particular for two of the members of our judicial bench who are in the eye of the storm. Judge Farrugia Sacco is in the throes of a renewed battle for his seat having had a new attack from the IOC – determined to take steps against those of its members who exposed their institution to the risk of disrepute. Another Judge, Ray Pace, is now in prison awaiting trial with the serious accusation of bribery pending above his head.
It is an ugly period for the legal branch of our separated powers and the two stories have thrust another dagger into the already weak levels of faith that the judiciary enjoyed with the general population. Trust and faith in the law is fundamental within a democracy and this kind of weakness seriously endangers the workings of our constitutional mechanisms. That is also the basic reason why the constitutional checks and balances that should come into play must work with clockwork perfection in order to ensure that the very foundations of the legal system are still intact. Public trust is the one and only priority.
Farrugia Sacco
Which brings me to the role of our political parties. We first had the Farrugia Sacco debate. In this respect the “Ceasar’s Wife” argument that I had touched upon in the Dalligate saga comes back with full force when considering how to proceed with a member of the bench who has become embroiled in such an issue. The key concept in the “Ceasar’s wife” principle is the idea of “having to be above suspicion”. This is not a question of actually being guilty but of having to appear beyond the mere suspicion. In this light, and without even making any further considerations on what actually went down in that hotel room where the Olympic tickets were held, Judge Farrugia Sacco should have long tendered his resignation in order to deal with the ghosts and suspicions peacefully and individually without carrying this baggage around in his role as a judge.
Is it so straightforward? Yes. Did we need the Ombudsman writing to the President? Not really. Even before the Commission for the Administration of Justice was involved Judge Farrugia Sacco should have done the right thing of his own accord. By refusing to do so he should have forced the hand of our politicians in parliament who are the guardians of an important constitutional mechanism with which they have been entrusted: the process of impeachment. Which is where my first beef with Joseph Muscat arises. His position on the Farrugia Sacco issue is that we must wait for the Commission for the Administration of Justice to do its work before actually impeaching the judge. Like hell we do.
Joseph Muscat’s attempt to distinguish between politics and the judiciary is an amateur approach to our constitutional politics and a dangerous situation whereby the leader of the opposition is openly reneging on his DUTY towards citizens to act as ultimate guardian of our constitutional rights. A judge in Farrugia Sacco’s situation loses his legitimacy to sit in open judgement of others in no matter what area of law. If he cannot see that of his own accord then it is up to the politicians to act as guardians of our prerogatives as citizens. Once again Muscat is doing what he does best – acting as Pilate and washing his hands of a decision that he is duty bound constitutionally to guarantee. Weak.
Pace
The Ray Pace matter seems to have brought Muscat to his senses. Suddenly the judiciary is no longer a matter for the Commission for the Administration of Justice. Admittedly the case seems to be more open and shut given the context though there is no reason to distinguish between the two when it comes to the Ceasar’s Wife test. In this case the issue of whether Ray Pace is above suspicion is more glaringly obvious – the arraignment and arrest make a decision in this respect all the more straightforward.
What did impress me was the attempts – as of early morning – by Evarist Bartolo to turn the issue into a political battlefield. He posted a link to a report of the arrest on facebook with the words “Ara f’hiex gabuh pajjiz” (Look what they have brought the country to). Incredible. To begin with it is obvious to any free thinking individual that when appointing a judge you can never foresee his turning to the dark side (to use Star Wars terms). How Ray Pace’s alleged actions are imputable to the current government and its policies beggars belief. Sure enough Evarist deleted any comments I made on the particular status – no worries I have snapshots on my iPad (once bitten, twice shy – right Jeffrey Pullicino Orlando?).
Thankfully the Labour party could not do otherwise than agree to an eventual impeachment of Ray Pace. Muscat did add that a new Labour government would review the methods of appointment of judges. No harm there right? Definitely not. Given that a rebel MP recently made it part of his personal agenda to point out inconsistencies in the field of the judiciary it should not come as too much of a surprise to any of us that sooner or later Labour would jump on that particular part of the wagon. A knee-jerk reaction it remains though and I very much suspect that we are in for a bit of patchwork and tweaks that would still accomodate the PLPN manner of appointments.
And here is another crux. I posted a status on facebook pointing out that given their record Labour would best reform the system by staying out of the appointments system. Of course the world is full of literal minded partisans who would be eager to point out that the same system that gave us Farrugia Sacco (Labour) and Pace (Labour) also gave us Arrigo (Nationalist). Which makes it allright then does it not? My point was meant to be sarcastic – Muscat’s party does not have much of a record to go on when it comes to appointments and the fact that the nationalist party too has had its fair share of nutty appointments is neither here nor there.
Judiciary
Do you remember how recently a government proposal to increase salaries for the judiciary was shot down by a labour party? The Labourites had had a sudden attack of “consistency” by arguing that if the MPs (political) could not get a raise (will we ever forget the 500€ raise?) then neither could the judges and magistrates (judiciary). Because obviously the Muscat idea that politics and judiciary should not be mixed did not apply at the time.
There seems to be a general consensus, even within the practitioners in the field, that our judicial system is due a major overhaul. The criteria for judges and magistrates appointment remain the number of years in practice. When a non-court practitioner was once proposed for the bench, court practitioners were up in arms claiming that his years of practice did not count – an odd reason if there was one. From what I can gather the conventional way to become a magistrate/judge until now has been to manifest your intention in the right circles and hopefully… if you were insistent enough and of the right hue… you would get your turn eventually.
The system has produced many a good magistrate or judge but it has flaws. It is haphazard and based on the wrong criteria. I am also told that in some cases what was needed to get onto the bench was a track record of an attempt at running of parliament. Once you got your brownie points in that field then you would have proven loyalty and a position on the bench would follow. Again. It is not the rule and is not across the board. The problem lies in the lack of clarity and in the lack of modern, clear criteria as to why a person should make it to the bench.
In other nations, like Germany, you actually study to get to the bench – not to become a lawyer first. Interpreting and applying the law requires a different set of skills than pleading before the court. Academic knowledge, logical and linguistic skills as well as good analytical methodology and organisation form part of what could be a key set of indicators in the future. A place on the bench should not be a prize for time served – let alone loyalty.
The kind of reform that is required is the real area where politics and the judiciary should definitely not merge. The legal world in Malta is not in a nice state. The kind of reform that is required is a big learning curve across the board from the courts, to the faculty of law and its product, to the support services to the long arm of the law that are the police. Education is a key factor – education to start with and education in the continuing sense.
Unfortunately I have to end this long post with the usual pinpointing of the heart of the problem. Our legal system has also been affected by the rot that is the PLPN method. Appointments and laws through the years are made with the parties and their survival in mind. It is incredible that in this day and age we can think in terms of “their” or “our” judge. It is mind boggling that judicial appointments have to be thought of in this manner and the legal community has much to feel at fault about in this respect. I am not unaware of the irony that our parliament has a heavy representation of lawyers within it and that this being the case it will be even more difficult to find people prepared to think out of the box.
When Muscat wakes up to the reality of the matter and stops thinking in populist terms, when Gonzi’s PN quit the faffing around and decide to grasp the bull by the horns I should hope that a huge debate will ensue and that within an appropriate forum, with the appropriate experts, the much needed reform of our Judicial & Legal systems is embarked upon with earnest.
Remember. We are all servants of the law, that we may be free.
5 replies on “This honourable judge”
Is the principle of the “presumption of innocence” not applicable to justices?
Just sayin’!
You’re confusing two issues CJohn. Nobody is saying that the principle of “presumption of innocence” does not apply to judges. Both Farrugia Sacco and Pace are entitled to that presumption within the respective forums. In the case of the latter it is the classic presumption at criminal law. Farrugia Sacco’s case involves the mechanisms of the IOC but his position was already deemed untenable a while back when the potential conflict of interest with his status as a judge had been pointed out (remember Judge Antonio Mizzi resigned from his position at the helm of the MBA).
What I have described as the “Ceasar’s Wife” principle requires that persons in high positions (judges, commissioners) keep themselves “above suspicion” and should any such suspicion arise it is up to them first and foremost to resign their position until their name is cleared. To resign until such moment as the suspicion is cleared does not mean that the presumption of innocence does not hold good.
Dear Jacques,
A very good article. You have made a very clear and in-depth analysis of a situation that has existed for a long time.
I am not convinced that matters will really improve. Do you feel the same?
Jacques, with due respect, there is only ONE issue here: Both Justices are being denied their day in Court … and judged, in the Court of Public Opinion, according to the whims of the prevalent public sentiment.
The concept of adhering to the Caesar’s Wife-principle is the stuff of politics (of which, I’d rather have none). Suspicion? Whose?
In today’s Times (of Malta), Dr. Gonzi is reported as saying: “The country needs to be assured of the best possible conduct by members of the judiciary.” — excellent illustration of the CW-principle!
“Best possible conduct”? Surely, the PM “is trying to be funny”, to use Mr. Justice Farrugia Sacco’s barb.
We have to decide if we are a civilized society which lives by the Rule of Law (in whichever way one defines that term), or by the rule of the (old Maltese) Mandraġġ, where its illiterate denizens lacked erudition, but excelled in eloquent irrationality.
The principle of “Ceasar’s wife” is a controversial if not also a dangerous principle. It can lead to a judge or other person resigning on mere suspicion. If later the allegations turn out to unfounded, would a former judge or other official be reappointed?
I think it is better to follow the law which states that a judge can be removed for proven misconduct or incapacity. I would say that the misconduct or incapacity must be serious in order to justify his removal.