Chief Justice Emeritus Vincent Degaetano, who has already spent seven years at the European Court of Human Rights in Strasbourg, with two more to go, remains vigilant about all that is going on in Malta. Vanessa Macdonald spoke to him.
Malta is one of four Member States that does not require judges to undergo compulsory training. Is the way in which we appoint members of the judiciary the most effective?
It is still problematic, in my opinion.
By and large, Malta still follows the English system as it was 40 or more years ago, but on the continent, there are career judges, who must be specifically qualified. Both systems have their merits and demerits.
If you appoint people from the legal profession who have substantial and sound experience, that would normally be ideal. It works in England and Ireland, so in principle, there is no reason it should not work in other countries.
The problem is whether we in Malta are appointing people with the necessary legal experience and the correct skills and aptitudes. The Judicial Appointments Committee is a step in the right direction, but as I read the Constitution, its main function appears to be to ensure that the lowest common denominator is met. The committee can only say ‘No’ if there is something really wrong, but I see nothing that spells out how candidates are to be evaluated as to their aptitudes and skills in analytical reasoning, judgment writing, court management, etc.
Nor does it appear that it can, as things stand, rank candidates, including those who have put their name down for consideration.
Of course, to set a ranking, you would have to have published criteria, and as far as I know, no such criteria have been set – apart from the minimum requirement of seven years’ experience for a magistrate and 12 for a judge (and basic requisites like good conduct and so on). Unfortunately, there is no requirement to undergo compulsory training either before appointment or after. And the Committee has no role in the appointment of Adjudicators in the Small Claims Tribunals or of Commissioners for Justice.
It is true that these technically do not sit in a court, but they nevertheless preside over adjudicating tribunals, to which the principles of independence and impartiality also apply and where particular skills and aptitudes are also required.
If a nominee has a political post or affiliation, should that disqualify them from becoming a member of the judiciary?
No, definitely not. In the past, we have had outstanding members of the judiciary who had a political background. Albert Borg Oliver de Puget, who passed away recently, was a former Nationalist MP, appointed to the Bench by a Labour government soon after he failed to be elected. One could mention, among many others, Judges Joseph Flores and Anthony Montanaro Gauci.
In this area, however, perception is sometimes more important than reality.
If someone who has just been actively engaged in or with a political party becomes a judge the following week, in today’s world that is not acceptable, though it could have been acceptable decades back by colonial standards. The perception is that you are appointing someone of your own political inclination, simply to make things easier for the executive.
In today’s world, the objective, as opposed to the subjective, impartiality of judges and magistrates is given considerable weight, even in light of the case law of the European Court of Human Rights. I think what puts off successful lawyers from taking up a judicial appointment is the sheer workload, although obviously, it varies from person to person.
Hundreds of cases land in a new judge or magistrate’s lap a few days following their appointment, and more keep getting added every month. Then they are blamed for the delay in delivering judgments, when the delay in 99.9 per cent of the cases is due to the system, which is still at fault.
Any magistrate conducting an inquiry into the in genere still has to deal with all their other duties. The hundreds of other cases they may have could be put off to another date but are unlikely to be assigned to another magistrate.
The fact is that magistrates are generally ill-equipped, both from the training point of view and from the point of view of time and resources, to handle complicated and lengthy inquiries of this type.
To be fair, progress has recently been made insofar as conditions of service go, especially with the long-overdue introduction of a decent service pension, but that may still not be enough to attract successful lawyers in the numbers required to provide a fair, competent, but above all, efficient justice system.
The perception is that you are appointing someone of your own political inclination, simply to make things easier for the executive
According to the EU Justice Scoreboard, the pending caseload has improved, and the average is 400 days to conclude a case, down from 800 in 2010.
Rather than looking at statistics, which largely depend on how the information is gathered and processed, I would look at individual cases. A month ago or so, a case was decided by the First Court of the Civil Court dealing with a prison officer’s dismissal.
The writ of summons had been filed in 2000, so it took 17 years at one level of jurisdiction! I am in no way blaming the judge who delivered the judgment – for all I know that case may have been one of those passed on from one judge to the next with every retirement – but 17 years is just nonsensical.
Why should ordinary and uncomplicated criminal proceedings drag on for two or three years and then another year for delivery of judgment? Just read the law reports on the Times of Malta or the cases reported in other newspapers and then read the original on the Ministry of Justice website.
That is not one red card but two, by the standards adopted by the European Court of Human Rights, which must also be followed by our Constitutional Court.
The system must not only be fair, but judgments must also be delivered in a timely manner, not only for the benefit of the person accused, who should not have criminal charges hanging over their head for years, but also for the victims and for society.
Unfortunately, commencing in the late 1970s, early 1980s, a distortion began of the whole purpose of committal proceedings - or kumpilazzjoni – with deadlines for conclusion of the proceedings being extended by Parliament and magistrates succumbing to the temptation of ‘concluding’ the inquiry with a bare minimum of evidence to justify a decision that there is sufficient evidence for an indictment to be filed.
This has led to the interminable referrals by the Attorney General that we see today.
One area that worries me is the time it takes for ordinary appeals to be heard by the Court of Appeal composed of three judges. I say “ordinary appeals”, because some are fast-tracked in accordance with the law – like constitutional appeals. Indeed, it is because Parliament has decided to grant priority to certain appeals other than constitutional ones that there now is a backlog in the Court of Appeal.
Last January, you brought up the possibility of having a special branch of the judiciary to investigate and prosecute serious crime, rather than leaving it to the police. This idea has since been proposed by the Nationalist Party in its electoral manifesto. Do you think the idea will gain traction?
If my memory serves me right, something similar was proposed some years back under a Nationalist administration, but there was opposition from a number of quarters, including the Attorney General’s Office, and nothing came of it.
The intention was to separate or hive off the prosecutions department in the Attorney General’s Office and have a sort of director of public prosecutions appointed.
The problem is that unless you have a really independent investigative service for serious offences, you cannot feel confident that the police, part of the executive arm of government, will properly investigate offences possibly involving high-ranking people in the executive itself.
Unless you have a really independent investigative service for serious offences, you cannot feel confident that the police, part of the executive arm of government, will properly investigate offences possibly involving high-ranking people in the executive itself
I think it is important for us to start thinking about this. In England and Wales, which had a very similar system to ours until 1985, investigations were conducted by the police, who would then prosecute. Now each police force has to submit its investigation file to the Crown Prosecution Service, which then decides whether there are sufficient grounds for prosecution or not.
This still leaves the investigation in the hands of the police but subject to the review of staunchly independent bodies: the Inspectorates of Constabulary and the Independent Police Complaints Commission.
In Malta, the Independent Police Complaints Board is a very pale reflection, in terms of resources and powers, of the IPCC.
On the continent, the investigation and prosecution of serious offences are generally conducted by a public prosecutor who is a member of the judiciary or, at least, enjoys the same security of tenure as they do.
This guarantees more independence, not only in the prosecution stage but, above all, in the investigation stage – both of which are in the hands of the police in Malta.
In Malta, the Attorney General, who enjoys security of tenure, comes into the picture only after the record of committal proceedings is transmitted to him.
In some cases, his concurrence is required for the police to arraign, but the decision to arraign or otherwise remains in practice that of the executive police.
If there is a perception that incompetent people are at the helm, once the image is for any reason whatsoever tarnished, the system starts to crumble.
Do you think that is happening?
I don’t think one would necessarily say the system is crumbling, but there are certainly problems of perception with the way in which a number of State institutions are functioning.
That is why an investigative service for serious crimes in the hands of the judiciary would need to split functions, as it were: there would be judges or magistrates who investigate and prosecute only and those who adjudicate only.
Interestingly, the Criminal Code originally intended that serious offences be investigated if not by a magistrate at least under their direction. There is a provision which says that when the police receive a report, information or complaint requiring proceedings to be taken, they should first inform the Court of Magistrates or a magistrate to receive the necessary directions as to those proceedings.
There is, however, a proviso that if the police decide to proceed nonetheless, they can inform the magistrate when they arraign the person. That exception has now become the rule.
Are you satisfied with the legislative reaction following European Court of Human Rights decisions on Malta, particularly with regard to the enjoyment of property, which make up the bulk of the 46 cases (of 66 judgments) where Malta was in breach of the European Convention?
Some changes have been made in the last 10 years or so as far as expropriation and reform of rent laws are concerned.
However, the fact that the European Court still finds violations means that something is still amiss, either in the legislation or in its interpretation by the Maltese courts.
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