Anyone who has watched the local news in Malta will sooner or later have come across a swearing-in ceremony. The Attorney General administers the oath in the presence of the President, Prime Minister, Chief Justice and Minister of Justice.
It’s all very grand. But behind the public display there’s an extremely important principle, and a correspondingly solemn professional ethic incumbent on the new judge. So to be absolutely clear, I shall reproduce the relevant section of the oath for everyone’s benefit:
“I [name] do swear that I will faithfully perform the duties of Judge without favour or partiality, according to justice and right, and in accordance with the laws and customs of Malta, to the honour of God and the Republic of Malta, and that I will not hold, either directly or indirectly, any communication with any suitor in any of the Courts, whether superior or inferior, his Advocates or Legal Procurators, or with any other person on behalf of such suitor, in regard to any suit pending or about to be commenced or prosecuted in any of the said Courts, except in open court, saving the cases expressly provided for by law; and that I will disclose in open court, and make known to the President of Malta any such communication as may be made to me. And I do further swear that I will not act, either directly or indirectly, as an Advocate, or arbitrator, nor give in any case counsel or advice to any person in regard to any suit already commenced or to be commenced in any of the said Courts, saving the cases excepted by law, without the permission of the President of Malta first had and obtained upon an application to that effect. So help me God.”
Judges (and here that includes magistrates) promise therefore to be impartial.
I dare say most of them are – or at least try very hard to be. But beyond the fundamental issue of favour (i.e. partiality and impartiality), there is the not so trifling matter of ‘communication’. Often, it is this which colours our perception of a judge’s impartiality (or otherwise). Perception being everything.
It goes without saying that when you are in court, you need to feel safe at all times. There are many judges who make you feel just that. They are poker-faced, conduct their courtroom in a serene manner and exude a sense of justice. This should embrace both sides.
The only time a judge should express himself is within the formal context of a judgment or point of law. Anything else is superfluous
But there are judges with less aplomb – who express themselves too loudly and inappropriately, in a manner that might appear prejudicial to the proper administration of justice, even if it isn’t.
If we agree as a general principle that the less said is usually the better, it follows, in a courtroom especially, that banter is never a good idea and can all too easily cause unnecessary concern. The only time a judge should express himself is within the formal context of a judgment or point of law. Anything else is superfluous. Even reprimanding someone for his dress code should be left to the marshals, who will have been long appraised of the judge’s expectations.
On a more serious note, I have often heard members of the public express dismay at what they felt was inappropriately cordial interaction between the judge and the prosecution.
It works both ways of course. The entertainment of defence lawyers and police officers in (and out) of chambers can create unnecessary smoke, even if there’s no fire, while prosecuting officers have been known to discuss the merits of a sub-judice case. The really worrying thing here is that this is considered completely normal in our circles, and not worth flagging up. It shouldn’t be like this.
It is precisely what a judge promises not to do – it’s the sort of behaviour S.10 of the Code of Organisation and Civil Procedure specifically proscribes. You see, when we think of ‘communication’ in terms of the law, we imagine some sordid meeting in a back street, whereas the most insidious form it takes is that which is sanctioned daily. “Communication with any suitor in any of the Courts… his Advocates or Legal Procurators, or with any other person on behalf of such suitor, in regard to any suit pending” includes anyone and everyone, be it a humble police inspector or the Commissioner himself, the Prime Minister or a fellow judge.
This article is one I’ve been meaning to write for years. The fact that I am writing it today is purely incidental and I am most definitely not referring to any judge or person in particular. Or if I am, he’s now retired, having served as a magistrate and later as a judge between 1972 and 1998. He was by the way a stickler for doing things the proper way.
That ex-judge is my Uncle Victor (Caruana Colombo). I’m not entirely sure he’d approve of my writing this, but I suppose some things just have to be out there, in the public domain, and aren’t ours to hoard. So here goes.
I was once privy to a letter my uncle sent to His Excellency the then President Anton Buttigieg in April 1975, informing him that, as a serving magistrate, he had received a telephone call from someone identifying himself as a police inspector wishing to discuss an issue arising out of a particular court ruling.
In all likelihood the call was well-intentioned and meant to circumvent a problem (the prosecution was unwilling both to abide by the ruling and exhibit certain documentation in open court). Another magistrate might have had the meeting, but not my uncle. Hence the letter to the President – the judicial oath to the letter (indeed!).
In a country which wastes so much time berating the appointment of judges with political pasts and raking over conflicting historical narratives, I feel more attention should be devoted to their present. That is to say, to their conduct in office.
michelaspiteri@gmail.com