Carpet-bombing the judiciary is wrong
Irefer to Judge Giovanni Bonello’s article (March 10) entitled ‘The court – how to screw human rights in 10 gutless steps’. agree with my friend’s statement that “the constitution has… delegated the judiciary with the fundamental function of being its ultimate guardian”. This requires members of the judiciary to decide on matters before them with independence, impartiality and respect for the law, no matter who the parties before them may be.
The power, wealth or popularity of the parties, whether as applicants or respondents, should be of no concern to the judge, particularly in matters of constitutional interpretation and human rights.
While judgments are rightly subject to comment and criticism, judges need, apart from the necessary resources, to be able to work in an atmosphere of objectivity. They should not be subject to criticism as a class and be collectively subject to invective of the type, if not worse, that British tabloids afford to judgments of the European courts with which they disagree.
The criticism and comments which these courts find relevant is that to be found in peer-reviewed articles in journals and other reviews by British and other scholars who follow, analyse, comment and give a fair appraisal of, and are a valid contribution to, the jurisprudence of the EHCR and the CJEU.
Applying the law is not a simple arithmetical exercise. It is an art based on a deep and wide scientific knowledge of the law, tempered by the judges’ cultural and other background. Unsurprisingly, judges are not always in agreement; that is why the law often provides for appeals. This is the reason why judgments in courts composed of more than one judge do not require unanimity but are decided by a majority vote of the members.
Some courts provide for the possibility of majority and dissenting judg ments or opinions – others emanate one single judgment where the view of the majority is tempered by the view of the minority, resulting in a more mature and balanced decision.
Judges are human and are neither perfect nor infallible. In my 26 years at the Office of the Attorney General and my 14 plus years as a judge at the Court of Justice of the EU, I have come across a number of judgments with which I disagreed, in some cases, drastically.
Some, I would say, angered me but I still do not believe that a majority of judges are “gutless” and “lily-livered” seeking “Machiavellian” ways to avoid doing their duty.
While I still disagree, or am not in complete agreement, with some judg ments, I still believe that many judges do their work conscientiously and with all the dedication and courage that their office requires. The judgments that, on analysis, may indicate otherwise are the exception.
While a mature analysis and sober criticism of judgments are beneficial and are conducive to the formation of better-prepared and deeper-studied judgments, a carpet-bombing of the judiciary, generally, with invective, insult and attribution of wrong motives, without reference to any particular judgment or analysis of the same, will only cause those who do their utmost to give fair and honest judgments according to law to be equated to those who don’t.
It will also destroy the moral authority of all judgments, irrespective of whether they are good or bad.
Of course, they will not infallibility always get it right but I am sure they will appreciate a sober and mature appraisal of their work, telling them where they got it wrong.
Members of academia, now more and more full-time academics, sufficiency removed from being personally active in court litigation, are perhaps wellsuited to provide this useful service.
“Judges are human and are neither perfect nor infallible
Anthony Borg Barthet was attorney general of Malta between 1989 and 2004 and a judge at the European Court of Justice between 2004 and 2018.