Public opinion would protect the judiciary from executive and partisan media overreach. What has been happening over the past year suggests otherwise.
We've seen Labour exponents and hardliners publicly denigrating and assassinating Magistrate Gabriella Vella's character following her conclusions in the Vitals Global Healthcare hospitals concession magisterial inquiry.
On more than one occasion, we've seen former PN minister Jason Azzopardi directly attacking and making serious allegations against individual members of the judiciary.
We've seen a fierce battle that raged in the media between former Judge Giovanni Bonello, taking it vehemently up against the judiciary for failing to protect the ordinary citizen from the corrupt executive might, and lawyers Edward Zammit Lewis and Ramona Attard in defence of our judges and magistrates.
While the public may disapprove of curbing the courts in the abstract, in practice, sections of the public have often supported the Labour government's attacks against the judiciary. In many democracies where political leaders have challenged the courts, public opinion is rarely a powerful guardrail protecting the judiciary against an executive power grab. Instead, a much more potent safeguard for the courts is societal mobilisation.
Two key dynamics explain why public opinion is usually insufficient protection for the courts. The first is that even when voters value democratic principles like checks and balances, they usually care more about concrete policy issues, such as immigration, crime, or the economy. Most citizens are policy voters first and democracy voters second.
We've seen the Labour media leverage popular policies to turn public opinion against the courts, often following a common strategy, what I call "court-baiting", that is, to undermine public support for the judiciary. Labour media that too often recalls policies that are popular but very likely illegal, and when courts then rule against the executive, it uses the unpopularity of the ruling to condemn the judiciary for obstructing the "will of the people".
While the rules governing the judiciary are often complex and arcane, changing them can have dramatic effects on the independence of the courts and their ability to hold other branches of government accountable. Reforms might be warranted where judges are self-dealing or out of touch with public preferences. Too often, though, rule changes are nothing more than attacks by the executive on the independence of the courts. Attacks on the judiciary often occur when checks on the executive have already been compromised, allowing once-unthinkable assaults on the courts.
The government has resorted to a wide range of tools available for assaulting and undermining the courts. It has changed or stripped their judicial review authority and limited who, when and how one can initiate magisterial inquiries.
An insidious feature of judicial backsliding is that it is undertaken incrementally and can be hard to monitor. Moreover, attacks on our courts have typically been done through seemingly legal means, for example, by the passage of legislation or constitutional amendments that the public may initially perceive as legitimate but are often highly technical and packaged in ways that make their ultimate political purposes opaque.
We can recall how ministers have occasionally acted improperly by questioning the legitimacy of judgments when they do not get their own way, creating a public perception that certain court decisions favourable to the government may have been a response to political pressure.
On the other hand, the government has often misrepresented judicial decisions, questioned judges and threatened to continue reforming the judiciary.
The judiciary's independence has been under attack from ministers and in the media, with their questions about the impartiality and propriety of judges risking undermining public confidence in the law itself.
It's time to stop our judiciary from facing unfair and often venomous criticism from both sides of the political aisle, leading to a dive in public confidence in the nation's court system. Unfair vilification of judges and magistrates is undermining our justice system.
Judges and magistrates are prohibited from commenting on cases pending before them, so they cannot defend themselves. But all the above attacks were widely reported by traditional and social media, ensuring the accusations would be heard far and wide.
If, as too frequently happens, inaccurate, unfair, and unjustified attacks against our judiciary are left unchallenged, public perception of the integrity and impartiality of the targeted judges and the judiciary as a whole is undermined, and confidence in the judicial system diminishes.
If judges and magistrates can't speak for themselves, who should speak in their defence and in defence of the judicial system?
It's a frightening situation if unjust criticisms of judges and courts are met with silence.
If the criticism represents a fair opinion or comment, no response is appropriate. But when criticism is materially inaccurate or misrepresents the legal system or a judge, or when criticism seriously and negatively impacts the community and the administration of justice, a response is needed.
Ultimately, the steady drumbeat of unjustified attacks against the judiciary and individual judges threatens the safety of judges and diminishes faith in judges and courts. Responses to those unfair attacks, sadly, are not keeping up.
We have to rebuild the utmost respect for the judiciary and their freedom to make decisions without political interference or any type of unfair attacks or pressure originating from wherever and whoever.
The case for a safeguarded and impartial judiciary is of critical importance to protect our fundamental values of democracy, rights and the rule of law from erosion in the future.
Dr Mark Said is a lawyer