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The Light Brigade on the Bench The sentence passed on the former Chief Justice found guilty of accepting a bribe was found to be scandalously lenient by many people, but this was not only the case in which the result of a trial has caused dismay. A gang rape in St George’s Bay results in a slap on the wrist, while neglect in filing VAT returns produces a fine which, converted into time served in prison, is the equivalent of a number of years of imprisonment. The perception of inequality before the law; that the sentence meted out depends as much on the personality of the judge as on the prescriptions of the law, undermines the belief in the criminal justice system. The judges and lawyers who live by the law may be convinced that justice is done coherently but that is not enough. This may be their domain but it should never be considered their exclusive domain. Assuming that justice is done, it must also be seen to be done. A haughty dismissal of public bewilderment is a dereliction of duty as culpable as surrender to a lynch mob. Where they do enjoy some measure of discretion they jealously guard their powers and privileges, their independence from any influence whatsoever including one another. In Maltese law precedent is persuasive not binding. Caselaw is quoted to good effect in the general run of things and is often followed by the courts but there is nothing to prevent any judge from contradicting an established precedent. There have been cases of magistrates repeatedly contradicting the Court of Appeal on matters of law. Granted that judges and magistrates may be entitled to their quirks of interpretation based on conscience and personal conviction, there is still a need of some measure of coherence in sentencing. Where for some reason a magistrate feels the need to exercise his or her discretion to the extreme of leniency or otherwise a special effort must be made to communicate the exceptional nature of the case to the public. The likely punishment for the any given crime should be known and whenever that meted out seems outside the ordinary the public should be given some account why an exception has been made. The lack of monitoring or review also leaves the judiciary wide open to accusations of bias, personal bias: this judge is consistently severe, this other judge consistently lenient. Every judge is of equal authority and none can be ticked off by his peers. The only authority above a judge is Parliament itself which has the power to remove a judge in the event of proven incapacity or misbehaviour with the support of 2/3 of the House. Between absolute discretion and dismissal by parliament, no other device exists to respond to niggling persistent failures or deviation from the clear intent of the law. A strange judgment inflicting disproportionate punishment or granting an acquittal, particularly on appeal may provoke curiosity or alarm but no body exists to query an such instance of aberration. On the one hand our courts respond to a history of direct and massive political interference through the suspension of the Constitutional court, the transfer of judges to different courts and the award of special income to some judges as Reviewers of Notarial Archives if they did not make a nuisance of themselves by being obsessive about the independence of courts. On the other hand the recent conviction of a former Chief Justice for Bribery eliminates the patronising assumption that judges are super human and should not be subject to any form of review. The idea that once appointed judges are deemed competent and should not be interfered with seems like a relic from the days when the separation of powers between the executive, the legislative and the judicial was still in process of development. They should at least be subject to peer review, should seek coherence in sentencing and should not appear to be disregarding public opinion.
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European Elections special editions 01 June 2009 |
Managing editor Saviour Balzan | Tel. ++356 21382741 | Fax: ++356 21385075 | Email