Interview | Sunday, 02 November 2008

The Right Stuff

Human rights may be inalienable, fundamental, and entrenched in the Constitution; but as European Court of Human Rights Judge Giovanni Bonello points out, they’re only worth anything if you’re willing to fight for them.

Walking into the Casino Maltese in Valletta brings always with it a certain sensation of travelling backwards in time: a useful sensation, when you have just arrived 10 minutes late for an appointment with one of the European Court of Human Rights’ most notoriously punctual judges.
As I sit for an interview and a coffee with Judge (and newly elected ‘Johnny Walker Man of the Year’) Giovanni Bonello, he points out to me a barely recognisable former finance minister sitting some three tables away. Elsewhere, portraits of past Prime Ministers – some long dead – stare at each other vacantly across the hallway, as bow-tied waiters amble unhurriedly between one order for a cappuccino and another.
Everything seems to move in slow motion at the Casino Maltese; it is as though the place were somehow immune to the intractable vicissitudes of the ages.
As it happens, I am soon to discover that it is not the only part of Malta to suffer from this illusory effect. Despite the tremendous pace of change the country has witnessed in the past 25 years, it seems that some things have changed only very reluctantly, while others quite simply haven’t changed at all.
Two recent events seem to illustrate this fact, albeit in very different ways. The first is the monumental irony of last week’s presentation of the Gaddafi Human Rights Award to former Prime Minister Dom Mintoff, during whose tenure of office (1971 - 1984) Malta witnessed some of its worst-ever human rights abuses.
Giovanni Bonello was himself an active critic of Mintoff’s policies back then... or so it is widely believed, at any rate. So what does he make of the award today?
There is a twinkle behind Bonello’s spectacles as he replies.
“Yes, I’ve heard it said that I was the author or contributor of Page 13,” he says, with reference to the most widely read political news column of The Sunday Times in the 1970s and 1980s. “But I have never actually confirmed or denied the rumour myself...”
Be that as it may, no one can deny that Bonello is Malta’s appointee to the European Court of Human Rights: an institution with the power to overrule any national Constitutional Court, making it the single most powerful legal institution in Europe.
How does he view the controversial award from this perspective? What does it say about the notion of human rights to begin with?
“Clearly, the words ‘human rights’ do not mean the same thing to everyone who uses them,” he replies. “The same goes for a word like ‘democracy’, which means different things to different regimes. Former Communist countries, for example, all styled themselves ‘democratic republics’. Whether they were democratic in the eyes of the rest of Europe is another matter...”
Any discussion on this topic, he continues, will invariably be hampered by these linguistic constraints.
“If we could all settle down and agree on a definition of concepts such as democracy and human rights, then we could start talking. But judging by the Gaddafi Human Rights Award, there is evidently no agreement on the definition.”
A second, more powerful reminder of the skeletons in Malta’s human rights closet takes the form of the €180,000 compensation awarded this week to Anthony Mifsud, the former prison warder who was framed for complicity in the escape of two prisoners from Kordin in 1982.
One of the escaped convicts was Louis Bartolo, imprisoned for the murder of Malta’s most notorious gangster: John Bondin aka ‘il-Fusellu’, who was also Mintoff’s right hand man. As for Mifsud himself, he was so severely traumatised by his five-day ordeal at the Floriana Depot – where he was interrogated and tortured by two superintendents, with the apparent blessing of the Police Commissioner of the time – that he still requires therapy to this day.
“If you ask me, what is newsworthy about this case is not so much the compensation itself, but the fact that it took 26 whole years at first instance – and will take longer if there is an appeal,” Bonello points out. “That is an extraordinarily long time to await justice. It is absolutely shameful. Something is clearly wrong in the system...”
Bonello also warns that it is still too early to sound the bells of victory.
“Realistically, you can’t talk of ‘closure’ until the judgement is finally confirmed by the court of appeal; and even then, only when the victim actually gets hold of the money...”
With former Police Commissioner Lawrence Pullicino already signalling his intention to appeal the judgement, it seems Mifsud’s ordeal is not quite over yet. But there is another aspect to the case that remains curiously unresolved more than 25 years later.
Despite a change of government in 1987, and the promise of national reconciliation based on keywords such as justice, truth and liberty, the two superintendents who tortured Mifsud not only escaped punishment for their crimes; but they were both retained in the Force, and one of them was even promoted to Assistant Commissioner... all this under a Nationalist administration.
More worryingly still, the same intrinsic arrest conditions that prevailed in Pullicino’s time are still in place today. There was an overhaul of arrest procedure in 2004, supposedly allowing for access to legal representation, among other rights... but the relevant legal notices were never published in the Government Gazette, which means that to all intents and purposes, local detainee rights have not actually evolved one iota since the days when Mifsud was forced to sign his confession at gunpoint; or when Nardu Debono was beaten to death in police custody.
So isn’t the present administration also guilty of abdicating from its responsibility to safeguard human rights?
Bonello takes a long sip from his espresso before answering. “Access to a lawyer while in detention is generally considered the very minimum of detainees’ rights, so much so that it is taken for granted in the rest of Europe. Malta is probably the only European country where this right has not been properly translated into law.”
The situation, Bonello adds, constitutes what he calls a “deficit in human rights protection.”
“Simply put, the fewer guarantees there are, the more convenient it is for the government of the day,” he adds. “Malta should really pull its socks up and introduce these guarantees once and for all. After all, you never know who’s going to need them in future...”
Giovanni Bonello comes to this issue not just from the perspective of a European Court judge; he is also a local historian in his own right, and can fall back on a wealth of historical and political detail.
“I don’t see why it should take so long to effect these reforms. This issue was on the agenda long before 1987. The PN had rightly insisted on this while in Opposition, and as far as I recall it featured in one of its electoral programmes... either 1981 or 1987. Besides, it’s not as though we’d be starting a revolution, or anything like that. It would merely be a case of accepting what is already standard practice in all civilised countries in the world...”
The lack of legal representation is not the only anomaly to stare us all in the face. In recent months and years, there have been a number of foreign nationals hauled before the courts on drug importation charges. Without going into the merits of any individual case (as a practising judge, Bonello warned me beforehand that he wouldn’t be drawn into any such comment) I cite to him an observation made by a Somali national, who wrote in a statement that: “(the prosecution) is made up of the very same police inspectors who arrested and interrogated me...”
How does Judge Bonello account for the fact that even an asylum seeker from Somalia – a country which lacks a functional government, let alone any deep-seated tradition of human rights – can recognise incongruities in a system we all take for granted?
Giovanni Bonello acknowledges that the situation regarding the prosecution office is far from ideal.
“In Malta we follow the British system, which appoints the same person as both Attorney General and chief prosecution officer,” he begins. “As systems go, you could almost call it schizophrenic. The first office is that of government’s legal advisor. The second is a supposedly independent prosecutor. This means that every day, these people have to change hats around 15 times at least...”
For this reason, Judge Bonello adds, most countries prefer to keep the two offices studiously apart. However, he stressed that his was not a criticism of the individuals concerned.
“I think our Attorney Generals have acquitted themselves well, considering the intrinsic difficulties of their office. But yes, maybe we should rethink the entire system.”
Another case of multiple hats worn by the same person involves the Justice Ministry, which also doubles up as Ministry for Home Affairs. Effectively, this means that the same person politically responsible for the Police Force, the prisons and the office of the Attorney General, is also responsible for the administration of the Law Courts. Is this also a case of political schizophrenia?”
Bonello acknowledges a slight difference in this particular example... but only very slight.
“Ministers are essentially politicians; they are not part of the legal system itself,” he explains. “Having said that, I still think the ideal solution would be two separate persons wearing two different hats. A person with the right integrity will be able to juggle the two offices simultaneously... but it makes more sense to have two people doing the juggling.”
While remaining sceptical of the general system, Bonello concedes it is not a matter requiring urgent attention.
“We haven’t witnessed any traumatic impacts on the status quo. In cases like these, difficulties arise only when the roles of subordinate and independent offices are mixed. You can’t be subordinate one minute, then independent the next.”
On the subject of schizophrenia and Cabinet ministers, I can’t resist asking what Giovanni Bonello makes of the various attempts over the years to bring order to that example of institutionalised chaos otherwise known as the Maltese Courts of Justice.
Bonello himself has already suggested that something may be seriously amiss, in connection with the 26-year delay in justice in the Mifsud compensation case. And that is but one case out of thousands which were needlessly prolonged for years, if not decades.
“Let me put it this way: whenever I meet a newly appointed government minister, I always say ‘congratulations’. But in the case of Justice Ministers, I say ‘lungi giorni’ (my condolences) instead...”
The reason, according to Bonello, is that Justice Ministers face the impossible task of bringing an “unmanageable monster” to heel.
“All ministers have tried in their own way, no doubt with the best of intentions, but with little margin of success,” he continues. “Mind you, law courts the world over suffer from similar intrinsic problems: lack of efficiency, etc. I myself can’t point a finger at any one specific reason why our own law courts are short of perfect. There are a hundred reasons. You can blame judges if you like, you can blame the government for not providing enough in the way of support systems; you can blame lawyers for taking on too much work... after all a lawyer can’t split himself into two, four, 10 different people... but something is clearly not right. Any system whereby as many as 60 cases have to be heard in one day by the same judge is plainly flawed. It becomes little more than a lottery...”
Returning to a theme raised earlier with regard to human rights – in particular, Bonello’s argument that different nations and individuals tend to interpret the concept differently – I turn to a topic that is currently the source of much heated debate locally: Divorce.
There has been much talk of late that Malta was somehow being denied its rights by a government apparently keen on resisting this social development at all costs. Letters appearing recently in the newspapers talk of divorce as a “fundamental human right”; and yet, it is not listed in the charter of human rights, fundamental or otherwise. Surely the European Court of Human Rights would be able to clarify this apparent discrepancy... and almost immediately, Giovanni Bonello dispels the illusion that human rights are written in stone.
“There are two general concepts which define human rights,” he begins. “On one hand there is the European Convention, which gives a basic definition accepted by all 48 Council of Europe member states. Then there is the European Court itself, which has expanded those definitions through its own judgments. But until now, no, it has not defined divorce as a fundamental right.”
While on this subject Bonello is unable to conceal a certain impatience with the so-called ‘national debate’ on this issue.
“If you ask me, we are putting the cart before the horse. All this discussion, all these letters in the paper, all these opinions... very good for the purposes of kickstarting a debate, but they don;e actually lead anywhere. And all the while, nobody has ever actually contested the issue in court...”
Admittedly it is not as straightforward as all that. In order to initiate proceedings in Strastbourg, one must first exhaust all available legal options in one’s own country. This would entail opening a Constitutional case in Malta; a process which Bonello explains comes in two separate phases; first a Civil, then a Constitutional court hearing. It is only after losing both these proceedings that one can take the matter to Europe.
“Even then, it’s not said that the EHCR would rule in favour,” he admits. “After all the EHCR does not govern governments; it only steps in cases where human rights are violated. If the court does not define divorce as a human right, then it would have no jurisdiction over individual States and how they legislate on the matter. But if, on the other hand, it does rule that the absence of divorce constitutes a breach of human rights, then the situation would be reversed.”
Bonello points out a similar situation had already arisen regarding the rent law issue, when a number of landlords took the government to court for depriving their of their property rights. The case was lost at local Constitutional court level... but when they took it to the ECHR, they won hands down. The result? The same government which had resisted changing the archaic 1939 rent regime, is now itself presenting a White Paper for Rent Reform.
There is a lesson in there somewhere. After all, one man’s injustice is another’s inalienable right.

Any comments?
If you wish your comments to be published in our Letters pages please click button below.
Please write a contact number and a postal address where you may be contacted.



Copyright © MediaToday Co. Ltd, Vjal ir-Rihan, San Gwann SGN 9016, Malta, Europe
Managing editor Saviour Balzan | Tel. ++356 21382741 | Fax: ++356 21385075 | Email