The Minister of Justice thinks he can dictate the way the European Court of Human Rights selects its judges. He thinks that the system he and his government adopt in the appointment of judges and magistrates is the same with the European Court. But Strasbourg and the European Court of Human Rights are teaching him and his government a lesson in the independence of the judiciary: that a judge does not qualify as a judge because of his connections with the government of the day, but on his or her merits. Not only that, but the press also reported that the Court even suggested we should nominate a judge from another country who will be representing Malta, together with the other judges in the European Court, as if we have no eligible candidates in Malta fit for the job.
We have heard ad nauseam the reason why the three judges recommended by the government for the European Court of Human Rights (ECHR) were refused: because they are all male judges. We have also been told every time there is the voting session due, that this time the government has made the necessary lobbying; that this time the government is going to get it right, and that the present Chief Justice is going to make it to Strasbourg.
Let’s face it, everybody knows that out of these three, the Chief Justice is being pushed by the government for the post. I pity him in a way – every time they raise his hopes, assuring him that he can get ready for Strasbourg. Yet again, Malta has not made the test and our three candidates have failed it.
I find it very hard to believe that the reason is only that of the absence of a female candidate, just as much as I find it hard to believe that the government does not see any eligibility in the female lawyers for the post. I know for a fact that when the call for applications was opened, there were female lawyers who applied for the post but who failed the government test.
It is not true that there are no females who can make it to Strasbourg; the truth of the matter is that the government thinks that it can impose its preference on Strasbourg. The government thinks that it is dealing with Brussels, where any person it appoints as judge to the European Court of Justice (the EU court) is automatically accepted.
If the government really believes the issue is one of experience, may I remind it that the two judges serving at the European Court of Justice had no experience or knowledge of European law when they were selected and yet, it seems they are doing a very fine job as their tenure was extended for another term.
The government thinks it can fiddle with the independence of the judiciary the way it does here. It makes sure it appoints members of the judiciary that are its allies; it makes sure that sensitive cases are given to judges who are its allies; it rules out lawyers whose marriage has broken down; and it interferes in many ways in the independence of the judiciary.
The government thinks the people in Strasbourg do not know that the decisions of the Constitutional Court have been mostly decided in favour of the government. I cannot say if this was by accident, but the truth of the matter is that our judges have in most cases proved nothing wrong in the government’s doing when it comes to alleged breaches of human rights. I know this point was never mentioned in the press or by the European Court of Human Rights but I assume that in our three candidates, they have also checked their work in the Constitutional Court in Malta.
It is amazing how if you log onto the website of the European Court of Justice and click on the resumé of our three candidates, it shows you only the cases that they have decided against the government and oddly enough, they were all cases relating to the Labour administration. It goes without saying that these three candidates found nothing odd in the government’s actions in the past twenty years or so, and it is no wonder, therefore, that none of the three is making it to Brussels.
I know that I am sacrificing my bread and butter in writing this but we cannot continue to turn a Nelson’s eye in the way the government is treating the independence of the judiciary in Malta. The motto ‘obey or be damned’ must stop once and for all. But our judges seem to be so complacent!
It is true that the independence of the judiciary does not mean a state within a state and I, for one, was the first to criticize the Opposition in the way it dealt with the impeachment of Judge Depasquale. But now we have gone to the other extreme: the government’s interference in the independence of the judiciary has become very dangerous.
You are appointed to the bench only thanks to your connections with the government; you continue to be called a judge or a magistrate or a Chief Justice when you are appointed in government boards; you accept the fact that enquiries are conducted by people who are allies to the government so that you can easily assume what their conclusions will be before they even started their appointment.
Take the case of poor Matthew Psaila: there was negligence but none of his superiors is responsible for negligence when at the same time two of his colleagues (the lowest rank, of course) are being prosecuted for negligence. So now we have the anomalous situation when the chief is not responsible, but the janitor is! But this is Malta when the highest rank brings with it only higher wages and more perks, but not more responsibility.
But going back to the appointment of a Maltese judge at the European Court of Human Rights, the media and the Opposition must take the matter more seriously and inform us as to what is exactly happening. The situation has never happened before in that Mr Justice Giovanni Bonello and Mr Justice G Mifsud Bonnici were accepted without any hesitation in the arms of the European Court of Human Rights, only that these two had a track record of cases against the Labour government wherein these three candidates have a record of cases decided in favour of the Nationalist government.
I am not casting any doubt on their integrity not at all; what I am saying is that the people voting for their eligibility in Strasbourg are taking all these factors in consideration over and above that of the lack of female participants.
There is a big lesson in all this: that the recipe for success here does not work everywhere!
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But Strasbourg and the European Court of Human Rights are teaching him and his government a lesson in the independence of the judiciary: that a judge does not qualify as a judge because of his connections with the government of the day, but on his or her merits. Not only that, but the press also reported that the Court even suggested we should nominate a judge from another country who will be representing Malta, together with the other judges in the European Court, as if we have no eligible candidates in Malta fit for the job.
