Greatly respected Judge Giovanni Bonello believes it is high time for a review of parliamentary immunity in Malta which, according to him, has served its historical purpose. He suggests that such immunity should only be granted in cases where the national interest clearly overrides individual rights.
Judge Bonello, who distinguished himself during his time as a member of the European Court of Human Rights in Strasbourg, was contacted by this newspaper to share his views on this subject which is a frequent source of controversy. MPs are notoriously faced with accusations of abusing their immunity when making certain remarks involving third parties, but then refrain from repeating them outside parliament for fear of libel.
Judge Bonello believes that parliamentary immunity should be carefully reviewed and pruned, even in the moderate form in which it exists in Malta. “The exigencies of good governance can still be respected if victims of slander, abuse and defamation by MPs are given the right to request an independent and impartial court to establish the truth of allegations made in Parliament under the cover of immunity. The only exceptions I would concede would be very narrowly defined instances in which the national interest clearly overrides individual rights” concluded Judge Bonello.
Of particular interest to this subject is the sentence handed down by the European Court in Strasbourg in the case of Kart v Turkey in 2009 in which Judge Bonello gave a dissenting opinion. This involved a Turkish MP who had requested to have his parliamentary immunity removed in order to be able to defend himself in court from allegations of insulting a lawyer and a public officer. In its sentence the European Court did not uphold his request. Some of the arguments put forward in dissenting opinion which is being reproduced are also highly relevant to the local scenario.
MPs do not feel safe in spite Parliamentary immunity – PN Whip, David Agius
On the other hand PN Whip David Agius, who has been a Member of Parliament since 2003, believes that this issue is far more complex. In his comments Mr Agius expressed the view that the underlying issue is that of personal security. According to him, right now Maltese MPs do not feel totally safe to express themselves as freely as they would like, even though they have parliamentary immunity. Mr Agius elaborated further by saying that this could be due to the fact that MPs have no physical protection at all outside parliament, and thus fear for themselves or even their family in case they would pronounce themselves on an issue that might provoke third parties who feel threatened.
Regarding those cases in which MPs abuse their immunity, the PN Whip said that in such cases MPs should be challenged to repeat these claims outside Parliament. “It is obvious that whenever an MP does not take this challenge, his credibility will suffer” said Mr Agius. On the other hand, he lambasted newspapers who insist on publishing letters or stories from an anonymous source. “Such a practice is unfair, especially when family members who have nothing to do at all with the issue in question are unnecessarily targeted, causing tension and suffering” he remarked. He argued that the option of suing the newspaper for damages is not really worthwhile, as it usually takes years for the court to hand down a judgement.
The PN Whip concluded that parliamentary immunity can be removed after all, as long as adequate protection is given to MPs whose duty is also to serve as whistleblowers.
This newspaper also asked Labour Whip Joe Mizzi for his views on the matter but no reply had been forthcoming as of yesterday.
European Court of
Human Rights case
Kart v. Turkey of 2009
The dissenting opinion of Judge Bonello joined by Judges Zupanic and Gyulumyan on the sentence handed down by the European Court of Human Rights in Strasbourg in the case Kart v. Turkey of 2009.
The applicant, an elected opposition member of the Grand National Assembly of Turkey, was formally charged in 2002 with insulting a lawyer and a public officer. He requested that his parliamentary immunity be lifted in order to stand trial, but both the Joint Committee of the National Assembly and the Plenary Assembly discarded his requests and in substance stayed the criminal proceedings against the applicant until the dissolution of the then current Parliament. In 2007 the applicant was re-elected and this had the effect of stopping the continuation of criminal proceedings at least till 2011. Should the applicant then be re-elected, the criminal charges against him could not be terminated before 2015 – some fifteen years after he was first criminally charged.
I believe this judgment to be the very first in which a court of human rights has inferred that a person cannot claim the concurrent enjoyment of two fundamental human rights. I hope it is also the last. The majority have ruled that it is not in the general interest to allow an MP to waive his immunity voluntarily to enable him to stand criminal trial. I disagree radically with this conclusion. Unlike the majority, I voted for finding a violation of Article 6, in as much as I perceive far, but far more pressing social necessities in not obstructing the course of justice, in authorising an accused person to exercise his fundamental right of access to a court and to make use of his fundamental right to be tried within a reasonable time.
My dissent relies on what I consider two self-evident reflections: firstly, that there exist no general interest considerations sufficiently compelling to deprive the applicant of his fundamental right of access to a court. Secondly, that the Court should have re-qualified the complaint as a denial of a fair hearing within a reasonable time, in view of the fact that those modest proceedings against the applicant for insult will last at least ten years and possibly much longer.
Article 6 − Right to a court v. general interest
The ‘general interest’ considerations in favour of sustaining parliamentary immunity – even when the accused himself insists on renouncing it – in practice and in the year 2009 leave me tremendously unthrilled. Parliamentary immunity was born centuries ago with the laudable intent of shielding parliamentarians from the tyranny of the powerful; it has, over the years, more often than not morphed into the tyranny of some parliamentarians over those less powerful. This privilege encourages more parliamentarians to be strong with the weak than it shields against being weak with the strong.
In its proportionality exercise, the Court had to balance out the right of any person eager to be tried when accused of criminal offences, against an ancient institute whose actual advantages appear far more theoretical than real, but whose actual abuse seems far more real than theoretical. The Court threw its weight in favour of Parliament being the exclusive arbiter of when, and if, immunity should be lifted. The Court backed the Turkish Grand National Assembly, which has unfettered discretion whether to waive the privilege without giving reasons why, whether not to waive the privilege, again without giving reasons why not, or whether to take the day off – the constant being always: give no reasons. Between safeguarding this unprincipled principle and safeguarding fundamental human rights, the Court has found this kermesse of arbitrariness worthy of a higher level of protection – not the Court’s sharpest contribution to the rule of law, and rather unimpressive if legal certainty in anywhere on your agenda.
Again, in the proportionality exercise, the Court failed to spare a thought for the rights of the two victims of the applicant MP’s alleged insults. The frustration of the criminal proceedings against the applicant not only disregarded his own fundamental rights of access to a court and to be tried within a reasonable time, but also thwarted any expectations his alleged victims may have had of seeing some justice done. They too can wait till the years 2011 or 2015, praying fervently that the applicant is not re-elected as otherwise their expectations of justice somehow re-awaking will be relegated to 2015. Is there a social need so pressing as to deny the accused the right to vindicate his reputation, and his accusers the right to vindicate theirs? I have searched for it anxiously, but have so far failed to detect any trace of it. It is the Court’s best kept secret.
What the Court seems to have factored into the proportionality exercise, and with some reverential awe, is the fact that the Grand National Assembly refuses to lift the immunity of MPs from both sides of the house with criminal charges against them. An even-handedness that inhibits the prosecution and the possible punishment of all suspected delinquents, whatever their political colour. The Court finds that laudable, and I respect its appreciation. But this is a non-discrimination that earns next to no points from me. I would not applaud discrimination between good and good, but can find minimal virtue in non-discrimination between bad and bad. We now have the good, the bad, and the Honourable.
I believe that the Court had the option to analyse the existence of a pressing social need from the other end of the telescope: had the applicant’s immunity been lifted and the private proceedings for insult gone through the criminal courts, would parliamentary democracy in Turkey have received a blow so fatal that it could never have hoped to recover? I have some problems with believing that Mr Kart’s petty trial on charges of insult would have challenged the French Revolution for the title of political tsunami of the millennium.
Article 6 – Right to be tried within a reasonable time
This case was, in my view, improperly classified by the applicant as one calling in question the denial of his right of access to a court. The Court could, and should, have re-classified of its own motion the core issue of this case as that of denial of a fair trial within a reasonable time, rather than that of denial of access to a court. The Court has repeatedly (over 50 times) when the occasion arose, and in the interest of the protection of human rights, re-classified the substance of the issue to be determined. Leaving the complaint in the domain of access to a court – an Article 6 right that is not absolute – compelled the Court to indulge in balancing the right of the applicant against the general interest – an exercise which would have been avoidable had the case been examined under its ‘undue delay’ profile.
Article 6 establishes that, in the determination of any criminal charge, everyone is entitled to a fair hearing within a reasonable time. It is the fundamental human right of every person charged with any criminal offence to have his trial held and concluded within a reasonable time. In the applicant’s case, though he stands formally accused of criminal offences, his trial cannot be concluded before the lapse of at least ten years from the service of the criminal charges on him – possibly 15 years and even more.
For this Court, a trial within a reasonable time from charges to final judgment has, so far, constituted a salient element in the cluster of fair trial rights. The guarantee is intended to protect any party to court proceedings against excessive procedural delays, and more specifically, in criminal matters, to avoid that a person charged should remain too long in a state of uncertainty about his or her fate. The Court has repeatedly found violations of this right in trials that dragged on for periods far shorter than ten years. And yet the applicant’s trial, lasting at least ten years and possibly much longer, effortlessly passed the Strasbourg test by default.
General interests, however prominent, should never be allowed to override the core Article 6 rights, such as being tried by an independent and impartial tribunal or receiving a fair hearing within a reasonable time. I dread to believe that the time will ever come when the Court will uphold the trial of an accused by a partial tribunal in the pocket of the authorities on general interest grounds. And I would be very wary of a court that accepted an unfair trial held at the more delightful fringe of eternity because some social need so required. This would be the beginning of the slippery slope towards ensuring that Article 6 really becomes sterile and meaningless.
Conflict of fundamental rights
The reference to the applicant’s ‘implicit’ waiver to his core Article 6 rights contained in paragraph 106 verges on the cynical. The Court has found that in exercising his fundamental right to stand for Parliament, the applicant has waived his fundamental right to stand trial, and that, within a reasonable time.
This, I believe, is the very first time in its long history that the Court has, in substance, affirmed that to enjoy one fundamental right a person has to sacrifice the enjoyment of another. The right to be elected to parliament is a fundamental right (enshrined in Article 3 of the First Protocol). So is the right to be tried within a reasonable time. The Court has often had to limit the enjoyment of the human rights of one person when these come into collision with those of others. Never, in my experience, has an applicant been told implicitly that the Court applies the Convention on an aut aut basis. The Court has given Mr Kart a chance of trading in one birthright if he really desires to exercise the other. Wanting to enjoy one fundamental human right is tolerable; expecting to enjoy two is downright greedy.