Prior to the Constitutional Reforms (Justice Sector) Act, 2016, the Constitution allowed for judicial removal but not for the suspension of a judge or magistrate from office. With this amending Act to the Constitution judicial suspension is now possible. But the amendments have aggravated further the procedure in the Constitution relating to judicial removal from office.

A member of the judiciary may be removed from office by a vote of at least two-thirds of the members of the House of Representatives. The judicial role of the House has already received a mortal condemnation by the European Court of Human Rights (the Strasbourg Court) in ‘Demicoli v. Malta’. However, when the Constitution was amended following the Demicoli judgment, this was done piece meal and amateurishly.

The other judicial sanctioning power of the House relating to judicial removal was kept wholly intact. The Strasbourg Court’s voice fell on deaf ears.

The thorny issue of judicial removal has not been addressed with the rigour that it deserves in the latest constitutional amendments. Where the August 2016 amendments develop further judicial removal, they simply retain the status quo taking it for granted that it is human rights law compliant, when it is not.

There is a spate of Strasbourg case law which has condemned constitutions and laws like the Maltese which breach the right to a fair trial as envisaged in Article 6 of the European Convention on Human Rights (ECHR) in relation to judicial removal from office by a political institution. None of these judgments have been taken on board by the 2016 amendments.

I have already studied this point elsewhere (see ‘The Strasbourg Court’s Case Law and Its Impact on Parliamentary Removal of a Judge in Malta: Turning Over a New Leaf?’, International Human Rights Law Review, Volume 3 (2014), Issue 2, pp. 248-275). Yet since that piece was published, other case law emerged which clearly indicates that, from a human rights perspective, the House due to its inherent political (not to say ‘partisan’) mind set can never guarantee a fair trial to the judiciary.

Reference was there made to ‘Demicoli v. Malta’, which specifically dealt with the judicial functions of the House. Although applicant Demicoli was neither a judge nor a magistrate but an editor of a satirical newspaper exercising his freedom of expression, the question of independence of the adjudicating authority – the House – was debated and the reasoning of that judgment still holds good for judicial removal from office.

The thorny issue of judicial removal has not been addressed with the rigour that it deserves in the latest constitutional amendments

In the 2014 paper an analysis was made of the case law of the Strasbourg Court relevant to the parliamentary removal of the judiciary, notably ‘Vilho Eskelinen and Others v. Finland’, ‘Oluji v. Croatia’ and ‘Oleksandr Volkov v. Ukraine’ together with the Maltese originating case of ‘Demicoli v. Malta’.

In the Eskelinen judgment, the Strasbourg Court reversed its earlier interpretation of Article 6 of the ECHR where it had originally held that the right to a fair trial did not apply to the judiciary, including, therefore, a case of a judicial removal motion. In its new interpretation, the Strasbourg Court now held that is was possible, were the House to attempt to remove a member of the judiciary from office that a breach of Article 6 materialises in relation to the right to a fair trial.

But what the government, through Parliament, did in the August 2016 constitutional amendments was to extend the procedure for judicial removal from office to the case where it is now the Committee for Judges and Magistrates (which is entrusted with minor cases of judicial discipline) which, should it consider “the breach is of such a serious nature that it merits the removal of the judge or magistrate from office, it shall report its findings to the Commission for the Administration of Justice which shall consider whether the evidence constitutes prima facie proof and, if it considers that such degree of proof exists the Commission shall suspend the judge or the magistrate concerned and shall refer the matter to the Speaker of the House of Representatives”.

In other words, the three members of the judiciary who sit on the committee are being directed by the Constitution to ignore Strasbourg case law and, in effect, do the obverse that the Strasbourg Court directs in such a case.

Now the House can proceed to advise the President to remove the accused judge or magistrate in clear breachof Strasbourg case law on the matter cited above.

Bearing in mind Strasbourg case law, the suspension procedure of the accused judge or magistrate by the Commission for the Administration of Justice, presided in judicial discipline matters by none other than the Chief Justice who presides the Constitutional Court which is entrusted to enforce human rights and fundamental freedoms, raises human rights law compliance issues.

Since 2014 new cases have been decided on the question of judicial removal, the latest being ‘Baka v. Hungary’. Judge Baka was a former Hungarian judge at the Strasbourg Court between 1991 and 2008. In 2009, he was elected by the Parliament of Hungary as President of the Supreme Court of Hungary. The Strasbourg Court’s Grand Chamber held that “the premature termination of the applicant’s mandate as President of the Supreme Court was not reviewed, nor was it open to review” (as is the situation in Malta with judicial removal by the House).

The court considered this “lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law is doubtful”. The court could not fail to note “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”.

In ‘Saghatelyan v. Armenia’ the Strasbourg Court held that “when disputes to which Article 6 is applicable are determined by organs other than courts” – and the House is one such organ – “the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with requirements of Article 6 paragraph 1” (and ‘Demicoli v. Malta’ has clearly stated that this is not the case in so far as the House is concerned) “or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 paragraph 1” (which undoubtedly is not the case in Malta).

It is a great pity that there were all these pointers to the Maltese government which were not taken on board when the August 2016 constitutional reform of the justice sector amendments were being drafted and rushed through Parliament.

Instead the matter of judicial removal continues to cry out for serious reform. Indeed, the 2016 amendments are a missed opportunity to bring the Constitution, in its own words in article 65(1), “in conformity with full respect for human rights”.

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