In the case of Paluda v Slovakia decided by the European Court of Human Rights on May 23, the Strasbourg Court held that by denying Slovak judge Paluda the possibility to challenge his suspension from judicial office, he was denied the right of access to a court and that Slovakia was therefore in breach of fundamental human rights.

The amendments to the Constitution agreed to by the government and Opposition last year have introduced for the very first time the possibility of suspending a judge or magistrate from office, that very same procedure which the Strasbourg Court has found in Paluda to violate human rights.

It is clear that the Bill had not been subjected to a human rights impact assessment prior to its being moved in the House of Representatives.

One cannot have a more serious misrule of law when parliament amends the constitution not only in breach of the constitution itself which mandates, in terms of article 65(1), that parliament should make laws “in conformity with full respect for human rights” but of the very first provision of the Constitution: “Malta is a democratic republic founded ... on respect for the fundamental rights and freedoms of the individual.”

What more than this can Parliament do to bring the Constitution of Malta into complete disrepute?

In addition, the European Convention on Human Rights, which forms part of the laws of Malta, is also breached when it allows for the suspension of a judge or magistrate without the possibility of judicial review of that decision as has been held in Paluda v. Slovakia.

The Paluda judgment is another nail, as though one more was needed, in the coffin of the 2016 reprehensible amendments to the Constitution related to the appointment and discipline of the judiciary, one of the worst drafted laws I have ever come across. Though now nothing surprises me any longer.

I have criticised these obnoxious amendments in a series of articles last year in this newspaper. But Parliament is not perturbed at all when it stoops so low by going at great lengths in subverting the basic law of the land which is after all its creator.

In terms of the 2016 constitutional amendments, the Commission for the Administration of Justice shall in a determinate case “suspend the judge or magistrate concerned” and s/he “shall be entitled to half the salary and allowances”.

Parliament is not perturbed when it stoops so low by going at great lengths in subverting the basic law of the land which is after all its creator

In Paluda, the Judicial Council of the Slovak Republic (similar to our Commission for the Administration of Justice) has the power to suspend a member of the judiciary who ends up with a 50 per cent salary reduction. The suspension could last up to two years.

Judge Paluda contended that “during the period of his suspension, not only had a part of his salary been withheld and he had been unable to exercise his judicial mandate, but at the same time, he had continued to be subject to restrictions applicable to judges, such as not being able to conduct business, engage in political activities, or be gainfully employed”.

The court noted that the composition of the Judicial Council had one half of its members directly appointed by the legislative and executive power. Proceedings before it were not of a judicial character and Judge Paluda was deprived from asserting his civil rights and obligations in relation to his suspension from judicial office.

The court reiterated “the growing importance which international and Council of Europe instruments, as well as the case law of international courts and the practice of other international bodies are attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge”.

The court further found that not only was the applicant denied the right of access to a court but that the Judicial Council (like our commission) did not provide the “institutional and procedural guarantees inherent in” the fundamental right to a fair trial.

An interesting observation made by the court was that the Judicial Council was presided by the President of the Supreme Court. As in Malta, when the commission deals with discipline against a member of the judiciary, it is presided by the Chief Justice who, in terms of our Constitution has the power to draw up “a complaint in writing... containing definite charges” against the accused judge or magistrate, very much in line with what the Strasbourg Court vehemently condemned with the utter disrespect that it deserves in Paluda, although this of course very much reminds us of Demicoli v. Malta.

In the Court’s words: “At the institutional level, the court further notes that the body in question, the Judicial Council, was at the relevant time by law presided over by the president of the Supreme Court... this is of particular relevance in that the applicant’s suspension was imposed on him by the Judicial Council within the context of disciplinary proceedings instituted against him by the same body in connection with his criminal complaint and public statements concerning the exercise by the president of the Supreme Court of his duties.”

The Slovak judge was not heard in connection with the suspension. Nor is the Commission for the Administration of Justice required by the 2016 amendments to hear a Maltese judge or magistrate prior to suspending him from office.

The Strasbourg court remarked that the applicant was deprived of his right to access a court. It concluded its judgment finding in favour of Judge Paluda and against Slovakia as follows:

“The court considers it important to draw a clear distinction between the arguably compelling reasons for suspending a judge facing a certain type of disciplinary charge and the reasons for not allowing him or her access to a tribunal in respect of that suspension.

“In the court’s view, the importance of this distinction is amplified by the fact that the body taking the measure and the procedure in the course of which it was taken fell short of the requirements of Article 6 § 1 of the convention (right to a fair trial) and the fact that the measure was taken within a particular a context as that pertaining to the present case.”

This judicial pronouncement by such an authoritative court cannot be left unheeded by the wayside and provides ample food for thought.

It is a timely call for a newly convened legislature to ditch completely the 2016 regressive amendments to the Constitution related to the appointment and discipline of the judiciary by new provisions which are not disrespectful to human rights and which do not make Malta blush internationally but instead enshrine provisions which any democratic society based on the rule of law takes pride in having on its statute book.

Malta, without a shred of doubt, deserves better.

Kevin Aquilina is the dean of the Faculty of Laws at the University of Malta.