Adrian Delia’s recent appointment of his lawyer to the highest justice organ – the Commission for the Administration of Justice – is likely to arouse more muttering now that a constitutional challenge to the similar appointee of the former Prime Minister’s lawyer has begun to work its way through the Constitutional Court.
The PN leader’s move is being seen as incomprehensible in the context of denunciations of Joseph Muscat’s appointee in the past, Pawlu Lia, an appointment that’s now targeted in a Constitutional lawsuit by Franco Debono.
The Commission is tasked with the discipline of errant judiciary and lawyers, as well as assessing, through a subcommittee, potential candidates for the judiciary.
Half of its 10 members are members of the judiciary – the Chief Justice, two judges and two magistrates – and among the rest are two members appointed by the Prime Minister and the Opposition Leader for four years. According to the Constitution, these appointees have to “enjoy the general respect of the public”.
Given this proviso, analysts have questioned how the lawyers of political leaders, who would be involved in controversial court cases on their behalf, could command wide respect across political lines.
The previous appointee of the PN leader on the Commission – who had been appointed by former PM Lawrence Gonzi and reconfirmed by former PN leader Simon Busuttil – was a widely respected justice grandee: the retired judge Victor Caruana Colombo. In his stead, Delia has now appointed lawyer Vincent Galea, who has been serving as his legal representative.
Lia, Muscat’s appointee, also similarly represented him and other senior Labour figures in court. Lia’s presence on the Commission has led to muttering in legal circles over the years, as well as regular controversy and criticism in the press.
His appointment is now subject to a Constitutional lawsuit that has generated significant interest in the corridors of the court. The lawsuit is predicated on jurisprudence on the matter of the European Court of Human Rights – jurisprudence that the lawyers who prepared the application have latched onto to make a case about fair hearing safeguards in European Convention of Human Rights and Maltese Constitution. In the lawsuit, Franco Debono and his colleague Amadeus Cachia have teamed up with Michael Tanti Dougall.
They have posited that their client cannot have fair hearing guarantees given that his opponent’s lawyer is Lia. The eight-page lawsuit builds a case on quotes of judgments of the ECHR, Europe’s top human rights court.
The legal exposition revolves on the rules of what’s known as objective impartiality. This is the counterpart of subjective impartiality – a kind of prejudice that arises from the adjudicator’s personal prejudice on the matter under examination. This can be due to familial connections, political partisanship and manifest inclination to value judgements or other prejudices (racial, religious, and so on).
Objective impartiality, on the other hand, is a kind of prejudice that arises from situations in which judicial impartiality cannot be guaranteed, mostly due to the matter of appointment or removal of judges and the composition of the appointing or removing bodies.
The ECHR has been making emphasis on objective impartiality for many years, and last year the EU’s European Court of Justice also ruled decisively on the matter.
The ECJ, in its judgment last June, held that “guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.”
It then coupled these safeguards to provisions on fair hearing and effective remedy in the European Convention of Human Rights, the document that governs judgments by the ECHR.
The latter, in a seminal judgment in 2013, held that the presence in that case of the State prosecutor “on a body concerned with the appointment, disciplining and removal of judges creates a risk that judges will not act impartially in such [court] cases [that prosecutors participate in] or that the Prosecutor General will not act impartially towards judges of whose decisions he disapproves.”
A source familiar with deliberations of the ECHR in Strasbourg who preferred to remain anonymous said that, in Malta, the presence of all the actively litigating lawyers on the Commission is equally or more troublesome for the same reasons.
In Malta’s situation, the errant judiciary is investigated by the Committee for Judges and Magistrates, which is presided by three members of the judiciary. But if a particular judge or magistrate appeals a ruling of the Committee, the appeal is heard by the Commission on which three litigating lawyers now sit – Lia and Galea, as well as the president of the Chamber of Advocates Louis de Gabriele. The latter’s presence is seen as more acceptable because as president of the Chamber his role is more formal and constitutionally embedded.
In the lawsuit filed before the constitutional court, the applicant raises other arguments. The point is made that, in law, the Commission has the same powers as the First Hall and that the applicant has no way of knowing whether the Judge who will adjudicate the case ever appeared in front of the Commission on disciplinary proceedings.
Moreover, he has no way of knowing whether that particular Judge sits on the Commission, something that could potentially give him an element of closeness to the lawyer of the other party, Lia, which, as pointed out, was appointed to the Commission by ex-PM Muscat.
The applicant has no way of knowing because there is no public information on which Judges and magistrate sit on the Commission. Moreover, all disciplinary proceedings in front of the Commission and its subcommittee are secret.
This raises wider questions about the Commission’s operative secrecy that has long been criticised by senior justice experts, including law professor Kevin Aquilina. The Chief Justice also publicly said last October that the Commission’s secrecy, as far as proceedings against the judiciary are concerned, is a practice that belongs to a bygone era.