Chief Justice and Justice Minister now gatekeepers to complaints against the judiciary

The Commission for the Administration of Justice last autumn began to enforce a law barring people from complaining against members of the judiciary, a probe into the outcome of three complaints in the past year shows.

The Commission’s operations are opaque. It responded to questions on the matter saying it “could not give the information requested” because its procedures are “in camera [closed or secret].”

The Commission’s chair is the President and the deputy chair is the Chief Justice.

Legal sources contacted by The Shift expressed dismay and surprise at the move – and the 2016 law that underpins it – which curbs the effective remedy available to people who are victims of judicial misconduct.

Former European Court of Human Rights Judge Giovanni Bonello told The Shift: “It would seem that only the Chief Justice or Minister are given the discretion (not even the duty) to set in motion the scrutiny of a member of the judiciary suspected of wrongdoing – not the victim, not a member of parliament, not any interested person.”

Bonello was referring to a provision in the Constitutional insertions passed unanimously in parliament on 5 August 2016 which specify that sanction proceedings against a member of the judiciary “shall be commenced” upon “definite charges” in writing made by the Chief Justice or Justice Minister.

This restriction, which has only recently begun to be enforced, puts the Chief Justice and Justice Minister as gatekeepers to people’s avenue of redress if they are victims of judicial abuse.

Although in cases of systematic court injustice and judicial bias, including lack of fair hearing, victims can turn to the Constitutional Court, in cases where the abuse is less systematic and the misbehaviour is a breach of the Code of Ethics, the only practical way to hold that particular member of judiciary to account is through a complaint.

The Shift’s probe found that the Commission did proceed on specific complaints filed by people last year.

In one case, the president of the NGO Birdlife had complained over remarks made by Magistrate Joe Mifsud on changes to the legal mesh size of trapping nets prompted by a ruling of the European Court of Justice. In this case, the complaint led to a reprimand a year ago (which was overturned on appeal, according to a source, due to a technicality).

In another case, the lawyer Lynn Zahra made a complaint against then-magistrate (now judge) Francesco Depasquale alleging “abuse of judicial power” over an “unlawful warrant of arrest”. The Commission wrote to Zahra on 19 October 2019 that “your complaint was treated according to the law and it was decided that there was no scope for ulterior procedures”.

Yet last week the NGO Repubblika published an email in which lawyer Andrew Borg Cardona refers to a letter by the Commission dated 8 November 2019. At the time, Borg Cardona and Repubblika had complained against Judge Giovanni Grixti over a decree that overturned a decision to launch a magisterial inquiry into the privatisation of three State hospitals to Vitals Global Healthcare. The Commission had replied that a complaint could only be made by the Chief Justice or the Justice Minister.

This makes the Commission less accessible to people, increasing further its opaqueness at a time when greater self-regulation among the judiciary is leading to calls for more – not less – transparency. Under the Bill passing through parliament now, the power to impeach a member of the judiciary will shift from Parliament to the Commission.

The overarching aim of the Commission is to raise court standards and the quality of the administration of justice, but its lack of transparency makes it difficult to assess its performance.

This has led to low confidence in the Commission in legal circles, and even lower public awareness of its existence and functions.

The secretiveness is such that the Commission did not provide figures on how many members of the judiciary were disciplined since the setting up of the investigatory subcommittee after the Constitutional additions of 5 August 2016. Neither did the previous Justice Minister, Owen Bonnici, last year in Parliament.

In response to questions by the PN MP Claudette Buttigieg at the end of May 2019, Bonnici merely referred to an answer of a different parliamentary question nine years before that had no relevance to the question being asked.

Last October, former Chief Justice Joseph Azzopardi had criticised the media for reporting on proceedings against members of the judiciary while simultaneously admitting that the practice of secret proceedings was outdated. He had called for change to the law.

The Constitution specifies that hearings are only held in public upon the “request” of the magistrate or judge undergoing proceedings.