Issue link: https://maltatoday.uberflip.com/i/1529555
10 OPINION maltatoday | WEDNESDAY • 20 NOVEMBER 2024 More than one tribunal in Malta has not achieved complete independence and impartiality ON 22 October, 2024, a judg- ment was delivered by the Eu- ropean Court of Human Rights finding Malta in serious breach- es of human rights provisions and of not conforming to funda- mental precepts of a fair hearing. The judges in the European Court unanimously held that there had been a multitude of violations of the rights en- shrined in both the European Convention of Human Rights and national legislation. This might have passed as another run-of-the-mill judg- ment by the court - finding the state guilty of violating some fundamental human right and ordering the payment of con- sequential liquidated damages. Yet, it should not, as this judg- ment, five pages long, consti- tutes a damning telling off to our government. Briefly and factually, six mi- nor Bangladeshi nationals who arrived in Malta in 2022 after being rescued at sea were held in detention for six months. Throughout that time, they were subjected to inhuman or degrading treatment, were de- prived of their right to liberty and security, deprived of their right to have the lawfulness of detention decided speedily by a court, were not afforded an effective remedy, and had a flawed hearing in front of the Immigration Appeals Tribunal. It is this last point that should attract more attention and consideration. The court clear- ly and unanimously concluded that the tribunal did not con- form to the requirements of independence and impartiality. The tribunal's review of the immigrants' detention order proved to be an ineffective remedy, as the sole review of their detention took the form of a mass hearing, where a single decision confirmed the detention of approximately 47 individuals, instead of an indi- vidualised assessment for each person. No further automatic reviews, provided for by law, ensued. Worse, there was a lack of in- dependence and impartiality among the tribunal's members, who had close links to the exec- utive, providing no guarantees against outside pressure, and were appointed in the absence of a proper procedure for their appointment, together with no proper selection criteria based on merit. On this point, the government received a good battering. As the law currently reads, the Immigration Appeals Board is composed of a lawyer who shall preside, a person versed in immigration matters and another person, each of whom shall be appointed by the Presi- dent acting on the advice of the minister. They are appointed for three years but may be re- moved from office by the Presi- dent acting on the advice of the Prime Minister on grounds of gross negligence, conflict of in- terest, incompetence or acts or omissions unbecoming a mem- ber of the Board. In this latest judgment, most important of all, the court re- marked and emphasised the fact that both the European Commission and the Ven- ice Commission have been expressing serious concerns about the functioning of simi- lar tribunals that clearly lacked independence and impartiality, but to no avail. More than one tribunal in Malta has not achieved com- plete independence and impar- tiality. Executive control and interference remain. Independence and impartial- ity are related aspects of the wider principle of justice but are subtly different in their scope. Independence means being free from the interests of the state, that is, the executive and the legislature, and from the parties in any dispute. Any fair trial and hearing does not allow reasons of state to influence any decision reached by deci- sion-makers. Impartiality is closely linked to independence. Fundamen- tally, decision-makers must decide a case on the evidence available, free from influence, bias or prejudice, whether ac- tual or apparent. There are subjective crite- ria (prejudice or bias of a par- ticular decision-maker) and objective criteria (whether the composition of the tribunal of- fers sufficient guarantee of im- partiality) for assessing impar- tiality. These approaches can merge in a given case. Administrative tribunals play an extraordinarily important role in Maltese society. Day af- ter day, by the dozens, they sit in judgment on the rights and liabilities of Maltese and for- eigners present in our country. Workers' compensation, social security, financial institutions, immigration and the like. You name it; there's probably a tribunal for it under some enactment, applying objective standards to facts found after an adversarial process. Many of these tribunals are court substitutes. But they do not have anything like the status of courts. Whereas judicial independence is anchored in the Constitution and jealously safeguarded by the courts, the legal protections for tribunal independence are minimal, and the prospects for judicial re- form are not much greater. In such tribunals, the gov- ernment, represented by the respective executive authori- ty, is often a party in the pro- An indictment of the Maltese government Mark Said is a veteran lawyer Mark Said