“Justice must be served with a common-sense approach based on the law and the goals of punishment, deterrence and rehabilitation,” prominent US Judge Rosemarie Aquilina, who is half Maltese, told The Sunday Times of Malta.
Indeed, common sense ought to prevail not only in the way judges and magistrates mete out justice but also in the manner in which the whole judicial structure is designed and functions. That will ensure that justice is not only done but is also seen to be done.
Judge Aquilina’s outspoken nature immediately drew criticism on the social media. A reader commented that when members of the judiciary think about themselves and not about the law, “they have profoundly misunderstood their role”.
Another responded that, notwithstanding the problem in Malta with regard to the proper administration of justice and with some members of the judiciary “who cannot resist the temptation of being prima donnas”, most keep a low profile and let their judgments speak for them.
That may be the case but it does not mean comments made by the US judge should go unheeded.
In the US, judges operate in a somewhat different environment. Judge Aquilina herself noted that, as a judge, she is limited in what she can say but, being elected by the people, she can serve as their voice. She makes a very powerful point: “When there is an obligation to speak about any injustice, judges cannot remain silent.”
She also underscored the need for “appropriate punishment... which gives voice to the victim and the community and deters others from [committing]... vile acts”. That is what the rule of law is about. Opening the Forensic Year in 2017, former chief justice Silvio Camilleri had put it in a different way: “If there is punishment for some but not for others, the courts remain no longer administrators of justice but are transformed into administrators of injustice since they end up penalising some but not others. Instead of rule of law we will have the rule of delinquents.”
A former high profile member of the judiciary in the UK, Sir Igor Judge, also with Maltese ancestry, had too stressed that the rule of law “protects us all, society, the community as a whole, from anarchy, from the law of the jungle, from the triumph of the wildest and worst of us”.
In an environment where doubts are raised on the rule of law and the independence of the judiciary – to mention two issues of direct relevance to the subject being addressed here – such words of wisdom should not only be food for thought. They should also spur members of the judiciary to take Judge Aquilina’s cue to “use the power of the bench as a healing power rather than as a punishing power”.
Maltese judges and magistrates may not be as free as Judge Aquilina to speak their mind in an interview with the media but they certainly have a powerful voice through their judgments. As Sir Igor had commented, echoing Lord Denning, ‘the people’s judge’, the judiciary has an institutional responsibility to ensure that inefficiencies in a legal system do not “turn justice sour”.
Despite the criticism levelled out at Judge Aquilina’s outspoken style, it would do Malta’s justice system a world of good if the judiciary took note of some of her recommendations and adopted them in practice.