The independence and impartiality of non-judicial defenders of human rights in Malta : time we questioned it!

Abstract

According to Chief Justice Emeritus Giuseppe Mifsud Bonnici, as a fresh lawyer stepping inside the Law Courts “one comes to realise that all substantive rights are only effective in as much as adjectival or procedural rights make them so”. The right to a fair trial, being procedural in nature, secures the enjoyment of the substantive right. The notions of independence and impartiality are at the heart of any legal system and embedded in all major international human rights instruments to the extent that the requirement of independence and impartiality in the administration of justice constitutes a fundamental right in itself. The culmination of the rule of law finds ground in securing justice. However, despite the fact that nobody contests the premise that the independence and impartiality of the judiciary is one of the main characteristics of a democratic society, the inherent aspect of the separation of powers is still at stake with regard to many of the non-judicial defenders of human rights in Malta. Non-judicial human rights defenders play a leading role in human rights promotion. An examination of their legislation shows that they also provide alternative means to resolving disputes thus partaking in the holistic system of justice. Though redress is generally achieved through the actions of the courts and administrative tribunals, one must not overlook the role of the Parliamentary Ombudsman and the various other Commissioners scattered amongst our legislation. Despite being primary defenders in ensuring a safe ground for enforcing a human rights culture, alas their independence and impartiality remains questionable