Issue link: https://maltatoday.uberflip.com/i/598356
maltatoday, SUNDAY, 8 NOVEMBER 2015 15 man, he ruled against the Labour Party…" In that particular case, perhaps. But doesn't the fact that judges are politi- cally appointed also affect public per- ception? Even if the individual judges are beyond reproach… wouldn't there always be suspicion of bias, if judges are chosen directly from among the party faithful? "Well, having read Mintoff's judge- ment in the Ombudsman case, I don't think there is much room for interpretation. It was legally correct. Political considerations did not come into it at all. But this has been hap- pening for years. A number of judges and magistrates were involved with politics before being appointed to the bench. Magistrate Joe Cassar, for instance, was a parliamentary secretary in the Nationalist govern- ment. Magistrate Albert Borg Olivier de Puget was a Nationalist MP for I don't know how many years. Twenty or more. On the other side, there was Magistrate Philip Sciberras, again he was a Labour MP… Does he not see any problem in those appointments, either? "I don't see a problem with it my- self, no, because normally, when people are appointed magistrates, they forget their political affiliation. They decide cases in terms of the oath of allegiance which they took to the Constitution: namely, to be im- partial and independent when decid- ing cases." Coming back to the Bonello Com- mission's proposals: would political involvement be among the criteria looked into by the 'autonomous authority' when appointing magis- trates. "Yes. That would be one of the factors that would be looked at. But it does not necessarily mean that candidates with known political al- legiance would be automatically ex- cluded from the contest. You might be involved in politics, but you might still be an excellent lawyer who would fit the job description. What is important, however, is that if you are appointed a judge or magistrate, your political involvement would have to end…" This indirectly raises another is- sue: the removal of judges… which in the Maltese set-up has always proven to be particularly problem- atic, for much the same reason as their appointment. Only Parlia- ment has the power to remove a sitting judge… though it needs a two-thirds majority in the House. The issue rose dramatically to the fore in the recent case of Judge Lino Farrugia Sacco: who resisted resig- nation calls over allegations of im- proper conduct as president of the Malta Olympic Committee. Farru- gia Sacco also survived a number of attempts at impeachment, only to eventually retire. In a sense, Aquilina surprised many by writing a press article crit- icising the impeachment attempts. While not exactly defending Far- rugia Sacco's activities, Aquilina nonetheless attacked the legal basis on which he might otherwise have been impeached. What was it about the process leading to impeachment that both- ered the dean of the faculty of laws so much? Aquilina replies by referring to an- other case, Demicoli versus Malta, decided by the European Court of Human Rights. "There were quite a number of other judgements I also quoted in that article, too. But this one illustrates the issue well." Demicoli was the editor of a sa- tirical newspaper, Mhux Fl-Inter- ess tal-Poplu. He published a car- toon which caused offence to two members of parliament, who then hauled him up before the House of Representatives over 'breach of privilege'. "The EHCR ruled that the House of Representatives could not guar- antee a fair and impartial treatment of Demicoli. Why? Because the 'victims' in this case were the two MPs; these two MPs were prosecu- tors, who tried him in the House; they were jurors, who found him guilty; and they were also judges, who fined him. So essentially, there was a confusion of roles. It was a conflict of interest par excellence, I would say…" The same principle applies also to Farrugia Sacco. "The House of Rep- resentatives is not a judicial body. It is a political forum. The two roles should not be confused." And yet, the Demicoli case does not seem to follow the same pat- tern as Farrugia Sacco's. In the lat- ter case, there was the question of alleged involvement in the under- ground sale of Olympics tickets. MPs didn't really come into it at all… Aquilina disagrees. "If you look at the statements in the newspapers, you had a number of MPs – includ- ing the Opposition leader – mak- ing pressure so that the case would be brought before the House. And they were criticising the behaviour of Farrugia Sacco. Now, if you were to translate that into a court sce- nario: you cannot have the Chief Justice commenting in newspapers against a person who is going to ap- pear before him, and whose case he will have to decide. Undoubtedly, you and I would both claim that the Chief Justice is prejudiced in that scenario. The same thing hap- pened in this case…" The problem, he insists, concerns the procedure… and as such is un- related to the specifics of this par- ticular case. "This is not about Farrugia Sacco, what he did or did not do. Even if you take the Anton Depasquale proceedings, for example. There may have been a free vote given [in the impeachment motion], but ultimately the decision was taken on purely political grounds. It was not taken on legal or disciplinary grounds. Naturally I understand this, because that is Parliament. Parliament is political. But then, I cannot expect Parliament to pro- vide 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…" Interview Dean of the Faculty of Laws Prof. KEVIN AQUILINA explores the thin red line separating politics from the judiciary in Malta's legal system own court PHOTOGRAPHY BY RAY ATTARD