Issue link: https://maltatoday.uberflip.com/i/598356
14 IT'S a pity my generation never had to study Latin at school. Otherwise, I would have known straight away that 'Nemo iudex in casa sua' has noth- ing to do with the titular Clownfish in Pixar's animated classic 'Finding Nemo'. On the contrary, it is a legal term which forms one of the founding principles of justice in any free coun- try. "No man shall be a judge in his own court". And as I am about to discover, it is also a principle that is routinely flouted in the Maltese sce- nario. One person who has complained often (and vocally) about this prob- lem is professor Kevin Aquilina, dean of the faculty of laws at the Uni- versity of Malta. For some time now, Aquilina's various press contribu- tions have highlighted specific short- comings in Malta's legal and juridical infrastructure. Given that these shortcomings range from problems within the Constitution – the cornerstone of Maltese law – to issues such as po- litical interference in the course of justice, it is safe to say that we are talking about the full extent of the country's entire legal system. Let's start with the Constitution. Aquilina is on record stating that this all-important document needs a radical overhaul on a number of counts. In what way does it need to change, and why is this change so important? "Basically, my opinion is that we have to revise the Constitution: mainly because the constitution was promulgated in 1964, 51 years ago. Now, although over these 51 years we have amended the constitu- tion piecemeal, unfortunately there hasn't been a holistic revision. More importantly, the revisions that have been done in the past 51 years were done by parliament without the in- volvement of the citizens. I think the constitution is not just any arti- cle of law; it is the fundamental law of the country. So I think that the people should subscribe voluntar- ily to it. It shouldn't just be imposed through the will of the members of parliament. The people should have a say…" What kind of say does he have in mind? The original 1964 Constitu- tion, for instance, was approved by national referendum… "I think a Constitutional conven- tion should be held, in which mem- bers of civil society, local councils, NGOs, and various interest groups would contribute. The result would be a Constitution that is accepted by the vast majority of the people in Malta…" And yet, this process is supposed to already be underway. There is (or should be) an ongoing forum to dis- cuss the issue under the auspices of the office of the President… He nods. "What happened was that former President Dr George Abela had convened a number of fora, and in the last two under his presidency he had discussed the constitution. The Labour Party had also stated that, once in government, it would organise a Constitutional convention: and in fact, if you look at last year's budget, and even this year's, there are 50,000 euros voted for this purpose. As far as I am aware, however, no concrete action has been taken to or- ganise this convention… though the budget has been approved, at least of last year. Moreover, I am also aware that the government has appointed a committee, chaired by [former MP] Dr Franco Debono, in order to pub- licise the context of the Constitution. I think that is part of the strategy that will subsequently lead to the Consti- tution convention – at least, that is my reading of events." If he were to isolate the parts that needed revision most urgently, which would they be? "Well, it's not easy to pinpoint just one or two. There are too many. If you look at neutrality, that is an issue unto itself. If you look at the powers of the Presidency… the composition of the constitutional authorities, es- pecially the Broadcasting Author- ity… should it still be composed of two representatives of the Labour and Nationalist Parties apiece? Or should it be composed of representa- tives in the public interest? I think there is quite a lot to look at in the Constitution. It's not a case of simply amending one provision here and there…" The Constitution, he adds, is more than a collection of fundamental laws. It also circumscribes the identi- ty of the country: its symbols, its val- ues, and its aspirations. And this can be problematic, given that Malta's 'national identity' is not something that was set in stone in 1964. "That is why you need to take a holistic point of view. You need to look at the developments which have taken place in Malta over these past 51 years. And you also want to look at the future of Malta: where do we want this country to go? It's not an exercise that can be done in just two or three meetings. There should be working groups discussing each and every aspect..." One issue that stands out is repeti- tion. Having been variously amend- ed over the years, some parts of the document have been superseded or unnecessarily added to, without ever being removed. "With regard to human rights alone, there are two sets of provi- sions: Chapter 4 deals with funda- mental freedoms and human rights; at the same time, there is the Euro- pean Convention of HR, which is enshrined in Maltese law. I would say the two chapters complement each other. But still, do we need two Constitutional provisions for hu- man rights? What about those areas where the two articles replicate each other? Why have two identical laws on freedom of expression, for in- stance? Or freedom of association, etc.? I think we should have one set of human rights laws; we don't need all these human rights instruments spread out across the statute book. The European Convention of HR alone would suffice; and where this Convention is silent, we can intro- duce other rights that might not be available at European level." There may however be practical problems with amending the Con- stitution on that scale. One curios- ity inherent in Maltese law is that the Constitutional Court does not have the power to repeal an illegal law. That is the prerogative of Parlia- ment, which has sometimes allowed laws to stand even after they were declared unconstitutional… "Yes. If you read the Bonello Com- mission report (2013), we had made a proposal that once the Constitu- tional Court declares a law to be un- constitutional, then that judgment would bind, not only the parties to that judgment, but the country as a whole. In other words, the uncon- stitutional law would be unconsti- tutional in all cases. Unfortunately, what is happening in our legal system is that if, for example, you challenge a law and are found to be correct.., and then I subsequently challenge the same law… the Constitutional case would have to hear the case afresh, notwithstanding that there has al- ready been a pronouncement by the same court that the law is null, and therefore not applicable in Malta. I think this needs to be seen to. If the Constitution is amended, this is one of the factors that would have to be given due attention." Nor is this the only area where the boundary between Parliamen- tary and judicial jurisdiction remains unclear. One frequent complaint, raised by Aquilina and many others, concerns the appointment of judges and magistrates. At present, the judiciary is ap- pointed directly by the Cabinet of Ministers. Aquilina makes no secret of his profound disagreement with this model. "What we suggested in the Bonello Commission was that we depart from the colonial system of having the judiciary appointed by the gov- ernment. As far as I am aware, we are the only country in Europe to retain this system. For example, in the UK – which is where we took our model of judicial appointments from – they have moved on. Today, the judiciary is appointed by a judicial appointments committee. In other jurisdictions on the continent, such as Italy, Spain, Portugal, etc., they are appointed by a higher council for the judiciary. In that scenario, it is the judiciary that appoints, not the gov- ernment…. In a country as small as Malta, however, direct analogies might not apply. In Italy, for instance, one has to take a specific course to qualify as a judge; but in a scenario where only a handful of vacancies become avail- able after a number of years, replicat- ing that system would not work in practice. "The Bonello Commission sug- gested that the judiciary should be appointed by an independent and autonomous authority, following a call for expressions of interest. The authority would be in a position to receive applications, interview prospective candidates, conduct re- search on those individuals to check for allegiances… by 'allegiances', I don't mean political, but in the sense of whether they are members of a se- cret organisation. Interviews should be held in public, he adds, to ensure transparency and accountability. "Unfortunately, the present scenar- io is totally lacking in transparency. It is totally secret. We don't even know what considerations are taken into account when a person is appointed magistrate or judge. Are there any criteria being followed? Are there any checks being made, regarding busi- ness affiliations, social affiliations, and so on? Nothing of this process really takes place in practice… Aquilina argues we should take note of what is happening every- where else in Europe. "We should pull our socks up, and move along the European model, which has long ditched the system we use at present. Our judiciary are basically political appointees…" Speaking of which, it has been not- ed that governments tend to appoint 'like-minded' individuals to the judi- cial bench. The last wave of magiste- rial appointments included a former Labour MP and editor of the Labour Party newspaper, Wenzu Mintoff, as well as a former One TV journalist, Joe Mifsud. In this respect, hasn't the judiciary become an extension of the political tug-of-war between two po- litical parties? Aquilina however refuses to con- template the possibility of political infiltration in the judicial machine. "Of course, when these people be- come judges and magistrates, they don't decide cases on the basis of their political opinions. Wenzu Min- toff, for instance: we all know what his political allegiance is; but in the recent case involving the Ombuds- Interview By Raphael Vassallo maltatoday, SUNDAY, 8 NOVEMBER 2015 To judge in one's own Unfortunately, the present scenario is totally lacking in transparency. It is totally secret. We don't even know what considerations are taken into account when a person is appointed magistrate or judge SECRECY I cannot expect Parliament to provide the setting for a fair trial: be it in the case of Demicoli, Depasquale, Farrugia Sacco or anyone else. That is the problem with Parliament. It can never give a fair trial…" FAIR TRIAL