Profanity is not absent in court. It is not unusual for witnesses or prosecutors to use foul language when, for example, recounting what an accused person said or was told. But that is as far as it should go. Swearing at each other in the courtroom is no go, more so if that involves the presiding member of the judiciary and an official of the court.
The code of ethics for members of the judiciary is very clear on this point. “Members of the judiciary,” it lays down, “shall carry out their duties with dignity, courtesy and humanity. In particular, they are to show respect towards advocates, legal procurators, the parties and witnesses, as well as towards the public, and this to ensure the orderly and decorous conduct of proceedings.”
The commission for the administration of justice, through its committee for judges and magistrates, must, therefore, look into the incident involving Magistrate Yana Micallef Stafrace and lawyer Janice Chetcuti, who is also a member of parliament. The term ‘whore’ was used by the magistrate when addressing the lawyer who had just kissed her cousin, a lawyer himself, on the cheek.
She can avoid that, however and step down. What would then need to be decided is whether she still deserves to have a warrant as a lawyer.
This sordid matter assumes even more urgency in view of the public comments made by the Chamber of Advocates, which found the magistrate’s reaction “totally inappropriate, unacceptable and intolerable”.
According to the constitution, for disciplinary action to be taken against a member of the judiciary, there has to be a written complaint by either the chief justice or the justice minister. As the proceedings of the commission are shrouded in secrecy, the public remains in the dark even if, in its preamble, the code of ethics declares that the values promoted “are being brought to the notice of the public so as to strengthen trust in the administration of justice”.
In 2016, the public lost the right to make such complaints themselves. What if it had been a member of the public who ended up at the receiving end of the magistrate’s displeasure?
In England and Wales, anyone can complain about the personal behaviour of a judicial office-holder to the judicial conduct investigation office, which notes that “misconduct remains rare”. That is also the case here, which makes it even more imperative that forceful and immediate action be taken in glaring cases of misconduct. Judging by the conclusions reached by the Chamber of Advocates, the incident involving Micallef Stafrace is a case in point.
Acknowledging that the kiss of greeting “falls below the decorum expected of lawyers in a courtroom”, the chamber felt “a simple verbal warning in the circumstances would have been in order”. In other words, the magistrate overreacted.
Its comments also imply that the magistrate made an incorrect evaluation of the situation. This is, of course, very worrying since members of the judiciary base their decisions on the evaluation of facts.
The magistrate’s “disproportionate reaction” is, in the eyes of the Chamber of Advocates, “also unfair on other members of the judiciary who go to great lengths in safeguarding the reputation of the judiciary”. Bottom line: the erring magistrate brought the Bench into disrepute.
If the matter does end up before the committee for judges and magistrates – and justice demands it does – the proceedings will be held behind closed doors unless Micallef Stafrace herself requests otherwise. She should, given that the case is now in the public domain and trust in the judiciary has been badly dented by this incident.