Statement on Independence of the Judiciary – 10/03/2023

Press Release: 10th March 2023.
GħSL unequivocally condemns any attempt to compromise or manipulate the judiciary’s independence. It is deeply concerning that the Prime Minister’s comments appear to undermine the autonomy of the judiciary by seeking to shift public sentiment against the Courts and particular members of the judiciary, knowing that members of the judiciary have no right of reply.

GħSL refers to plenary session 95 of the 6th of March 2023. The Prime Minister, after commenting on the impressive statistic of decided cases by a specific member of the judiciary, insinuated that the magistrate in the magisterial inquiry into the death of Jean Paul Sofia should emulate this statistic. In a video interview broadcasted on the Times of Malta on the 8th of March 2023, the Prime Minister appealed directly to the inquiring magistrate to conclude the procès-verbal without further delay. These comments were made in light of calls for the initiation of a public inquiry into the death of Jean Paul Sofia. GħSL takes this opportunity to remark the difference between a criminal and public inquiry. Whilst a criminal inquiry is aimed to preserve material traces of a possible offence, a public inquiry is aimed at identifying possible administrative failures, and are thus unrelated and do not impact or prejudice one another.

The executive government is in no position to dictate judicial proceedings. It is the judiciary which determines judicial proceedings, having regard to the quality of justice not the quantity. The Prime Minister’s comments attempt to prejudice the delicate and meticulous process of collection and preservation of evidence. Political convenience is no excuse to scapegoat and place undue pressure on the judiciary; the tenent of the separation of powers is greater than quick and cheap attempts to sway public attention.

It was not in Prime Minister’s remit to make such comments. The proper course of action for the Prime Minister to address shortcomings of members of the judiciary is to ask the Commis-sion on the Administration of Justice to initiate an investigation on any particular member of the judiciary as per article 101A of the Constitution. Public denouncement only serves to cloud judgement and prejudice the case at hand. Delays are addressed by efficient allocation of re-sources to all members and staff, thus the implication that the judiciary is at fault is improper and devious.

GħSL has observed, over the past weeks, a repeated tendency by the Prime Minister to cast doubt upon the autonomy of the judiciary. On the 15th of February 2023, GħSL formally re-quested the Commission for Administration of Justice, the Chief Justice and the Minister for Justice, as well as the Commissioner for Standards in Public Life to initiate investigations and disciplinary proceedings for the following instances:

On the 22nd of January 2023, the Prime Minister said at a political event that:

“Meta tara każ bħal dak ta’ nhar l-Erbgħa (referencing to the case of Ms.Kaya Pelin) iqajjem fik rabja, rabja għaliex dawn huma attitudni-jiet, azzjonijiet li ma jirrispettawx dak li jemmen fih pajjiżna, rajna ep-isodju li xxokjana, u għalhekk nistenna illi l-qrati tagħna, bla ma nik-kumenta, għax ma nistax għax kieku nikkumenta, fuq il-każ partikolari, nistenna li l-qrati tagħna jkunu sodi, nistenna li jkunu sodi, sodi f’kull fażi tal-proċess, kemm fl-ipproċessar tal-ħelsien mill-arrest, kemm fl-ipproccessar tal-ġbir tal-provi, kemm fl-għoti tal-eventwali sentenza, dak huwa li qed jistennew in-nies tagħna.”

The Prime Minister, although admitting that he is in a position whereby he cannot comment, went on to emphasise his expectation of the courts to exercise strictness and severity in matters pertaining to bail proceedings, collection of evidence and sentencing. The case in question may eventually be tried by a panel of jurors who are laymen without experience in the law and without the necessary training against biases. The jurors in this case have not yet been empanelled, and thus they are not protected from these comments.

In a video interview on the 23rd of January, the Prime Minister further stockpiled comments on the same case:

“Nistenna illi l-qrati tagħna jagħtu messaġġ ċar partikolarment bil-proċess tal-ħelsien mill-arrest, f’dal każ u f’kull każ ieħor, kif ukoll fl-eventwali sentenzi, illi min mhux kapaċi jgħix ġewwa soċjetà b’mod diċenti u min mhux kapaċi jirrispetta l-valuri bażiċi tal-poplu Malti u min irid jfixkel is-sens ta’ sigurtà f’pajjiżna, hemmhekk il-Qrati jridu jibgħatu messaġġ u li huwa messaġġ ċar ħafna.”

It is not up to the Prime Minister to impute culpability upon an individual who is still awaiting trial. It is up to an independent and impartial court to do so. These comments transgress the sacrosanct right of the presumption of innocence and prejudice the entire legal proceedings, as may be seen when assessing the. The Noel Arrigo case serves as an illustrative example in this regard, as the Constitutional Court deemed that the presumption of innocence of the accused was violated in a press conference conducted by the then Prime Minister.

It was also reported on the 29th of January, that the Prime Minister conversed with a member of the judiciary regarding another case pending consideration. The discussion, as reported in the news, and by the Prime Minister himself, revolved around the sentencing policies of the court, and the alleged practice of the Court of Criminal Appeal to reduce the sentences of the first instance. The Prime Minister admitted to this in a video interview, whereby he stated that:

“dil-ġimgħa kelli okkażjoni nitkellem ma’ Maġistrat, li qaltli vera, il-qafas ta’ liġijiet preżenti jippermettielna illi nistgħu nagħtu pieni baxxi jew pieni għoljin għar-reat partikolari, imma r-realtà turina illi meta nagħtu piena għolja allavolja l-liġi tippermettielna li nagħtu piena għolja, imbagħad jappellawlek, jmorrulek quddiem il-Qorti tal-Appell, u ċ-ċansijiet huma li l-Qorti tal-Appell tnaqqaslek il-piena għaliex hemm policies, jew hemm sentenzi passati illi jimmilitaw illi l-piena ma jkunx daqshekk għolja”

Article 26 of the Code of Ethics for Members of the Judiciary specifically prohibits magistrates from communicating in private with members of the Executive on any matter connected with their duties or functions. The Prime Minister’s communication with a member of the judiciary demonstrated a flagrant disregard for the fundamental principle of separation of powers and egregiously fell short of the ethical standard expected of their high office.

Attempts to compromise the judiciary’s independence must be unequivocally condemned. The separation of powers and the presumption of innocence are sacrosanct, and political convenience cannot justify interference in the delicate and meticulous process of justice. The executive is bound to uphold the autonomy of the judiciary and to protect the integrity of our legal system, not undermine it.