It’s an odd quirk of the Maltese language. A group of four people amounts to an insignificant, unrepresentative nothing. Think of the legendary “erba’ qtates” (four cats), the description a PN grandee had attributed to the Green Party in 1992 on the eve of an election when they secured over 4,000 votes. Erbat elef qattus (four thousand cats) did not have the same ring to it.
A judge remarked last week in a crowded courtroom that “erba’ anarkiċi” were trying to bring down the entire edifice of justice. It was a message the judge spent the last two weeks repeating to anyone polite enough to listen.
The court action by NGO Repubblika is no longer an academic shot in the dark, a bureaucratic nuisance perpetrated by people with nothing better to do. It is now a profound challenge right at the heart of the mechanics of our democracy, an examination of the very fundamentals that for decades we have taken for granted.
And now there is a real risk that the answers to the questions being asked do more than raise a chuckle in a university lecture room. There’s a risk of substantial consequences.
Why are we here? Because you can have a polity that looks like a democracy and calls itself one but a closer look will show there is emptiness inside the shell.
If we examine free speech in our country, we realise it’s nowhere near as healthy as it looks. Media ‘pluralism’ is monopolised by political parties. Libel suits are piled up on journalists like crossed concrete beams. A journalist has been killed.
If we examine elections in our country, we feel there has to be some doubt about how free and fair they are. Political parties are funded by private interests. The spending power of one party is inexplicable. The crippling debts of the other are unavoidable. TV stations are factories of spin and honest news on the small screen are rare.
In place of information, citizens are equipped to vote with manipulated social media adverts that transform voters into drones jerking to party-controlled stimuli.
If we examine institutions in our country, we wonder why they exist at all. Many are left without governors to run them. Others are emasculated by repeated hiring and firing triggered by a ruthless Prime Minister.
Others are occupied by party cronies that trade their dignity for the rewards handed down to them. And the few courageously independent actors like the Ombudsman or the Auditor General are ignored.
Faced by all these failures of the democratic framework, we preferred to live under the illusion that the courts would fiercely protect us. The reputation is not altogether undeserved. Some of our judges and magistrates are brilliant legal minds, fearless defenders of justice and pursuivants of truth: wise women and men that leave fear of consequence outside their courtroom.
We are looking for protection of all judges from the clutches of the government’s power
By the way, that applies to a number of judges who in earlier stages of their lives were politically engaged and actively partisan. A partisan past is not necessarily an inescapable inhibition to fair and independent judgement.
But a partisan past is material evidence in the argument that the power of Malta’s prime minister to choose who gets to be a magistrate or a judge bursts the bubble that our judiciary is truly independent.
Why does this matter? Because one of the defining features of democratic life is that rules apply equally to all. Any Jane Doe who feels her rights have been breached by the most powerful agent in the state – the government – is entitled to argue in front of a judge as an equally treated party and if she’s right and the government is wrong, she is entitled to expect justice.
Allow me to underline expectation here. Judicial independence is not only measured by process and outcome but also by the reasonable expectation that it raises in private citizens. When we got to a point when the courts are not trusted to give independent judgement – when the bubble of illusion bursts – the democratic utility of the courts is lost.
The Soviet Union had courts. They could be relied upon to decide fairly in private disputes or in the prosecution of ordinary crimes. But if the government had an interest in the outcome, they were not expected to be fair. One other reason why that polity looked like a democracy but wasn’t one.
Are Maltese courts comparable with Soviet courts? That’s ridiculous. But, Repubblika is arguing, the laws protecting judges from the interference of the government have not been updated in more than 50 years and their weakness has been horribly abused in the last few years.
The government reminds us all that improvements were made in 2016. If anything was improved in 2016 – the right of lawyers to apply to be made judge was introduced – the key problem remained unchanged.
Malta’s own court of appeal a few weeks ago supported our view on this in unambiguous terms: the prime minister’s power to appoint judges is entirely unfettered.
But that’s only one part of the problem. If the power of influence of the prime minister stopped on the day of appointment, it could be argued that judges could subsequently feel sufficiently secure to decide independently of the interests of the government that appointed them. Doesn’t the US President get to nominate Supreme Court judges and Senators get to approve them?
After appointment, here in Malta, the prime minister retains the power to decide which magistrates get to retire in that rank and which get promoted to become judges or chief justices with a better pension after retirement. After retirement, the prime minister gets to decide which judges get to continue working running quangos or conducting inquiries and which are kicked out on their retirement day.
That last point by the way is identical to one of the offences found in the case of Poland: the president there has the power to decide which judges get to continue to work beyond their retirement date.
The European Court of Justice found that power of the Polish president contrary to EU law. EU law requires judicial independence in all EU countries not just because it is a nice thing to have but because if you – a Maltese citizen – end up in a Polish court arguing with the Polish government you have a right to expect the judge deciding your case to be independent of the other side. Logically the same applies to a Polish citizen facing a Maltese court.
An anarchist – or four – would not worry too much about the independence of judges. They won’t want judges. They’d want to blow them up.
Whatever you may call the ‘four’ at Repubblika, they – we – are looking for protection of all judges from the clutches of the government’s power. That’s the opposite of anarchy. That’s the rule of law. And if one, or four, ask for the protection of the law a judge is bound to listen. No number is too small in the expectation of justice.
And Repubblika amounts to rather more than four.