The government has lost its bid to block the NGO Repubblika from arguing in court that Malta’s judiciary is not free from undemocratic interference. The matter will now be heard in the constitutional court.
That’s a very significant achievement for a fledgling NGO that was set up just last January.
Repubblika is bringing to the courts a challenge to the very foundations of our democracy. And the appeals court last week highlighted the weakness of a key argument the government has repeatedly used to block this category of challenges.
Paraphrasing, the courts said “it’s always been that way” does not cut it any longer.
Judges have been appointed by prime ministers in Malta since our first day as an independent country. All iterations of our Constitution gave the chief executive unfettered discretion when choosing which lawyers become magistrates and who of those can be promoted to judgeship or made chief justice. And then the prime minister also gets to decide who gets to be rewarded after retirement with government posts, embassies or part-time work on inquiries.
It has always been that way, true. And mistakes have been made in the past. Retired or failed politicians were made magistrates and judges in the past. And judges that would eventually be charged with and convicted for corruption were also appointed by past prime ministers.
But the weakness of executive discretion in the appointment of judges has never been as dramatically self-evident as it is now. The Chief Justice used to be a Labour Party candidate, as was another judge. Another judge used to be deputy leader of the Labour Party. Another was editor of the Labour newspaper and president of Labour’s youth wing. Another three worked in the private staff of Labour ministers; one of them was regional president of the Labour Party. Another is the sister of a Labour minister and was promoted in spite of documented misbehaviour.
A magistrate was a law office partner with a Labour deputy leader. Another was a Labour candidate and party official. Another was a Labour mayor. Another is the daughter of a former Labour Party deputy leader and another a daughter of a former Labour minister. Another is the daughter-in-law of the Labour Party’s number one lawyer.
These amount to an overwhelming majority of the appointments made by Joseph Muscat.
Most of the individual judges and magistrates have undoubted legal competence and there are doubts on the individual eligibility of none but very few of them. But there’s a big picture.
And that big picture shows that Muscat’s government is methodically seeking a partisan takeover of the judiciary. He is organising a judicial framework where anyone can seek timely, expert and fair justice unless their dispute is with the Labour Party, or the Labour government, or of course, Muscat and his friends.
It is not just some commonplace maxim that justice must be seen to be done. The challenge Repubblika is placing in front of the courts is not simply that the fact that the prime minister gets to choose the judges is a threat to judicial independence. It is true to say that that threat has existed since 1964 and little was ever done about it.
Our mafia does not need leather-jacket thugs or crass baseball bats. But it still dabbles in full-scale extortion
But what motivates us to act now is that this is no longer just a threat. The government is interfering in judicial independence. The executive is assuming political control of the third branch of government, the judiciary. And it is doing that in a context where the second branch of government, Parliament, is a joke. At this rate there will soon be no one left to say ‘no’ to Muscat.
In place of separation of powers, we have their complete absorption in the person, the interests and the whims of our elected and very popular monarch: King Joseph I.
Someone has to challenge that, and last week the appeals court decided that Repubblika is entitled to do so.
This is the vocation of civil society. This is how we can make a difference. But we admit we come late to this party. We are rightly criticised that we have not thought of this before. Malta’s civil society has been weak in examining and fighting to preserve and enhance the health of our democracy. We have relied on the benevolence of the powerful and the effectiveness of our vote in elections after five-year intervals to ensure that our rights are protected.
So, as a people, we have lowered our guard and paid no regard as our democracy was taken away from us. We are all frogs in this bubbling tub. And we think we’re enjoying this bath.
We need to fight back. In the courts and elsewhere.
For the second anniversary of the killing of Daphne Caruana Galizia, Repubblika has invited two guests from Italy to speak at the protest demonstration planned for October 16. One is Fr Luigi Ciotti, who founded an umbrella NGO called Libera dalle Mafie. He was one of the leading campaigners to give local communities the courage to refuse to pay the mafia the pizzo, the extorted share of all economic activity paid to local hoods in the territories they control.
We think this is alien to us. We think this only happens in Sicily or Calabria, and pizzo does not translate to our context because we have nothing like it. Let me translate pizzo to ‘silent partner’, and then things will feel more familiar.
In hushed whispers, many will admit that there are sectors of our economy that are not open to all that may be interested. And for those that are allowed in, there’s an entrance ticket. They have to have ‘silent partners’ who bring nothing to the business except the serenity that one can stay in that business without some authority or some agency somewhere finding a problem that could slow your business down or even drive it out.
Our mafia does not need leather-jacket thugs or crass baseball bats. But it still dabbles in full-scale extortion. We are living in the shadow of our own home-grown mafia.
And the mafia – that collusion between business and power that starts out as voluntary and becomes an inescapable hell – cannot be overcome if the police is in its pockets and judges live in fear of it.
Another way of calling the gaunt silence around this rotten reality that has creeped over our country is omertà. That’s what Don Ciotti’s civil society campaign sought to break.
Another guest for October 16 is Leoluca Orlando, mayor of Palermo. He reminds us that we have a right to expect leadership from politicians who are free of collusion with crime. We are entitled to political leadership that is not a compromised silent partner.
We are entitled to free judges as much as we’re entitled to honest politicians.
We are entitled to be liberi dalle mafie. We are entitled to be free.
Help Repubblika do this job. Be part of the change you are entitled to. Ask for a membership application on firstname.lastname@example.org.
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