The great human rights deception

The well-meaning but mildly-delusional founding fathers of our constitution burdened the judiciary with one supreme responsibility – to safeguard and promote Article One – Malta is a republic founded on the respect for human rights.

The way that some members of the judiciary in practice pull their sacred duties inside out is nothing short of squalid. Some believe their mission is to find ways to shortchange the vulnerable victims of human rights abuses and to make sure their violators are not, may the good Lord forbid, held accountable.

These are not the ravings of someone turning paranoid.

These are the tragic, but official, statistics certified by the Strasbourg European Court of Human Rights. Europe’s supreme court has repeatedly qualified the Maltese judiciary as unchallenged European champions when it comes to shielding the violators of human rights rather than redressing those who have fallen victim of their human rights arrogance.

Maltese judges hold the European record of having well over 90 per cent – yes, over 90 per cent – of their human rights judgments examined on the merits, thrashed in Europe. The judiciaries of Russia, Turkey and Albania keep challenging their Maltese colleagues – unsuccessfully so far. Though, watch it, Azerbaijan is catching up and we can’t let them cheat us of being the worst in Europe, now, can we?

Catastrophically, many have taken the mission statement of the constitution to mean the exact opposite of what it was meant to mean – that no effort must be spared to let human rights tyrants off the hook and to divest their vulnerable victims of any judicial protection.

One of the favourite ways of advertising their blinding submission is through gorging themselves on the doctrine of ‘non-exhaustion of other remedies’, a doctrine they have thoroughly misunderstood, heroically distorted and liberally misapplied.

Their excuse for the impotence they seem so proud of? Recourse to the constitutional court by victims of human rights abuse is an ‘extraordinary remedy’. The victim can only resort to it ‘most exceptionally’ and only after having exhausted all other remedies. If the victims have not exhausted all other remedies, the constitutional judges cannot examine their claims. Out, don’t waste our time.

This is monumental rubbish on steroids. It is the exact opposite of what the constitution dictates and very explicitly. Have these judges ever bothered to read Article 46 of the constitution? And, if they have, did they even try to understand its easy-for-the-retarded language?

See what Article 46 enjoins: persons who claim to be victims of violations of their human rights shall apply to the constitutional judges for redress. This is the rule – not the exception, as our sorry judges now want us to believe.

Then comes the exceptional exception which some judges have now turned into their alibi for not embarrassing ministers: however, constitutional judges may (not must) use their discretion whether to grant redress, if they are satisfied that other adequate remedies were available to the victim. This is the exceptional exception.

Various considerations come to mind: the constitution burdens the judges with the responsibility to use their judgement whether to protect the human rights victim or to advantage the violator of human rights. Judges are given two alternatives to choose between: Favour the predator? Or redress the victim? Guess which our human rights judges opt for? They invariably choose the exception, never the rule – this enables them to disengage the mighty and to dismiss the victim empty handed.

In Malta, human rights have been enforceable in court for the last 64 years. I beg to be proved wrong but I am not aware, throughout these rather long decades, of one single instance in which the judge, after the state pleaded non-exhaustion of other remedies, (the court) opted to protect human rights.

Maltese judges hold the European record of having over 90 per cent of their human rights judgments thrashed in Europe- Giovanni Bonello

In these 64 years, judges have had repeated occasions to choose whether to redress those whose human rights had been usurped or to shield those accused of usurping them. When the ‘non- exhaustion of other remedies’ deception was pleaded, not once did they opt in favour of the usurped. When the court is left free to choose, it invariably brownnoses the powerful, not redresses the victim.

And saying that the constitution gives this option to judges is being rather disingenuous. It does not. The constitution confers on judges a ‘discretion’ whether to protect the alleged predator or to redress the alleged victim. The very first rule about the exercise of judicial discretion is that the discretion must be used to promote – not to sabotage – the objects and reasons of the law.

Judicial discretion should always be used in a way that strengthens the enjoyment of human rights, not defeats them. The objects and reasons of our human rights constitution have now morphed to ensure that human rights vic­tims bother the courts with their irritating human rights whinges as rarely as possible.

I heard their defence: we are following the case-law of the Strasbourg court that dismisses human rights complaints unless the applicants have exhausted domestic remedies. This is when I reach for a double dose of tranquilliser. The Strasbourg court invades domestic sovereignty and can only do this after all domestic remedies have been unsuccessfully availed of.

The Maltese constitutional courts, on the other hand, are sovereign courts with no limitations on their powers and whose sole function is to protect human rights against all threats by the powerful. See the gigantic difference?

I must make clear at the outset the unfairness of tarring all Maltese judges with the same brush.

There are the heroic ones who fight against the tide, who abhor escape routes to reward human rights bullies instead of protecting their victims. I salute those who do not succumb to the compulsion of reducing the constitution to one manageable proposition – the minister is always right.

Will I be accused of disrespecting the judiciary?

I make a fundamental distinction, one that should be evident to all who have not mislaid their very last grey cell. When I, wielder of zero authority, criticise judges and magistrates, that is freedom of expression.

When powerful and feared ministers resort to the same words as I use, that is impermissible intimidation and a despicable abuse of the separation of powers.

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