What a judge must not do

Last week I wrote about what a person must not do in a court case. I felt that it would be fit and proper that, this time, I write about what a judge must not do in the light of judicial ethics as spelled out in the Code of Ethics of the Judiciary. The behaviour of parties in a case and the way a judge conducts himself are the sides of the same coin known as justice. In order that justice be served, all the players in a court case must conduct themselves with dignity and propriety.

I can safely say that judicial misconduct undermines the very foundation of a functional judiciary. It is vital that citizens have absolute trust in their judges, believing them to be fair and impartial. A judiciary does not exist without this trust. In the 2024 Eurobarometer, 85% of Maltese believed that courts are the best place to resort to if their rights are breached. That is 10% higher than the European average.

But this does not mean that we can rest on our laurels. The judiciary must remain legally and ethically accountable. We must continually hold the judiciary accountable for their behaviour.

I must admit that it is a daunting task to oversee and review judicial conduct, to ascertain that judges (meaning also magistrates) perform their duty without having their independence eroded.

Unlike the other branches of the State, the judiciary depends solely on public trust. It commands neither armies nor the police force. Its only source of authority is its word, the word of the law, administered with full respect for the rule of law. At the very heart of this principle lies judicial independence. Judges must remain independent not only from external influence but also from their own personal convictions and biases. Their decisions must be free from interference by politicians, public opinion, or any other outside pressure.

The principle of judicial independence does not mean that a judge may act without restraint or remain beyond scrutiny when failing to discharge his or her duties. Delays in delivering judgments, unreasonable adjournments between hearings or a flagrant lack of respect towards any of the parties, among other forms of misconduct, can never be justified under the guise of judicial independence.

Independence and irresponsibility are not the same. Judges, like anyone else, may at times prove to be negligent or fail to meet the standards expected of their office. When that happens, accountability must follow.

Judges make decisions that have profound consequences for those who appear before them. They are therefore expected to perform their duties with competence and diligence.

Judges are role models in society and are expected to conduct themselves, both in the exercise of their judicial functions and in their public and private lives, in a proper and law-abiding manner.

The judiciary’s only source of authority is its word, the word of the law, administered with full respect for the rule of law- Toni Abela

Sound judicial conduct requires judges not only to uphold the highest ethical standards but also to avoid any conduct that may create an appearance of impropriety, whether in their professional or personal lives.

In principle, decisions fall solely within the remit of judicial review and cannot be reviewed or otherwise varied by a conduct body or commission. However, a manifest denial of due process, the creation of anomalous remedies that reflect the mindset of the judge rather than the law or a complete breakdown of the rule of law may give rise to a finding of judicial misconduct.

Even in such cases, all available remedies to redress the harm must first be exhausted, such as a retrial or a constitutional action. Addressing this type of misconduct is akin to walking on a knife’s edge, given the fundamental principle of the separation of powers.

Nevertheless, putting in place meaningful safeguards against judicial misconduct is vital. This must be achieved while minimising the risk of undue, if not unlawful, interference by those who are themselves legally bound to ensure that justice is properly administered and that public trust in the judiciary is not undermined.

A judge is also entitled to due process of law, albeit free from the usual pedantic legal regime. The entire disciplinary framework must ensure that a judge has a fair opportunity to contest any allegations of misconduct brought against him or her. Those entrusted with deciding such matters keep in mind that their decisions may establish precedents for the handling of future cases of judicial misconduct.

Indeed, although disciplinary proceedings are in their essence carried out in chambers far from the public eye, it is desirable that the final outcome be made public.

Apart from the fact that justice is not only done but must necessarily be seen to have been done, this would serve a dual purpose of correcting the judge in question as well as serving as an example to others in the judiciary as to what can or cannot be done by them.

Needless to say, sanctions should be commensurate to the misconduct in question. These range from mere admonishment to having the judge in question disgraced by removal from office. Suspension or removal should only be reserved for the most appalling instances of misconduct.

Though when it comes to the administration of justice judges may be the nearest thing to the shadow of God on earth, they are certainly not gods. They are subject to the law in the same way as any other citizen. It behoves the judiciary to support measures that hold them accountable.

While acknowledging that the vast majority of judges uphold justice and carry out their duties with honour, the judiciary should support the correction of any shortcomings or misconduct by its members.

The shame that a single judge may bring on himself or herself will, in one way or another, inevitably reflect upon the judiciary as a whole and, consequently, on public trust in the justice system.

Judge Toni Abela is the Commissioner for Standards of the Judiciary.