The courts – how to screw human rights in ten gutless steps
Ihave started running out of expletives to describe human rights judgments by some members of the judiciary. I used to flatter myself I had a rather comfortable command of English vocabulary. Sadly, I realise that the word I resort to most frequently is not English at all. It is jaqq.
The mission statement of the constitution is article 1. Every facet of good governance depends on it. It proclaims: “Malta is a republic founded on the respect for the fundamental rights and freedoms of the individual.”
Without obsessive commitment to human rights, constitutional governance becomes an insolent, criminal sham.
The constitution has, naively, delegated the judiciary with the fundamental function of being its ultimate guardian. In poor language, it is the judiciary that has to keep political gorillas in check. The constitution expects from the courts to prove the powerful wrong, to expose them to sanctions and contempt.
Some courts do this, conscientiously and with heroic spurts of courage. The gutless, of whom there are plenty, suffer panic attacks when asked to perform their basic duties. Proclaim a formidable minister an abuser of human rights? Ma tarax. The lily-livered ones have worked out what they consider face-saving ways of betraying their duty – clutch on procedural trivia to avoid deciding the merits.
They will never determine whether the powerful have or have not breached the human rights of the vulnerable. They will, instead, decide, invoking some formalism they found convenient and attractive, that, jaħasra, they cannot touch the case on its merits. This has become the routine of judicial cowards. Pontius Pilate, hurry, where is the basin we can wash our hands in?
I have identified at least 10 Machiavelli ploys relied on by the spineless not to decide human rights breaches. In shorthand, directions for coraggio fuggiamo diversions: how to be abject but not neglecting to plaster band-aid all over your conscience. Cunning, the squalid Baldrick sort.
Here is a manual of ‘How-toscrew-human-rights in 10 Easy Steps’, copyright courtesy of some courts. Each measure deserves a treatise on its own but I have to respect word-count constraints.
The constitution mandates the courts to remedy breaches of human rights. That is the rule. Exceptionally, the judge may refuse to grant relief if the victim had other effective and accessible remedies but failed to exhaust them. Some judges have turned the strict exception on its head. It is now the rule, even when the alternative so-called remedies offer no effective redress to human rights breaches. To justify unheroic routes, they blame inapplicable Strasbourg case-law. Imma laqwa li ħlisna minn każ jaħraq.
Sometimes, human rights provisions give judges a certain leeway of discretion. But the basic rule is that discretion has always to be used to promote
the objects and reasons of the law. And the only reason of human rights law is to ensure their supremacy. You think so? Not some judges – they wallow in the discretion granted to them – not to promote human rights but to make sure they fail. Ħeqq, the constitution gives me a choice, doesn’t it? I used it, against human rights. They have turned grotesque abuse of that judicial discretion into a system.
The constitution requires that the alleged victims of human rights violations must show a ‘personal interest’ in promoting their action for remedies. No personal interest? No redress. To what absurd extremes have some judges stretched the requisite of personal interest to refuse human rights protection! In this area, Strasbourg case law is extremely relevant, so best ignore it. Next case, please.
Again, our constitution lists the very first duty of judges: the prevention of likely future violations of human rights. This is not some extraordinary function. It is their primary, routine, everyday duty. Yet, they consistently refuse to grant precautionary interim measures to prevent likely violations of human rights, on the pathetic pretext that courts can only issue interim measures exceptionally. They rely vehemently on inapplicable Strasbourg case law – which is wholly irrelevant and misleading, as the Strasbourg system, in this matter, consists of norms which are polar opposites to those that underlie our constitution.
The constitution expressly enumerates “principles fundamental to the governance of the country, and it shall be the aim of the State to apply these principles in making laws”. Have you, even once, seen these sacred constitutional principles quoted in any judgment? I haven’t. In fact, when human rights victims referred to them in litigation, a peevish judge buried them under a mountain of self-important ignorance. “Don’t waste my time. Those are only principles. They are not enforceable.” How silly of us not to appreciate that constitutional principles are just enjoyable cabaret. Not once, never, have the courts used them to hold the powerful to account.
Another bizarre aberration: once a non-constitutional court refuses to recognise a human rights case because, in its subjective opinion, the claim is “merely frivolous and vexatious”, that is the absolute end of the matter. That non-reviewable whim wipes out the human rights of the victim without any remedy, just because a court lacking human rights authority says so, not giving a single reason.
Some courts get rid of human rights claims embarrassing to the mighty by rejecting powers of attorney given to the claimant. Any abstruse formality will do, and these courts will rely on any paltry procedural waffle so long as it unprotects human rights victims.
Some human rights can be curtailed if the court deems it in the public interest that they should be. What a bonanza for human rights violators. The courts have found, for example, that depriving individuals of their prime private properties to turn them into party political clubs of the ruling overlords was – listen to it – in the public interest.
And it was the court itself, not the government, that decreed that judgments finding laws incompatible with the constitution are NOT null. That law is merely inapplicable to the party who filed the claim but the unconstitutional law is still perfectly valid and applicable to everyone else. Rejoice: ours is the only constitutional court in the whole democratic world to have thrown up such foetid vomit.
Some of our courts persevere in their determination never to let anyone challenge their statistically-confirmed reputation – that of being the most doddering human rights guardians in the whole of Europe.
“And, if you don’t shed tears, tell me what makes you weep?” (Dante).
“Our constitution lists the very first duty of judges: the prevention of likely future violations of human rights
Giovanni Bonello served as judge of the European Court of Human Rights for 12 years.