Our judges are betraying human rights to protect the powerful at all costs

Since 1961, Malta’s Constitution has made respect for human rights its paramount value, entrusting the judiciary to act as their guardian. Since 1974, the supreme law has positioned human rights in its Article One mission statement: Malta is a republic based on respect for human rights. Hallucinations.

The constitution delegated the judiciary two, not one, responsibilities where human rights are concerned.

First and foremost: it directed them to prevent their threatened future violation. This is the judiciary’s primary function: to block in advance any violation of human rights that is ‘likely’ to occur in the future (Article 46).

Then, the constitution conferred on the judiciary a secondary function: to redress the victims of actual violations of human rights. The constitution, no doubt misguidedly, considered it wiser to keep the ship afloat, rather than letting it sink and trying to salvage it after hitting the seabed.

Did this clear constitutional mandate ever reach our judiciary? Judge for yourselves. I have read a hundred constitutional judgments asserting the courts’ secondary function – that of redressing the victims of violated human rights. In 64 years, I have yet to read one single judgment upholding the courts’ primary function – that of preventing the likely violation of human rights in the future. Not one.

In fact, the courts have almost always hollered the very opposite, with pompous vacuity. They refuse, as stridently as they can, to grant any precautionary measure to prevent future likely breaches of human rights. And they proudly flaunt their dereliction of duty by writing it down in fluorescent ink. They will not settle for being wrong. They want to be wrong at the top of their voice.

It is human to make mistakes, and judges are flesh, blood and, sometimes, vertebrae. In human rights lawsuits, judges can either err against the victim of the violation or they can err against the powerful predators of human rights. Guess what side their error invariably favours? But that’s pure coincidence, now, isn’t it?

Human rights can only be violated by agents of the state. The victims are invariably the vulnerable and the unprotected. Now you don’t expect some Maltese judges to do anything to prevent the agents of the state from threatening to violate the human rights of the helpless, do you? The beneficiaries of this betrayal of the judiciary’s foremost responsibility are always the deviant authorities, the ministers, the arrogant power-mongers.

Stopping them would put you at risk of not getting your iced bun after you retire.

Our wise codes of procedure have all the proper mechanisms in place to prevent future violations of rights. They are called precautionary warrants of prohibitory injunction, which approximate, in contemporary jargon, to interim measures.

Our midgets in gowns have peppered their judicial mania to protect the powerful at all costs with idiotic mantras which they manically pluck out of thin air: “Interim measures are extraordinary remedies not to be used except in exceptional circumstances.” Jaqq. “They can only be granted to prevent irreparable harm.” Jaqq. “They should only be issued in cases of extreme urgency.” Jaqq. “The threat must be imminent.” Jaqq.

This spineless compulsion to shield the errant powerful has been on show in many, too many, cases, but possibly the most nauseous was Sultana. Jaqq to the power of infinity. But it was not a swallow in winter. Jamburu Jara, Anthony Xuereb, Tarcisio Borg and many, many others sing from the same hymn book. Read Maltese human rights judgments if you want not to run short of despair.

Our supreme law wanted our constitutional judges to be the most powerful in the whole jurisdiction. To prevent future violations of human rights and to redress actual breaches, the constitution showered judges with unlimited powers: “to make such orders, issue such writs and give such directions as they may consider appropriate” to ensure the dominance of human rights.

Our midgets in gowns have peppered their judicial mania to protect the powerful at all costs with idiotic mantras which they manically pluck out of thin air- Giovanni Bonello

No other judge was ever given such unlimited powers – to prevent in advance any breach of human rights. And, still, these self-neutered pigmies prefer to plead impotence. This is pure treason against the constitution, camouflaged in misinformation.

Not all the judiciary has found irresistible this craving for brownnosing. I single out Madam Justice Lorraine Schembri Orland who absented herself from this carnival of indecencies. And a few, too few, others.

But the bootlickers rely on Strasbourg case law, don’t they? Yes, they do. They only do this to leave no one in doubt what heights their ‘convenient’ ignorance, their gutlessness and their innate inability to reason have reached. The Maltese Constitution imposes on judges the paramount duty of preventing in advance the future violation of human rights. This is their very first responsibility. The European Convention, on the other hand, mandates the very opposite.

It expressly prohibits the European Court from taking in any complaint before the victims’ human rights have actually been violated and they have unsuccessfully exhausted all remedies available in the domestic courts.

This fundamental difference between Malta and Strasbourg should be evident even to the certified retarded. So don’t expect it to be evident to some of our constitutional sycophants. Their priority remains never to miss an occasion of smelling sweet to the noses of power.

The Strasbourg court, very rightly, only uses interim measures extremely sparingly, in exceptional cases, mostly if the breach is ongoing during the ECtHR hearing.

Relying on Strasbourg’s interim measures case law in order to regulate Malta’s polar-opposite scenario is as unbecoming as hosting a convention of vegans in an abattoir. How one wishes our judges would more frequently mirror Strasbourg case law on substantial issues and less in wholly irrelevant procedural trivia.

I am proud that, with Chief Justice Mark Chetcuti at the helm, the judicial protection of human rights has made encouraging progress. But there are still pockets of weakness, like interim measures, to mention only one. If there were fewer, Malta would not rank at the very bottom in Europe for its judiciary’s failure to protect human rights instead of protecting their violators.

We still hold, with Dobermann tenacity, the European record of having more than 90 per cent of our human rights judgments examined on the merits binned by the supreme court of Europe. Be proud.

Giovanni Bonello is a former judge at the European Court of Human Rights.