Dr Marse-Ann Farrugia, the Chief Justice’s legal secretary, has written in another section of the printed media to chastise members of the public who write to newspapers to criticise magistrates. It is my considered opinion that some points have to be made in response to what she wrote.
1. “It is justice that must be done, and this may not necessarily coincide with popular perceptions,” wrote Dr Farrugia. She is only partially right.
All civilised societies wish to avoid the barbaric practice of lynching, and thus have created mechanisms whereby the perpetrators of wrongdoing are brought before the apposite State organ, which studies their behaviour scientifically and, if the existence of a criminal deed is established, metes out punishment scientifically. In the case of lynching, justice may or may not be done, but the whole process coincides with popular perceptions. In the case of State-sponsored criminal justice, there is a greater chance of justice being done, but still this has to coincide with popular perceptions. Justice cannot be done without it being seen to be done.
Criminal law forms part of public law, because it has a public function. Gone are the days when justice could be obtained by private means. The faida of Southern Italy and the vendetta of Corsica are examples of private justice resorted to by the masses in the past; the duel is an example of private justice resorted to by the privileged, the aristocracy (the word “privilege” comes from privi and lege, private law; it must be remembered that duelling between individuals from different social backgrounds was not permitted). The 20th century has seen the monopolisation of criminal justice in the hands of the State, transforming criminal justice from something private into something public. But this monopolisation has not wiped out the public/popular perception aspect of the administration of criminal justice. Criminal law is there to satisfy the need for justice felt by society at large. It is not the exclusive domain of lawyers.
This can be better understood in the light shed by the institute of prescription, a legal term meaning that crimes are extinguished by the passage of time. The raison d’etre behind prescription is that after a certain time the public hue and cry subsides and there is nothing to be gained from prosecuting the crime. The gain is obviously the satisfaction of society’s demands for justice – an innate human need.
2. It therefore follows that one cannot agree with Dr Farrugia’s stern reproach of members of the public who write in the papers to express their criticism of the Judiciary.
One must state that the judges indicted with charges of bribery have truly shocked the nation. It is therefore natural for the thinking members of the public to turn their attention to the only organ of the State that has so far seemed immune to criticism: the Judiciary. Politicians (ie, members of the Executive and the Legislative) have long been the target of the media; now the public has decided that the time has come to scrutinise the Judiciary as well.
This should not be discouraged, for it is a sign of the healthy condition of democracy in Malta. It is a democratically safeguarded right of the people freely and publicly to criticise public administration, including the third organ of the State, the Judiciary. Instead of chastising the public (“It is not the (...) magistrate who should be put to shame but whoever passes scurrilous comments on a magistrate based on a total ignorance of the law”), Dr Farrugia should be glad that there is now sufficient respect for human rights in this country for people to feel confident enough to express criticism under their own name without fearing repercussions. It is a great day for democracy whenever someone writes in the papers to criticise a magistrate, even if that someone is not a lawyer.
Knowledge is not a prere-quisite for the exercise of one’s right to freedom of expression in a democracy. If one were to use Dr Farrugia’s yardstick, people should shut up about the economy because they are not economists, about the environment because they are not biologists, about education because they are not teachers, about the sorry state of our roads because they are not civil engineers, about Malta’s membership of the EU because they are not diplomats or international relations specialists, about politics in general because they are not politologists or political scientists, and so on and so forth.
If a member of the public is not sophisticated enough to express a view on the workings of the court, he should be courteously corrected, not sternly reproached.
3. However, Dr Farrugia made a very important distinction between the members of the Judiciary: judges and magistrates.
Actually, judges are rarely criticised in the papers. His Lordship Vincent De Gaetano (Dr Farrugia’s boss), Judges J.D. Camilleri, Joseph Filletti and J Galea Debono (the first three making up the Constitutional Court and the fourth presiding over the Criminal Court) are very well spoken of, and letters of admiration have been appearing in the printed media on a regular basis.
It would seem that the general public is of the opinion that even the majority of magistrates are doing a fine job. Dr Lawrence Quintano has been publicly lauded recently for the highly professional way in which he conducted the case concerning a minor who had problems at school with her teachers. Dr Antonio Mizzi, Dr Micallef Trigona, Dr Giovanni Grixti and Dr Michael Mallia – and many other magistrates – are all very much admired for the fairness they show and the
conscientious approach they have towards their work.
Dr Abigail Lofaro, formerly a magistrate, has recently been elevated to the rank of judge – a sure sign of her good performance as a magistrate.
However, there seem to be a few – and one underlines that it is only a few – who are out of synch with popular expectations. There are magistrates who seem not to have the sensitivity necessary for the proper administration of criminal justice. How can anyone expect a lawyer who spent his formative years working in commercial law, for instance, to suddenly find the sensitivity to administer criminal law property upon being appointed magistrate? How can the law relating to economic transactions, for instance, instil that je ne sais quoi, that “being street wise” enough, to uncover wolves in sheep’s clothing, to punish the wolves and release the sheep, and to recognise those sheep who go about pretending to be wolves while still being sheep deep down?!
Commercial law, for instance, cannot prepare a lawyer to sit on the magistrate’s bench and administer criminal justice, for he will not be sensitive enough to the maxims of the philosophy of criminal law. Maxims such as in dubio pro reo, meaning that when there is doubt about the guilt of the accused, the balance should tilt in the accused’s favour, would be lost on such magistrates. But these maxims are important, for they reflect the accumulated wisdom of lawyers and society. In dubio pro reo, for instance, is motivated by the morally superior goal of preferring to free a guilty man rather than convict an innocent one. Legal maxims are very close to popular perceptions.
Actually, magistrates who do not possess the required sensitivity for criminal cases should not be assigned criminal cases. This is very self-evident. And if their intellectual fingers are so calloused as not to be able to feel the fine texture of the philosophy of criminal law, they should not have been appointed magistrates in the first place! If they think that by bowing to the prosecution they will be serving society well, they would be very myopic magistrates indeed, for they would be weakening the independence of the Judiciary in the eyes of the people.
Dr Farrugia wrote to defend magistrates. She did her job, and did it well. But she should keep her ear firmly to the ground, to hear if and when the stampede comes. For if the people lose their trust in the Judiciary, if the people start perceiving that certain lawyers are appointed as magistrates not for their intellectual prowess but because of what they (or their relatives, or in-laws) do or have done for the party in power, then it will be a very sad day for Malta, for turbulent times would be in the offing.
Emanuel Galea
ZEBBUG