As justice awaits its course in the Caruana Galizia murder case, a very dangerous pattern is developing. Surprisingly, the investigating police, together with the help of several experts, have managed to compile sufficient evidence just a few weeks after the murder which shook a nation took place. This breakthrough must be rightfully acknowledged and the Maltese police force deserve a fair share of the praise. However, the disregard and irresponsibility of specific persons such as advocates as well as members of the judiciary may jeopardise the sterling work done by the enforcement authorities. Our procedural law provides for a 30 day period from when the accused appears in court for the prosecutors to present compiled evidence. With this charade, we could be giving the ‘walk-free’ card to persons who could ultimately be the perpetrators, and better still lead the authorities to the big fish who ordered such a barbarous attack on our national identity and freedoms.
The aim of a recusal is to sustain the legal maxim of ‘justice must not only be done, but be seen to be done’. It defeats the purpose however, if requesting recusals is used as a scapegoat to circumvent procedural laws or worse still, destabilise the judiciary by planting unnecessary doubts in the integrity and rectitude of the members of the bench. This is precisely what is manipulating the court to declare the respective recusal of the presiding magistrate for the third time in a row.
It is extremely plausible, that the vociferous literary style that Caruana Galizia employed in her writings obtruded many negative sentiments in those who she chose to write about. She did not limit her targets and these many a time involved members of the judiciary. How can those members of the judiciary that she targeted be independent and impartial when adjudicating the trial surrounding her murder? However, this is still not an excuse in a country as small as Malta, to expect magistrate after magistrate to recuse themselves because of nonsensical excuses and claimed ties such as the one were the magistrate held she could not decide the case because she attended school with the sister of the deceased.
On an island of circa half a million people, and a tight-knit community, the likelihood of having a member of the judiciary with no tie whatsoever with the persons appearing in front of them are few and far between. Broadening this legal principle to such an extent which disregards other principles of law such as proportionality and necessity in adjudicating matters is not justifiable. Although binding precedent is not inherent to our local legal system, these situations are creating a perilous situation, where we deem it acceptable for those awaiting the course of justice to take place to question the appropriateness of those adjudicating, for every acute issue.
Our members of the judiciary have taken an oath to the constitution and most importantly the people they serve, to be honest, integral, impartial, independent, serious and most importantly fair by treating each and every person equally according to the stipulated law. This must not be doubted, and we must strengthen our absolute confidence in the bench, to avoid a situation where every Tom, Dick & Harry, declares their distrust, and prolongs the process which will inevitably lead to a grave miscarriage of justice and most noticeably the proper functioning of a judicial system. Can we really afford a situation where persons can constantly and without any reasonable basis question the adjudicator they have been assigned? Can we afford a situation where it’s more important to prove that the adjudicator will be whiter than white itself, rather than ensuring that those who have possibly breached the law, do not get off scot-free? Surely not. It may not be easy for a magistrate, who are themselves still humans with family, emotions and troubles, to associate themselves with such a highly sensitive case. Nevertheless this ‘cat and mouse’ game is simply reinforcing fear and abdication instead of support and confidence in the work of our judiciary to strive for the truth.
For the benefit of the smooth-running of our systems and the guarantee of a truly impartial and independent court which decides on the merits of the case and not any past or present external factor, the Commission for the Administration of Justice, which is an essential tool protected in the Constitution (Article 101A) must intervene ‘to draw the attention of any Judge or Magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of such court, and to draw the attention of any judge or magistrate to any conduct which could affect the trust conferred by their appointment or to any failure on his part to abide by any code or codes of ethics relating to him’. It is therefore their duty to ensure that this does not in any take its toll on the structure and process we know today, and most importantly to restore justice. If such criminal masterminds are allowed to tamper with the operatives of the system, we would be doing nothing short of encouraging a considerably precarious circumstance spiralling out of control, in one of the most essential pillars of our democracy, eliminating all possibilities of fair redress.
Nick Debono – A highly opinionated law student enjoying the occasional debate/heated discussion on anything to do with politics, culture, policy and football. Loves the typical Maltese lifestyle. Tries to pass the time by sharing my views (by writing articles/blogs such as these), coaching football, socializing and traveling.