I have followed with great interest the latest storm in a teacup whereby ADPD, Repubblika, the Chamber of Advocates, and possibly others who would have ridden on the same bandwagon by the time this article is published, have been vociferously up in arms because the Prime Minister spoke with a Magistrate – possibly over a cup of coffee or perhaps two pastizzi during a reception or some other light activity.

Nowhere was it stated that the Prime Minister gave instructions to the Magistrate how to decide cases pending before him/her in which the government was a party. Nor were we told that the Prime Minister had exerted all his bodybuilding might to somehow influence or corner the Magistrate. Nor were we told what supposedly were the matters connected with the Magistrate’s judicial duties. Nor do we know who the Magistrate was, that is, whether s/he is a sitting Magistrate or a retired Magistrate, or whether it was perhaps a fictional character after all to arouse interest in the Prime Minister’s theatrics. Nor do we know when this conversation took place, for all that I know, it could have happened when the Prime Minister was still a practising lawyer.

What we do know is that the Prime Minister in last Sunday’s homely to the faithful stated that he had a chat whereby a magistrate complained that tough sentences were reduced on appeal.

Were the Prime Minister to be guilty as charged, that is, of attempting, with mischievous intention, to derail the course of justice, the Prime Minister would not have been stupid enough to make such a public statement of such conversation and he would have surely kept it to himself. Of course, I am not trying to justify, belittle, or in any way condone the Prime Minister’s speech for the rule of law dictates that laws are there to be obeyed not violated, more so if the breach comes from a person in authority such as the Prime Minister or a Magistrate. It is one thing to park on a double yellow line; yet another to commit a wilful homicide. However, one has to recognize the veniality of this mountain out of a molehill and concentrate upon more fundamental issues to the governance of the state that ought to be emphasized and repeatedly re- and over- emphasized.

I think there are indeed by far more serious matters that the Prime Minister should be criticised for from a constitutional/legal/rule of law perspective that belittle this episode.

What is more fundamental than the right to life of innocent unborn children that the Prime Minister wants to deprive them of in his abortion law? What is more fundamental than when the Prime Minister violates, through his advice to the President, the fundamental law of Malta – the Constitution? Contrary to the Constitution of Malta – both during this current legislature and the previous one – the Prime Minister has, in contempt of Parliament, assigned ministerial responsibility to the Gozo minister for the Wild Birds Regulation Unit when, in terms of extant law, that responsibility has been assigned by Parliament to the environment minister.

Is it not more fundamental for the constitution to have an Ombudsman in office after a nearly two-year hiatus more so that last year there was agreement between government and opposition to appoint a suitable candidate yet the motion for his appointment still lingers on in the House of Representatives? What is more fundamental to the good governance of the state that more than a year has passed and the recommendations of the government appointed Board of Inquiry to investigate the assassination of Daphne Caruana Galizia have not been implemented and that there is no ray of light indicating that they will ever be? What is more fundamental to the governance of the state, that is costing Malta a lot, is the culture of impunity that pervades Maltese institutions and that the Police have turned a blind eye thereto? Have we forgotten the FATF grey listing? Have we not evidenced this week Malta being downgraded again by Transparency International? Are we not witnessing in Parliament another bill that will strike at the very heart of judicial independence in so far as the office of the Inquiring Magistrate is concerned? Are these – and many others – not fundamental issues that should have been objected to?

A venial sin is one thing; a mortal sin is another. The Prime Minister might have perpetrated a venial sin when, during an informal conversation with a Magistrate (whomever s/he might have been) had a word, or perhaps two, on the functioning or malfunctioning of the courts without even referring to any pending cases in which government might have had a stake. And we neither need a Magistrate, nor the Prime Minister for that matter, to tell us that there are situations where judgments are overturned without one understanding the reason/s therefor. We all know that whilst judges in the Civil Court, First Hall (Constitutional Competence) tend to decide cases more in favour of the citizen and human rights, the Constitutional Court tends to decide cases more in favour of the government and the legality of ordinary law.

So what is new about this? Have not the judgments of the Constitutional Court been declared ad nauseam by the European Court of Human Rights to have repeatedly breached human rights and fundamental freedoms? Where is the news value here? In the Prime Minister-Magistrate chat saga, for PBS Ltd., the news value would probably have been because it was said by the Prime Minister. But we all know how the state broadcaster has an untarnished reputation for missing the wood for the trees when it comes to determining what news value is all about.

Aristotle once wrote that justice is all about measure and proportion. The criticism that has been levelled against the Prime Minister in the instant case might be correct but is unjust because it is disproportionate. That is why I call it a storm in a teacup. What is more important – fundamental – to the governance of the country – is not what the Prime Minister disclosed that was already in the public realm – but the criticisms that are of a more essential, necessary, and fundamental nature that the three entities above mentioned have either side lined or ignored.

 

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta