When judges binge on impunity for the powerful

With exceptions, Malta has relatively good laws. But institutional impunity guaranteed to powerful wrongdoers remains one of its fundamental weaknesses. I would feel disenchanted were impunity not applauded by the mafia but am rather dismayed when I see it crafted, enabled and guaranteed… by the judiciary.

I hate to shock you but the judiciary is meant to protect the vulnerable against powerful abusers. Too often, Maltese judges unprotect the weak and ensure impunity for wrongdoers, if mighty enough. Yes, I recoil when I see members of the judiciary turning into sorry accomplices of institutional impunity, hand in hand with the oppressors, rather than shielding the oppressed.

I will mention only seven spineless ways through which our ‘judges’ promote impunity for the violators of values enshrined in the constitution.

1. By letting the alleged violators off the hook – because the victim has not exhausted (often-inexistent ‘effective’) ordinary remedies. The constitution expressly grants judges a discretion to redress human rights violations even if the victim has not exhausted existing ordinary remedies. Mention one single case, in 64 long years, in which the judiciary found that there was an ordinary reme­dy that the victim had not exhausted but equally redressed the violated human right. Without one single exception, courts use that discretion exclusively to unprotect the victim and to ensure impunity to the delinquent powerful. And I should celebrate this castrated judiciary?

2. Interim measures to stop threatened violations of human rights. Our judges have entirely perverted the clear dictates of the constitution. They ensure that the powerful are not disturbed and routinely and scandalously refuse to order interim measures. Who benefits from this glaring misreading of the constitution? The powerful reap preventive impunity and the victims reap the pliability of a marshmallow judiciary.

3. The outright refusal to enforce the Principles of the Constitution when examining the validity of laws. Are you aware with what stomach-churning shallowness they dismiss these imperative principles – always ensuring that the powerful are not disturbed and the victims are denuded of all judicial protection? How mean of me not to applaud.

4. Frivolous and vexatious. A magistrate (or judge) with zero constitutional jurisdiction dismisses requests to refer human rights issues for determination by a proper human rights court. All he has to do is to chant a magic mantra: frivolous and vexatious. Without an in-depth hearing, without giving reasons, without the possibility of appeal, abracadabra, your human rights vanish for ever.

Judges have decided that this fatuous veto by Mr Nobody devoid of constitutional competence can divest you in perpetuity of any shred of constitutional rights. A non-constitutional court can trump a constitutional court on constitutional matters without giving reasons. But that’s okay – it guarantees impunity to human rights violators, instead of protecting their vulnerable victims.

5. Wiping floors with freedom of expression. At least six victims punished by the Maltese courts or by parliament for ‘defamation’ of the politically powerful took their complaint to the supreme court of Europe. This had to review 20 judgments delivered by over 30 Maltese judges and magistrates.

The European Court found that not one single member of the Maltese judiciary had got it right – they had all unprotected the victims and had sided with the powerful politicians.

All of them were scared to be labelled neutral. Don’t worry, dears. Nobody considered you neutral. Just neutered- Giovanni Bonello

All 30 men and women had, with pompous verbiage, enabled the mighty to suppress freedom of expression. Not one of those 30 or more nonentities in gowns had sided with the victim – the first case of contagious judicial dementia recorded in medical history. All of them were scared to be labelled neutral. Don’t worry, dears. Nobody considered you neutral. Just neutered.

Things only improved when Mr Justice Francesco Depasquale and former Magistrate Rachel Montebello  finally started fashioning libel judgments on rational Strasbourg templates.

6. Emergencies that threaten the life of the nation. The constitution and the European Convention permit the suspension of some human rights when public emergencies or calamities threaten the life of the nation. Strong words indeed!

But our judiciary has turned them into pathetic vaudeville – to grant impunity to powerful politicians against vulnerable victims. When little bakers of price-controlled bread, selling at a certified loss, went on partial strike, the government rushed legislation forcing them back to work under crippling criminal sanctions. This, after the minister had boasted in parliament that the strike had been ineffectual and lamenting how much bread was remaining unsold. Our judicial clowns justified those atrocious anti-worker abuses. They found that settling for a bezzun instead of a slice of ħobż tal-Malti amounted to a public calamity that threatened the life of the nation, like the Krakatoa world tsunami, the Black Death or the annihilation of Pompeii. And may the good Lord have mercy on the survivors, if any.

Identical pronouncements by those proud-to-be-eunuchs followed. Don’t call them judgments, call them barrels of puke, formidable contenders for the Gaddafi International Human Rights Prize, now sadly defunct.

7. Erga omnes. This idiotically pernicious home-brewed doctrine states that when the Constitutional Court finds laws to be incompatible with the constitution, the judgment only benefits the plaintiff but the anti-constitutional law remains binding on everyone else. So, magically, exactly the same law is constitutional and unconstitutional at the same time.

So, if 50,000 persons are affected by a law the judges found to be unconstitutional, 50,000 victims are expected to pay lawyers to file 50,000 lawsuits in the constitutional courts to have what the court has already established, established again, and again, and again. This almost reaches the Everests of Privitera imbecility and inconsequence, though, admittedly, those remain beyond reach.

This obscene doctrine, found absolutely nowhere else in the whole democratic world, grants eternal impunity to human rights violators. It was not even pleaded by the government.

It was gifted spontaneously to human rights bandits on a jewelled dish, compliments of our castrated courts, as a Christmas bonus.

These are only seven of the shameful tools that the judiciary overworks – to become the enabler of violators of human rights. There are scores of others, one more vomitable than the previous. I would pay to be proved wrong but only a befuddled DeGiovanni has volunteered.

A common thread runs through them: parts of the judiciary believe that the impunity of the powerful has been entrusted to their safekeeping  and that there is an iced bun waiting when they retire.

I salute those who stand out nonetheless. They remain oases of devotion to duty engulfed by deserts of gutlessness and fawning.