The case of Demicoli v. Malta was the first case decided by the European Court of Human Rights in which Malta was the respondent state. Malta lost that case miserably. In essence, the whole argument centred upon whether the applicant, Mr. Demicoli, a newspaper editor, was granted a fair trial by the House of Representatives in a breach of privilege complaint. The Strasbourg court concluded that Malta was at fault. Indeed, the House had acted as Complainant, Prosecutor, Witness, Judge and Jury against Mr Demicoli. This, undoubtedly, led to the lack of impartiality of the House and, in the eyes of the Court, all this amounted to a breach of the right to a fair trial.

The current uproar against the Commissioner of Police and the Attorney General smacks of the same irregularities. Certain civil society organisations have taken it upon themselves to charge, prosecute, give evidence against, convict and punish, through dismissal from office, both the Commissioner of Police and the Attorney General.

No due process of law is afforded to these officers of the state before the people’s courts; no right to a fair hearing is enjoyed by the two public officers in question; there is no need to have recourse to resorting to the constitutionally and legally established procedure to discipline, through removal from office, for these two civil servants. Everything is done extra-judicially, extra-parliamentary and extra-institutionally.

For these two persons the rule of law does not extend to them. There is no due process of law, no right to a fair trial. They enjoy no rights.

Once the people’s courts have charged and condemned the accused public officers, the Prime Minister, in full disregard of the Constitution, fundamental human rights and the laws of Malta, must dismiss them. This is basically what these civil society organisations are demanding. They are not requesting an independent inquiry to investigate the proper conduct or otherwise of these two public officers because these civil society organisations – in breach of the right to a fair hearing – have already concluded that the two civil servants are guilty as charged.

There are no redeeming factors to be taken into consideration as to punishment such as their past good conduct in office, their loyalty to the state, the length of service contributed to law enforcement, the commendations received from their superiors during their career, their adherence to secrecy and confidential provisions of Maltese Law, etc. No, nothing of this sort.

For the civil society organisations concerned, there is no law, no sentencing policy (other than dismissal) and no right to defend oneself. The two state officials must be dismissed even if the Constitution and ordinary law establish a procedure how these two officers should be removed from office, if guilty of misconduct.

The rule of law demands not a repetition of the Demicoli case where fundamental human rights are breached, where no written charge is handed over to the accused persons, where the accused persons are not afforded a right to defend themselves before an independent and impartial court or tribunal established by law, where justice, not retribution, is the guiding principle. Even hardened criminals enjoy human rights in our society.

The civil society organisations are, themselves, advocating a callous breach of the rule of law. For in a democratic society which respects the rule of law, civil society organisations should be advocating a strict adherence to the tenets of the law not its inobservance. Civil society organisations should be assembling and expressing themselves to put pressure on the public administration and MPs to act in the proper and sole way established by law. That is what the rule of law dictates. To act otherwise is to disrepute the law and fall foul of the rule of law.

 

Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta