I’ve been a lawyer for 21 years and, although I don’t do flights of courtroom rhetoric every day of the week, I’ve clocked up enough hours to know what’s appropriate and what isn’t. Being a litigation lawyer is hard work, made even harder by the fact that you are ultimately at the mercy of judges and magistrates: fallible human beings with their own prejudices and perspectives (and, yes, baggage and fears) who don’t always afford you a fair hearing, or so you think.
I believe members of our judiciary do their level best to be unbiased. That said, there are instances where you simply feel, or know, that the playing field isn’t even and that, for one reason or other – perhaps just personal chemistry – you and your client are getting the short straw.
In an ideal world, lawyers should be able to challenge judges who seemingly don’t like them and consistently rule against them. In the US, a lawyer successfully filed a motion to remove a judge on such grounds but I can’t really see that happening here, which is perhaps just as well.
There are times when judges will recuse themselves sua sponte and there are times when you need to do the job yourself. The law specifies exactly when you can do that but it’s the challenged judge himself who decides the case, so if you try to challenge him (or her) and fail, you are on tenterhooks for the rest of that case. And, possibly, for much longer.
Yes, judicial bias is something all lawyers experience in some shape or form. There were times I’d have liked nothing better than to tell the presiding judge exactly what I thought. But that’s not how things are done. Judges come and go, as do we, and we are but temporary custodians of an institution far bigger and more enduring than its parts. And though you may sometimes question the integrity of individual players, the institution’s very survival depends on your respecting its overarching integrity. There’s a line you simply can’t cross because, once you attack a judge, the entire institution is diminished.
A couple of weeks ago, we witnessed a sinister and very public attack on a serving member of our judiciary while in the exercise of his functions. Mr Justice Giovanni Grixti was due to deliver a bail decree in respect of Yorgen Fenech, who stands accused of complicity in the murder of Daphne Caruana Galizia.
Fenech, in pre-trial detention since November 2019, had not been formally indicted, so 21 months later and still presumed innocent he stood a fair chance. But the prosecution expedited the bill of indictment and, once Grixti had retired to deliberate, Team Caruana Galizia, of which lawyer Jason (ought to know better) Azzopardi forms part, took to Facebook and social media to attack the judge for his failure to disclose the 2008 purchase, second-hand, of a 50-foot boat Grixti had apparently acquired from Fenech’s father, who has since died.
Challenge a judge by all means if you feel you should but do so properly, by filing an application in court
Within the hour, every single media outlet was ablaze. It was painful to watch. I was incensed that a member of our judiciary who, for 19 years prior to being appointed judge, had dutifully presided over the Rent Regulation Board, the Land Arbitration Board and the Court of Magistrates without any complaints, was suddenly on the receiving end of scathing social comment.
I am not for one minute suggesting that the Caruana Galizias ought to have keeled over. Challenge a judge by all means if you feel you should but do so properly, by filing an application in court at the beginning of the hearing or at any time after, with urgency if necessary. That would have been perfectly acceptable and would have also afforded Team Fenech the right to have their say while giving the judge an opportunity to step aside. That is what equality of arms and the rule of law dictate.
It is, of course, highly significant that Team Caruana Galizia didn’t go down that road but opted instead to intimidate the judge in a very public forum. And they got exactly what they wanted: the hapless judge decided against bail (and without ever once alluding to the Facebook onslaught, since judges are precluded from reacting to individual criticisms). And, naturally, pseudo supporters of the rule of law did not cast a single doubt on the ruling of a judge who, hours (minutes!) before, they had shamelessly pilloried on social media.
But woe betide if the bail decree had gone the other way. We’d then have had all the commissions, from Venice to Valletta, pitching in. And if Fenech’s team had pulled a similar stunt, they’d have been hauled before the Commission for the Administration of Justice and the Court of Magistrates. Make no mistake, this was textbook s.93 of the Criminal Code: the unlawful vilification and intimidation of a judge in the exercise of his functions.
Once you make an allegation like that, a hitherto unbiased judge is immediately compromised, whether he realises it or not. It’s like asking someone not to think about a purple elephant. As soon as you make the effort, the only thing you can think of is that purple elephant. Can we really say, hand on heart, that that bail decree was delivered with complete serenity and without any external influence?
Had the boot been on the other foot we know how that would have gone down. A ruling which is only acceptable to one side if it goes their way but not the other can’t possibly constitute due process.
We have here the arrogant entitlement of a group of people who pick and choose which judges, decrees and conclusions they like and attack, with impunity, anyone who doesn’t fall into line. Surely, anyone with even half an objective brain can see this. How can we protect the fourth estate if we’re denigrating the third? And who is going to protect the judges and everyone’s right to a fair hearing?