How to coax a judiciary

There exists a splendid technique for demolishing institutions without appearing to demolish them. One must never attack the institution directly. That would be vulgar. Instead, one expresses concern for the institution’s reputation.

The justice minister, Jonathan Attard, has recently provided us with a masterclass. A magistrate has applied for promotion to judge. The minister suggests – to his own political party’s TV station, naturally - that the appointments committee should avoid promoting people “at the centre of controversies”. The magistrate in question had conducted an inquiry into government corruption. The government had attacked her. Now, the government suggests she shouldn’t be promoted because she was attacked.

This is reasoning so circular it could be used to train racing pigeons.

But let us be rigorous. Let us assume, for the sake of argument, that Magistrate Gabriella Vella does not deserve promotion. Let us imagine she is incompetent, lazy or prone to deciding cases by consulting her horoscope. This way we divorce the ad hominem from the institutional rot, the way a skilled surgeon separates healthy tissue from gangrenous.

Even if we grant this premise, the minister’s intervention remains catastrophic. Why? Because controversy does not spontaneously generate itself like mould on forgotten bread. Controversy is raised. It requires agents. Specifically, it requires agents powerful enough to believe they can take potshots at the judiciary without consequence.

If controversy can stunt a judicial career, then anyone capable of creating controversy possesses the power to influence a judge’s career. This is not a hypothetical danger. It is a mechanism that the minister is deploying before our eyes.

Consider the implications for every magistrate who harbours ambitions of promotion. They will learn the lesson quickly. Avoid judgments that might prove “controversial”. In practice, this means one thing: tread carefully around the powerful. The rich man’s lawyer gets a friendlier hearing than the poor man’s advocate. The politician’s interests weigh more heavily than the citizen’s rights.

A magistrate conducting an inquiry into governmental malfeasance will feel a particular chill. She must wonder: Will my career end if I follow the evidence? The government has already curtailed citizens’ rights to trigger inquiries. It behaves as though it has a guardian Angelo in the police force. Now it turns its attention to the magistrates themselves. The circle closes.

But the true perversity lies deeper. The “controversy” surrounding Magistrate Vella was widely understood as an illegitimate attack on the judiciary by the executive branch. The controversy was itself the scandal. Robert Abela accused her of “political terrorism” for doing her job. The controversy was not a bug; it is a feature of this government’s modus operandi.

Now, however, this illegitimate attack serves to legitimise further punishment. The victim finds herself declared guilty – of having been attacked. It’s like blaming the assault victim for bleeding on the assailant’s knife.

This case is not about just one magistrate’s troubles. It threatens to transform the constitutional order. If the minister’s reasoning is accepted, politicians become the judges of judges. The Judicial Appointments Committee, supposedly independent, receives its instructions via the government’s television station. One hardly needs to be subtle. The committee members possess functional memories. They recall how the governing party and its Rottweilers treat judges who reach unwelcome conclusions.

We are left with a judiciary that has been given a broad hint: it must genuflect not before the law but before those who wield the power to generate controversy- Ranier Fsadni

The minister’s statement was not spontaneous. It emerged in response to a question from ONE News, the propaganda organ of the governing party. This was theatre, carefully staged. A message sent, received, understood.

To imagine this declaration affects only one magistrate requires spectacular naïveté. If the technique succeeds once, why not employ it again? Why should it remain the exclusive tool of one government once normalised? Power seeks precedent the way rainwater seeks Msida; a trickle can become a flood.

And, here, we encounter the fundamental contradiction. Judges routinely reach conclusions that could be deemed controversial. They must. The law possesses its own logic, which often contradicts majority opinion. A judge faithful to law will inevitably offend someone. Occasionally, it will be someone powerful who expected a different result. If controversy disqualifies, then faithfulness to law disqualifies. The minister is sounding a warning: Do your duty and harm your career; compromise your duty and preserve it.

The Romans taught us to ask: Who guards the guardians? We might now add: Who judges the judges? The answer, apparently, is whichever minister happens to wander past a friendly television camera.

Machiavelli understood that the appearance of virtue matters more than virtue itself. The modern authoritarian has learned this lesson well. One need not abolish courts. One merely ensures they produce the correct results. One need not fire judges. One merely ensures they know the price of inconvenient judgments.

The minister expresses concern for avoiding controversy. How thoughtful. How responsible. Meanwhile, he creates the controversy he deplores, then uses it as weapon and justification simultaneously. It is a trick worthy of the paradoxical art of M.C. Escher: the hand that draws itself drawing the hand.

In the end, we are left with a judiciary that has been given a broad hint: it must genuflect not before the law but before those who wield the power to generate controversy. This is not justice. It is not even its counterfeit. It is the puppet show that remains after justice has quietly left the building.

The minister’s message will be understood by every magistrate contemplating a difficult decision. The chill will spread. The powerful will rest easier.

And we shall call it, no doubt, protecting the integrity of the judiciary.