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Watching justice come undone

Magistrate Charmaine Galea has just decreed her own recusal from the compilation of evidence in the Caruana Galizia murder trial.

“Magistrate Charmaine Galea followed where magistrate Donatella Frendo Dimech left off last week and said she would not hear the compilation of evidence against the three accused, on the grounds that Ms Caruana Galizia had mentioned her in blog posts concerning Labour Party appointees to the judiciary.” (Times of Malta)

A few off the cuff facts (for which I thank some colleagues who are more familiar with the ins and outs of the courts) are warranted at this stage. Malta’s current line-up on the Magistrate’s bench has a grand total of 22 Magistrates. The standard for recusal that has just been set by the combined abstentions of Magistrates Dontella Frendo Dimech and Charmaine Galea is quite low. Magistrate Frendo Dimech’s abstention stemmed mainly from a weak level of familiarity with the victim’s sister (they shared a schoolbench) while Magistrate Galea referred to direct criticism that she received from the victim upon her appointment:

Magistrate Galea has just read out a statement saying Daphne Caruana Galizia had written about her nomination to the bench and linked it to her closeness of the government of the day.” (still the Times Court report)

Now,  that link – the one related to Daphne’s criticism of Labour’s appointment of magistrates – has delivered a severe blow to the list of 22 magistrates. Decimation does not begin to describe it. In fact, writing on the 20th of November 2016, Daphne Caruana Galizia detailed the specifics of government appointments to the Magistrates’ bench:

“This government has made 14 appointments to the bench in three years, 10 of whom are connected directly to the Labour Party. The other four are Judge Giovanni Grixti (formerly a magistrate), Judge Edwin Grima (formerly a magistrate), Magistrate Donatella Frendo Dimech (formerly at the Attorney-General’s Office), and Magistrate Aaron Bugeja (formerly in private practice).” (Running Commentary, November 20th, 2016).

The rest of the blog post in question develops an argument that implies without any doubt the ‘political’ nature of Labour government appointees through the years. In this context, Magistrate Charmaine Galea’s abstention should not come as a surprise and is actually the more ‘justified’ of the two until now seeing how Magistrate Frendo Dimech was specifically singled out by Daphne (together with another three magistrates) as not having been a political appointee. What does stand out is that by the same reckoning as applied by Magistrate Galea, 9* other appointees to the bench (10 out of the list of 22) qualify for the same reasoning, the same abstention.

We may argue at length whether or not the abstentions are sufficiently justified but that is not the point that I want to make here. The point that comes out clearly from the current debacle is that when Daphne Caruana Galizia, like many others, was pointing out the political nature of appointments to the judiciary back in 2016 (and even before that) she was actually highlighting a deficiency in the system: one that makes it weak and vulnerable. This is the tangible effect of the breaking down of the rule of law. Justice is not being seen to be done, it is being undone bit by bit.

The independence of the judiciary is a fundamental building block of a system based on the rule of law. It is a fundamental building block for any liberal democratic society. When the judiciary is treated as yet another domain wherein ‘jobs for the boys (and girls)’ are to be found, it becomes yet another dagger in the back of the proper administration of justice and consequently of the proper running of the state. The merry-go-round of recusals will necessarily go on if the roster by lot will continue to throw up names who feature on that November 20th post. It is inevitable. It is a vicious circle.

The blame is not to fall on the journalist and opinionists who pointed out the deficiencies and bad-will in the nominations. It is to fall on a government that proceeded to turn nominations to the bench into a farce. It is a government that will sit on a case of impeachment of a judge until he retires out of the grasp of justice. It is a government that will wait for the exact amount of years required by the constitution to pass for the appointment of a young, green, lawyer to the post of magistrate because rule by law trumps rule of law any day.

The not so impeached judge happened to be the father of a labour candidate, the young green lawyer happened to be the daughter of the ex-labour deputy leader and current speaker of the house. One other nominee to the bench – Ingrid Zerafa Young – withdrew her nomination after it transpired that her appointment could have breached the Constitution since she was a member of the Employment Commission. It was Dr Zerafa Young, not the government,  who withdrew her nomination.

As you follow the merry-go-round of recusals do not laugh, do not find it funny and most of all do not blame the magistrates in question. Instead remember that this is a direct consequence of the breakdown of the rule of law in this country.

We all know where the blame for that falls squarely.


*This post has been edited because the previous version wrongly implied that all the appointees mentioned in the Running Commentary’s posts were magistrates. 4 of those were in fact judges and therefore should not be considered in this particular case.

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