The editorial of Times of Malta last Wednesday was titled ‘Impeachment turns into farce’. The word impeachment has, these days, been the predominant vernacular in every medium of communication in the case of the removal of a judge. Is the constitutional process that comes into play really one of “impeachment” or one of “removal” of a member of the judiciary?

The relevant provision in the Constitution (of Independence, 1964; of the Republic, 1974) is article 97(2), which lays down that “a judge of the superior courts shall not be removed from his office except by the President upon an address by the House of Representatives… on the ground of proved inability to perform the functions of his office… or proved misbehaviour”.

The equivalent or similar provision, at least in the Constitution in force, is article 100(4) with regard to magistrates and article 48(3)(b) in respect of the President of Malta.

The Constitution explicitly and unambiguously refers to the removal and not to the impeachment of a judge by the House of Representatives.

The mention of impeachment is erroneous and misguiding in the matter of Malta’s legislature on two (historical and institutional) counts.

In the first place, the principle that a judge would remain in office quamdiu se bene gesserint, so long as he carried out his duties dutifully, was one of the notable reforms related to a judicial re-organisation that Sir Thomas Maitland, first Governor of Malta (1814-1825), had introduced at the dawn of British rule on the island to secure the independence of the judicature and a fair administration of justice.

Article 97(2) of the Constitution is a replication of another clause that has appeared in previous Constitutions from the achievement of responsible government in Malta in 1921. The phrase removal was repeatedly the key word in the germane chapters concerning the end of a judge’s tenure of office for “proved misbehaviour” by the legislature (Legislative Assembly/Senate or Council of Government or Parliament) in the Constitutions of 1921, 1939, 1947, 1959 and 1961, whether the articles at issue were entrenched at different tiers or else were expugnable by a simple majority or by two-thirds of the members of the legislature and whether a judge was so challengeable.

The term impeachment has been totally alien to Maltese constitutional law – the Constitution per se and other constitutional legislation – ever since the system of forced removal of a judge by the legislature in Malta was embodied into the fundamental and organic law of the country.

Secondly, and more concretely, the process of impeachment that was followed for centuries in the British Parliament, and that was applied unconditionally to any person from the rank of peer downwards who was accused of treason and high crimes and who was not subject to prosecution by ordinary means, necessitated the participation of the two chambers of the bicameral legislature concerned where they formed a compliment but each took an independent and distinct role.

The House of Commons had to initiate the proceedings as a prosecuting House while the trial had to take place within the House of Lords as a trial House.

Similarly, the House of Representatives would be the accuser while the Senate would con-vert itself into a court for the necessary prosecution in the American system.

The Constitution of Malta of 1921, which did contain a two-cameral system (Legislative Assembly and Senate) within the autonomous albeit coterminous, local or internal government (“Maltese Government”) within a diarchy and specifically mentioned that the two Houses had to make their “prayer for the removal of a judge… in the same session” (article 55(2)), nowhere did it make reference to impeachment, let alone to a dual scheme where the Lower House assumed the role of a prosecutor and the other as a tribunal. They acted conjointly in all roles.

The mention of impeachment is erroneous and misguiding

The 1921 Constitution establishing responsible government in Malta made it amply clear that in the matter it did not follow at all its model – the British Parliament.

The Commission for the Administration of Justice was set up in the wake of the amendments of 1994 to the Constitution to determine whether a judge is or is not to be brought before the House of Representatives. It does have the power to investigate, find and, ultimately, report to the House of Representatives on the motion for the removal of a judge.

However, the Commission is not a committee or extension of Parliament. It is rather an entity under chapter 8 of the Constitution. It holds its powers outside the legislature.

One should not even dare to confine the use of the word impeachment to the Commission’s powers and findings as one would still be misplacing it within the wider context of the whole proceedings and the legislature.

Parliament carefully refrained from applying the term to both the Constitution and the relevant ordinary legislation – Act XI of 1994 – when it came to the setting up of the Commission.

The term impeachment remains extraneous to the whole process at all levels of our constitutional legislation from the beginning up to the end. The Commission is, then, not tantamount to a parliamentary forum and does not make Parliament a two-chamber legislature within which an impeachment could take place.

The nomenclature impeachment has come to the fore via the written and audiovisual media that have overstressed it from long before the Commission of 1994.

It is incorrect and misleading press jargon, not a constitutional and technical expression, and does not make sensewithin the historico-legal, constitutional and institutional contexts of the Maltese legislature and legislation.

It has, unfortunately, found its way nicely, as if sacred truth in regard to the functions of Parliament, in a couple of theses that have been submitted in partial fulfilment for the degree of doctor of laws at our Alma Mater.

Advocates and lawyers, particularly those immersed in politics, have to be the first to give a lesson by erasing the terminology impeachment and all its cognates from their patois whenever they make reference to the forced termination of a judge by the House of Representatives.

Raymond Mangion is head of legal history and legal methodology, Faculty of Laws, University of Malta.