Reductio ad absurdum
Not everything that is legal is acceptable, and magistrates must have higher standards of behaviour than the norm, certainly not lower ones. We don't want to see our magistrates dressing and behaving like this.
Last Tuesday in court, Magistrate Consuelo Scerri Herrera, under cross-examination by my lawyer, insisted that she has never done anything illegal.
She stressed, repeatedly, the legality of all her actions in public and private. It was as though she had never heard of the existence of a code of ethics for the judiciary which is, when it comes down to it, what the fuss is all about.
I was nonplussed. As a magistrate, she deals in the interpretation of the letter of the law. But as a magistrate, she should be more highly attuned than others to the fact that not all that is legal is acceptable or even right.
To give an example that is easy and straightforward to understand, adultery has been legal for many years now, but this doesn’t mean that it’s all right if we rush out to cheat on our spouses because the law allows us to do so. And if we do so and then face the music with our spouse, it’s not going to help our cause if we argue back “But I did nothing illegal.”
We have a pact with our spouse that goes beyond the law, and magistrates have a pact with the public that goes beyond the law too.
Just before her cross-examination began, Magistrate Scerri Herrera put it down on record in court – a fact missed by the journalists who were there to report on the case – that she is not asking for my prosecution on the items that most transfixed the general public when I wrote about them last January and February, namely her serial adultery, her lying and cheating, her clandestine sexual liaisons with police officers, her sitting in judgement over one Joseph Musumeci (and finding him not guilty) while she was conducting a secret affair with his brother, and much else in this vein.
This was a piece of strategy to avoid being cross-examined on these delicate matters.
However, it begged the question as to the strange priorities of a magistrate who considers herself defamed by the suggestion that she is a friend of Super One journalist Charlon Gouder, while feeling she needn’t take action about the accusation that she targeted a man who had only recently become a father, and in so doing destroyed an incipient family.
Through her selective highlighting of what she feels is defamatory in my many descriptions, last winter, of her character and behaviour, Magistrate Scerri Herrera has reduced her own case to the level of farce.
That she is there in the witness stand at all, speaking about these matters, is an embarrassment to her position.
The fact appears to escape her that it is her own behaviour which has exposed her to such talk and accusations. One cannot imagine similar things being said about the more correct magistrates. There are simply no grounds for any such suggestions.
I sat there in the dock last Tuesday wondering what sort of country I am living in where a magistrate, cunningly disguised as an ordinary citizen while flexing her full muscle as a magistrate, can demand of the police that they prosecute a journalist for describing her as less than physically attractive, which turns out to be one of the items on my ‘charge-sheet’.
It would be amusing were it not so utterly pathetic.
I sat there and thought about how my husband and I found three police officers waiting at our gate when we returned home at 1.30am on a cold February night, and how I was served with an official summons to present myself for interrogation at Police Headquarters seven-and-a-half hours later, at 9am, failing which I would be arrested and forcibly taken by police officers to the interrogation room.
I remembered how, despite turning up voluntarily at the appointed hour, I was held under arrest, physically prevented from leaving the room, still more the building, for more than four hours while I was interrogated on what I had written about Magistrate Scerri Herrera.
Meanwhile, unknown to me at the time, another police officer had got hold of my internet service provider and demanded to know certain details about the registration of my website, telling him that I would be held under arrest until those details were released.
Because I knew for a fact that Magistrate Scerri Herrera had had sexual liaisons with police officers, and that these had and still have a vested interest in ensuring that the facts are concealed, I was unable to trust certain elements in the police force who I knew would be working against the interest of justice, behind the scenes, to protect themselves and Magistrate Scerri Herrera.
Ironically, while Magistrate Scerri Herrera uses the police to prosecute me and tries to get protection orders against me, the police themselves have felt the need to place protection outside our home since the day she demanded my prosecution. I did not ask for this police protection. I was told, in no uncertain terms, to accept it, and there have been police outside our house every night since February.
I have been writing for 20 years and never have the police felt the need to give me protection, except for a brief period during the general election in 2008. I didn’t even have protection when I was a key witness in the high-profile trial of a dangerous cocaine trafficker who was jailed for 15 years. But I have police protection because I wrote about the Herrera siblings.
That alone tells me a great deal.
And now, in court last Tuesday, I discovered that this appalling situation, more appropriate to somewhere like Turkey and certainly not to an EU member state, has come about because Magistrate Scerri Herrera took exception to descriptions of unwise partying and a demand for mobile lavatories from the council of which her paramour is mayor.
Or so we are expected to believe.
You could think it ridiculous, but really it is tragic that we have come to this, that systems put in place to ensure that justice is done and seen to be done are instead used to parody it.
We now find ourselves in court discussing whether the magistrate looks, or does not look, like the back of a bus – one of the comments she found defamatory. One struggles against the temptation to take to court a postcard depicting the back of a bus, there to hold it up for scrutiny and a general opinion.
To such absurdity have we descended, thanks to Magistrate Scerri Herrera’s picking and choosing as to what I am to be prosecuted for, when the crucial issue here is the perceived independence of the judiciary and what this particular magistrate might be doing to prejudice it.
A month ago, the outgoing chief justice gave an interview to The Sunday Times in which he said:
“A judge or a magistrate acts in public but is not a public figure like a government minister. It is for this reason that the behaviour of a member of the judiciary must be such so as not to give rise to gossip. Gossip itself is harmful. Members of the judiciary should at all times keep a low profile in public. (……) If judges and magistrates do not keep a low profile and do things with the specific intent of showing off, they are putting their private life on the clothes-line. It is important to know the limits of what one can do and what one cannot do.”
Chief Justice Vincent Degaetano was then asked by his interviewer whether this applied to their private life, too, and he replied:
“Even in their private life off the bench. A magistrate or judge can, in his private life, gamble at a casino. But wouldn’t this harm his image and possibly that of his colleagues? Of course it would, because it is not the kind of behaviour you would expect from a member of the judiciary. It is not easy to say where the line of demarcation is. Very often, you would know when the line has been overstepped when it has been grossly overstepped. Although members of the judiciary are entitled to a private life, they must behave in a manner so as not to give way to gossip or possibly scandal. Members of the judiciary need to keep in mind that not everything that is legal is necessarily appropriate.”
The theme was taken up by the incoming chief justice, Silvio Camilleri, who dedicated a good part of his speech to this matter at the opening of the forensic year the day before yesterday.
The administration of justice does not depend only on courtroom proceedings but also on how judges and magistrates behave in society, he said, stressing that they are accountable even for their social behaviour and their behaviour in public life.
The new chief justice successfully made a point that I sometimes find myself at pains to explain to those who appear unable to understand it: that the security of tenure of magistrates and judges – they can be removed only if they are impeached with the consent of two-thirds of parliament – is not a privilege afforded them so that they may behave as they please with impunity.
It is a right granted to the citizens of Malta, who are thereby reassured that magistrates and judges are not subject to the whims and vengeful caprice of those who might otherwise remove them at will if they are displeased.
“It is an assurance that justice is being done,” Chief Justice Camilleri said. “This is why the independence of the judiciary is not independence from ethical rules and proper behaviour intended to distance the judiciary from any perception of wrong-doing and lack of impartiality.”
The wisdom imparted by the outgoing and incoming chief justices has always been clear in my mind. I can see that it wouldn’t be clear to those who have no proper understanding of the fact that magistrates and judges are not ordinary people, that they represent something much bigger and wider in scope than the strict narrowness of their duties in the courtroom.
What foxes me is that some incumbents see it as a job from which they can clock off to a private life conducted in public in an unseemly manner, for all the world as though they were, for example, the manager of a supermarket.
I think it is fair to say that the ministry of justice should ensure, before appointments are made, that the appointees are fit for purpose.
The systems devised many years ago for removing and disciplining magistrates and judges did not foresee situations in which individuals would be picked who are predisposed to disgraceful behaviour.
If you pick the right people at the outset, most of the problems are solved.
This article is published in The Malta Independent on Sunday today.
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Tista tghidli gudikant irrid jitnehha bil-parliament imma bil-maggoranza ta’ two-thirds?
Jekk hu hekk ghaliex ma jirrangawx il-ligi jekk veru irridu jaqtaw dawn l-abbuzi?
[Daphne – The two-thirds majority requirement is there to ensure that magistrates and judges cannot be abusively impeached by the government.]
Plus you probably need a 2/3 majority to change that law anyway…
We are eager to introduce the Whistleblower Act and at the same time we are seeing how a whistleblower or better still a trumpet blower like Daphne is being treated for exposing unbecoming behaviour by someone who should set an example.
I still cannot understand how she doesn’t realise that the sooner she goes, the better for all concerned. The outgoing and incoming chief justices have indicated, ever so diplomatically, that Magistrate Herrera’s behaviour is completely out of order.
If one has behaved in a way that one does not deem unfit for one’s position as a magistrate, then one is not going to think twice about hanging on to such position for dear life.
At this point, in my opinion, the Commission for the Administration of Justice (CAJ) should stop “taking note.”
Why should the CAJ take note of whether magistrate Herrera resembles the back of a bus (Daphne, did you specify a Maltese bus?), or whether she is middle aged, or whether she knows Saviour Balzan or not, among other trivialities?
The CAJ should take note of whether the magistrate contravened the code of ethics set for the judiciary and the standard of conduct set out in the Constitution of Malta. It seems that the court case against Daphne is not going to determine those matters.
Actually, it is becoming evident that the magistrate has selectively, even if legally, chosen to deal with the case so that there will be no court decision on the serious issues.
It is to be hoped – although this may be part of the strategy – that she will not then claim that the court has not found her guilty of those alleged irregularities.
[Daphne – The court can’t find her guilty of anything. She is not the accused. I am. She is a witness for the prosecution.]
It is important for the CAJ to keep its ears to the ground. If the CAJ does not deal with the reputation issues of the magistrate in this case, and how they will impact on the whole system of justice (which has already been shaken with other critical cases), the CAJ will be putting its own reputation on the line, from top to bottom (apologies for choosing that last word in this case).
Let me make a clarification.
I said “…that she will not then claim that the court has not found her guilty of those alleged irregularities.”
Well, she is not the one being accused here, so let me clarify that. Let us say the court determines that Daphne defamed the magistrate by comparing her to the back of a bus and Worzel Gummidge.
There is a risk that such outcome may be spinned by the likes of Maltastar and Super One that the allegations made against the magistrate were all lies, without a careful analysis of the important details.
I understand that the CAJ can see this, but if they go by public opinion, that can be easily manipulated.
This point has to be emphasised clearly now.
“It is an assurance that justice is being done”.
The independence of the judiciary is a Constitutional entrenchment to achieve that objective. The outgoing and the newly appointed president of the judiciary, as well argued in your article, in their ceremonial speeches, spoke also on the role of the Commission of the Administration of Justice as the body that watches over the guardians of our administration of justice.
And both agree that it is about time that appropriate new measures in the Commission’s structure and operations be introduced to ensure effective decisions.
This brings to mind the famous old adage: quis custodiet ipsos custodes? Thus, in the sphere of the administration of justice we have a reply to the Latin quote. But what about the National Audit Office?
Even here there is a Constitutional protection entrenchment to ensure that this Office adheres to its known responsibilities without fear or favour. I, feeling a pain in my heart, did face the Auditor General some years back pointing out that the Constitutional protection gives his office and its people a bigger responsibility in the exercise of their duties when compiling a report, and particularly, when publishing the same report which should prove beyond any doubt if a wrongdoing is found.
Lack of professionalism creates suspicion and provokes avoidable pains on the victim. This Office deals (or plays?) with the integrity and reputation of persons, particularly if those involved happen to be a defenseless citizens.
Errors, consciously or unconsciously, do happen and remain principal elements of human nature…quis custodiet etc etc.
The Chief Justice echoed the strong feelings of the vast majority of the judiciary, and of the people of Malta and Gozo for that matter, in his address on Friday.
He certainly did not mince his words.
It is now up to the few miscreants he was referring to.
The sooner they pull up their socks and stop the rot the better for everybody concerned, which is in effect the whole country.
We owe it to Daphne for having singled out what is inexcusably scandalous and abusive behaviour by the few who should know better.
The inexcusably scandalous and abusive behaviour has – from what we have seen so far – been going on for so long, much of it in the public eye, and yet nobody seems to have so much as batted an eyelid (other than wagging their tongues in private) prior to the whole Daphne / Consuelo Scerri-Herrera saga.
The problem with this sorry country is that everyone is too afraid to talk, lest they suffer any repercussions.
“Magistrate Scerri Herrera put it down on record in court – a fact missed by the journalists who were there to report on the case – that she is not asking for my prosecution on the items that most transfixed the general public when I wrote about them last January and February, namely her serial adultery, her lying and cheating, her clandestine sexual liaisons with police officers, her sitting in judgement over one Joseph Musumeci (and finding him not guilty) while she was conducting a secret affair with his brother, and much else in this vein.”
Oh, how convenient of our court reporters. I have to add that it seems that these ‘journalists’ have no balls nor a mind of their own as they only report in a textbook manner.
Hey, come on tell us what YOU also (journalists) personally think of the case. Journalists…my left foot.
It seems OK to ‘name and shame’ an insignificant man in the street, but when it comes to a high-profile person, the cat gets their tongue.
Was Charlon Gouder of ONE News on leave the day of this sitting? I do not recall seeing him thrusting his microphone anywhere?
“Meanwhile, unknown to me at the time, another police officer had got hold of my internet service provider and demanded to know certain details about the registration of my website, telling him that I would be held under arrest until those details were released. ”
Daphne, was the confidentiality of your contributors ever at risk?
[Daphne – Of course not. They wanted to know the registration details.]
Your article gives you game, set and match D, that is if there is any justice in this world, which I am now seriously doubting.
Daphne
A question, if I may. If Magistrate Consuelo Scerri Herrera is a witness, she will be cross examined by the defence. Won’t the sordid details come out anyway, as the defence will seek to establish that the witness is of bad character?
[Daphne – She WAS cross-examined. That’s what happened in last Tuesday’s hearing.]
As the magistrate, in her infinite wisdom, has asked the police not to prosecute you for pronouncing her a serial adulteress, for claiming that she is a liar and a cheat, for exposing her clandestine sexual liaisons with police officers and for sitting in judgement on her lover’s brother and finding him not guilty – does that mean that we now have licence to believe beyond doubt that one of our magistrates, Consuelo Scerri Herrera, is a cheat and a liar, a serial adulteress, had sexual exploits with police officers and also broke the code of ethics by sitting in judgement over her lover’s brother?
[Daphne – Yes.]
Quite frankly, I couldn’t care less if she looks like the back of a bus or that of a camel for that matter. What matters is that her judgements are not tainted by her behaviour in her private life.
If only the man in front of her could take his hands away from Consuelo, then maybe we can finally see the back of the magistrate – for good.
How did she get to be a magistrate in the first place?
[Daphne – She slipped in during Sant’s brief tenure as prime minister. George Abela recommended her, and now George Abela presides over her investigation by the Commission for the Administration of Justice.]
How come George Abela did not declare a conflict of interest in this case, and move aside, since he sponsored her appointment?
Now where is that note-book…
George Abela also appeared before her in court. If I am not mistaken his case was passed on to his son Robert when he became president.
Robert Abela and his wife Lydia Abela (formerly Zerafa, now executive secretary of the Labour Party) were guests at the magistrate’s 45th birthday party. They had their picture taken with her and those pictures were posted on Facebook.
This article is fantastic. prosit. I think that whoever is in a position to take action has already missed the bus (sorry about that) and the more time passes the more the magistrate will think that what she was doing is OK.
Someone needs to point out that it is not acceptable.
It *has* been pointed out. Isn’t that why Consuelo Scerri Herrera went to the police?
Basically, magistrate Scerri Herrera is claiming that it is defamatory to be described as Charlon Gouder’s friend. Has she explained why she considers this to be demeaning?
Could it be because someone might mistakenly think that she stole his wallet in Albert Town?
Perhaps she prefers being seen in the company of Jeffrey Pullicino Orlando at lunchtime on Sunday, as she was yesterday in Sliema. I rush to add that Robert and Carmen were there too.
The magistrate didn’t so much look like the back of a bus as a cross between a Venetian gondolier and a French onion salesman, wearing a most ill-advised top with horizontal stripes and some bright red lipstick.
Trinny and Susannah really need to get on her case.
Its unfortunate that you had to endure what you have at the expense of the magistrate with her potentially abusing her position.
However your other views are pretty prudish and old fashioned and would not be valid in some other countries. ie comments on what a women should wear, or how many partners she has whether she is married or not.
[Daphne – You miss the point, Eagle. My views are neither prudish nor invalid – and that would be the case in any demoncracy. This magistrate could have sex with the dustman, for all I care, and she might very well have done on a quiet day when there was no alternative available. I mentioned policemen specifically because policemen are prosecuting officers who plead before her in court and distance has to be maintained at all times to reassure the public of impartiality and that justice is done. That’s why Asst Commissioner Michael Cassar took so seriously her claim that he had sent her drinks in a restaurant, so seriously that he wrote to the Chief Justice to deny it. And that was just a bottle of wine or some liqueurs – not a sexual relationship.]
This is your own bias and not necessarily someone else’s. So don’t make the assumption what’s good for you is good for everyone else.
[Daphne – Eagle, please keep up to speed. Consuelo Herrera is not a supermarket manager and cannot be assessed like one. Nor can she live her life as she pleases. If she wishes to live as she pleases, she must first resign her position. In assuming that role, she also took on the obligation to comport herself in a certain way and to maintain her integrity at all times. I know several people who have turned down the position simply because they were not prepared to take on all the constraints it would impose on their social and private life. Your understanding of the role of the judiciary in a democracy is very poor. I think you should read the words of the incoming and outgoing chief justices, which I have quoted here. The idea that magistrates can behave as they please as long as it in in ‘private’ is chav philosophy. Unfortunately, Magistrate Herrera has become a poster-girl for chavs. That’s what we have come to.]
Who is to judge whether this is wrong or right besides the parties involved.
[Daphne – In answer to your question: the Commission for the Administration of Justice, the Chief Justice, parliament.]
It is improper though imo that someone then does these actions for which you voice disapproval/curiosity/ridicule and tries to have you prosecuted for revealing your disapproval on your blog especially if these comments are true.
[Daphne – Yes, and to be brutally honest (for a change), if she had nothing to hide she wouldn’t be going after me with an axe.]
Can somone “force” the police to take action against the magistrate for perjury, just like they did to Chris Said?
[Daphne – Yes, but when the case is wrapped up.]
Perjury charges about WHAT? Where in her testimony did CSH perjure herself?
[Daphne – Oh, throughout. There have been lies upon lies upon lies, starting with Michael Cassar sending her drinks, which was the most blatant and brass-necked.]
Mario,
You obviously haven’t been following the case.
Here’s a link which answers your question.
http://www.timesofmalta.com/articles/view/20100311/local/no-decision-taken-yet-commission-for-justice
And this one
http://daphnecaruanagalizia.com/2010/09/23/perjury/
You said, “I didn’t even have protection when I was a key witness in the high-profile trial of a dangerous cocaine trafficker who was jailed for 15 years. But I have police protection because I wrote about the Herrera siblings.”
I refer to this article: http://www.independent.com.mt/news2.asp?artid=83919
The accused mentioned in this article is a well-known tough guy, hobza u sikkina (I choose my words carefully) with Jose’ Herrera.
The Police were right in giving you protection.
http://www.timesofmalta.com/articles/view/20050512/local/man-charged-with-gun-possession-allowed-to-go-abroad
I suppose you mean this same Noel Xuereb, the one Mark Anthony Sammut carried a gun around to protect himself from? Here he is, with Jose Herrera again.
If this Noel Xuereb really threatened Sammut, wouldn’t Herrera be an accomplice?
On second thoughts, if Herrera was an accomplice, wouldn’t he have had an interest to tell the police that he couldn’t remember any threats?
From The Times:
“Dr Bugeja said it was clear that Mr Bezzina was instrumental in the whole operation and had also made arrangements for a PO Box. He had paid a Lm3,000 (€6,988) to Simon Xuereb, whose PO box was used for the purpose.”
http://www.timesofmalta.com/articles/view/20101004/local/man-to-face-trial-for-importing-cocaine-through-the-mail
Simon Xuereb is the brother of Noel Xuereb, sons of Lippu l-Boxer (Philip Xuereb).
Simon has been found guilty of drug trafficking and association for the same purpose, and handed down a nine-year jail sentence.
Jose’ Herrera was his lawyer in the Court of First Instance. The case then went to a PN backbencher in the appellate stage. Herrera and this PN backbencher are very good friends.
[Daphne – Please give the name of the PN backbencher. It’s only fair.]
Noel Xuereb had been the chauffeur of a Labour Minister between 1996 and 1998. In February 1997, In-Nazzjon reported that he was caught managing clasdestine lotto in a football club and the Minister had to sack him.
Investigative journalists (if there are any in this country) might wish to investigate the connections between the Xuereb and the Herrera family. Realty deals concluded together at the expense of others; shady contracts; gray-area business… Beginning from the time of Judge Herrera down to our own days… There’s a whole underworld to be discovered. You don’t need to be Mario Puzo to investigate and write about this world in which members of the Judiciary, members of Parliament, and Little Dons join forces to make money.
The Paladin of the South.
Having a little break from Consuelogate…
This is a little argument 2 ‘mittlekless’ people had on a bus….
http://www.youtube.com/watch?v=2n6M9BmpUlY&feature=player_embedded#at=46
(Maybe you should put it as a post instead of just a comment here )
It is true that the President of the Republic chairs the Commission for the Administration of Justice. But, it is also true that he is one vote on the Commission. The other members – including representatives of the legal profession (the President of the Camera degli Avvocati is ex ufficio member) – can put pressure on the President to have the Commission close the Herrera file without prolonging unduly the damage being done to the judiciary in the eyes of the public.
My suspicion is that the Commission will not act because the case is sub judice.
If my hunch is correct, then we shall have to wait, and the Commission will for now limits itself to just taking note of what is happening.
However, I do not give up hope that ultimately this blot on the judiciary will be removed. As the Italians say, tardare si’, scappare no.
Perhaps the Commission will end its considerations in 2013.
On the other hand, if the magistate is restricting the scope of her complaint, then one might argue that the Commission would be in its right to investigate the other allegations which she is not complaining about.
I might be wrong, but the Commission might wish to avoid being found in breach of the ne bis in idem rule, which says that nobody can be tried for the same crime twice.
Needless to say, in this case the magistrate is not the accused, but the ne bis in idem rule could be easily invoked by analogy, mutatis mutandis as it were.
However, this objection would be resolved if the Commission were to apply sanctions on the points brought to the fore by you, Daphne, and which are not the subject of the complaint lodged by the magistrate.
If the President of Malta wants to convince us that he is beyond reproach (even though he had godfathered Consuelo Scerri Herrera way back during the Sant administration), then he might wish to let us know what the Commission has done so far with regard to those points you raised and about which CSH is not complaining.
Failure to do so would mean that the President of Malta needs to clarify his position, possibly signalling his (real or perceived) conflict of interest, and allow someone else to take his place on the Commission in Scerri Herrera’s case. Anything short of this would smack of many a thing I will refrain from referring to directly here and now.
I am morally convinced Chief Justice Camilleri was clearly implying as much in his speech. His Excellency would be wise to give heed to His Honourable Lordship.
I have no doubt whatsoever that the lady in question knows exactly the implications of what she did. She might be rather loose and flippant but she is no fool.
Her court case is a desperate face-saving attempt which has already boomeranged.
I admire the legal profession’s continuing penchant for Latin.
The Commission should send for the lady and declare in chorus, “Pudeat te, pudeat te”.
These are the famous words that rang across the Sistine chapel during the conclave that elected Pius X. They were directed by the entire College at de Kosielsko Prince Archbishop of Krakow and Crown Cardinal of Austria Hungary.
The great man certainly learned his lesson.
Anthony,
‘Lady’ ? Please !
Perhaps ‘woman’ was the word you were looking for.
If Consuelo is complaining of trivial things, would it then be legal for anybody to repeat what Daphne has been saying about the unbelievably bad behaviour of the magistrate?
Consuelo in her wisdom thinks that being compared to the back of a bus is more serious than being accused of lying and cheating.
It is not just lying and cheating. It is a MAGISTRATE lying and cheating.
I must say I was immensely impressed by the speech delivered by the Chief Justice. I think one has to understand the context in which the speech was delivered.
This was not Dr Camilleri involved in small talk over a dinner. Neither was Silvio Camilleri looking for conugal solace for his headaches over the morning coffee with his wife.
This was the highest-ranking member of the judiciary deliberately conveying his summation of all the elements of this situation, and not privately to members of the Executive, but publicly, using the general public as witness – as it were – of his important comment.
Sometimes I wonder if in Malta we do ever realize the constitutional significance of such moves.
Whereas the three organs of state are (or should in theory be) separate and distinct, this does not mean that they are incommunicado: there is constant dialogue between them.
At times it is overtly harsh dialogue (as between the Opposition side of the legislative and the executive); at times, it is overtly sweet dialogue (as is usually the case between the government side of the legislative and the executive), and at times it is covertly harsh – as in the case of the Chief Justice making his views known to all and sundry.
The statement made by the Chief Justice is of such constitutional gravity that I expect intelligent commentators (that excludes, a priori, Saviour Balzan and other such third-rate brains) to analyse it and draw their conclusions from it.
To my mind, those conclusions can only be that the judiciary is asking the other two organs of state to look into the behaviour of Magistrate Scerri Herrera, and take the apposite steps.
This will be a test of the maturity of our state – namely, whether its organs do listen to each other in a constitutional (that is non-conspiratorial) fashion. Whether there is institutional dialogue, beyond the personalities involved.
In other words, instead of the usual whispers behind the scenes, in this case we might be watching an exercise in transparency: the Judiciary is asking, in broad daylight, the other two organs to do the right thing. Namely, sack, fire, discharge, dismiss Consuelo Scerri Herrera.
For once, the institutions might really reflect the popular wish. Vox populi, vox dei, dear ladies and gentlemen of the Commission, government, and Opposition.
“Whereas the three organs of state are (or should in theory be) separate and distinct, this does not mean that they are incommunicado: there is constant dialogue between them.”
They already do! They meet at parties for charity – we saw the photos on Facebook, didn’t we? At these parties for charity even high profile journalists, who are sometimes considered to be the fourth organ of a democratic society, are invited.
That is exactly what I am saying!
Chief Justice Camilleri was very explicity conducting an interinstitutional dialogue between the judiciary and the other two organs of state.
The constitutional significance of this dialogue is beyond doubt.
By constitutional, I mean real politics, not inter-party bickering – the kind of discourse one expects in a mature democracy.
The removal of Dr Scerri Herrera as magistrate would be a real demonstration of the maturity of constitutional democracy in our country.
Nothing to do with the above commentary. It seems that the run for the election has started in earnest. PL and their cohorts seem to be setting up a database of old incidents and giving the impression that what happened is quite recent. Of course here I am referring to past misdeeds of PN people who occupy high places in government ministries, local councils, etc.
If you still have police protection it is because you’ve aquiesed to it. Otherwise, that would translate to harassment not protection.
Citizens of Lilliput unite! You have nothing to lose but your police handcuffs, and the obligation to take Kev seriously!
OK something that I have trouble understanding!
How can somebody be prosecuted for thinking that somebody else looks like the back of a bus?
[Daphne – I exposed her to public ridicule u tajta fastidju.]
What is the charge here? Political incorrectness? As far as I know, and I could be wrong, libel or defamation occurs when the average person may be misled by what was quoted, for example if you say somebody slept around left right and centre! We know Consie didn’t sue you for that!
But where is the possible confusion here? Do they think Musumeci will mistake a bus’s exhaust pipe for something else and cause great inconvenience at the bus terminus?
“I exposed her to public ridicule”
Why, because she thinks everybody agreed with you?
And even so, doesn’t that fall under the freedom of speech criteria?
Can anybody prove that in your opinion she DOESN’T look like the back of a bus?
This reasoning is not correct. I can say that in my opinion David Buttigieg is an idiot (in the medical sense of the word).
David Buttigieg would be fully entitled to sue me for damages. Needless to say, if I can prove that he is really an idiot (in the medical sense of the word), I might be exonerated thanks to the proof of truth.
But if I compare David Buttigieg to a macaque (http://www.aaas.org/news/releases/2007/images/0416macaque_lone.jpg) my opinion may be tantamount to defamation, and having the right to hold and express an opinion does not mean that my opinion can be offensive to others by exposing them to public ridicule.
This is a question of aesthetic judgment.
So, in this case the presiding magistrate will have to decide whether an expression of aesthetic judgment is tantamount to exposition to public ridicule.
In other words:
1. the case instituted by Dr Scerri Herrera is not about the truthfulness of whether her backside is similar to a bus. That is an aesthetic opinion which cannot be proven – because it can be neither true nor false (beauty is in the eye of the beholder);
2. the case instituted by Dr Scerri Herrera is, inter alia, whether comparing her backside to a bus amounts to exposition to ridicule.
In my opinion, it does not.
Had Daphne, or anybody else for that matter, compared Dr Scerri Herrera’s backside to the posterior of an elephant, a whale, a rhino, a buffalo, a mastodont, then maybe there might have been an exposition to ridicule, as she would have been compared to an animal.
http://farm2.static.flickr.com/1294/1247824021_98566c1886_o.jpg
http://image.shutterstock.com/display_pic_with_logo/101102/101102,1190220904,4/stock-photo-the-backside-of-a-large-cape-buffalo-5488840.jpg
http://africafreak.com/wp-content/uploads/2009/12/Rhino-bum-1.jpg
But comparing the magisterial backside to a bus, is absolutely not an exposition to ridicule, because a bus – unlike the animals abovementioned – is a neutral, inanimate object. That would be an inverse pathetic fallacy, and – as all pathetic fallacies – a question of empathy, not a pejorative comparison.
http://www.eportreviews.com/Europe/Malta/Vsalletta-Bus2.jpg
I think Dr Scerri Herrera miscalculated terribly and has absolutely no knowledge of literary mechanisms.
In other words, Daphne said that Dr Scerri Herrera’s backside is not beautiful, because it looks like a bus.
Is Dr Scerri Herrera arguing that being a Magistrate has beautified her? She is ugly. Her backside is ugly.
Daphne said as much, and to drive her point home, she compared that ugly backside to an ugly inanimate object.
Where is the ridicule?
I think there is a lot of haughtiness here! Dr Scerri Herrera does not tolerate being called “ugly” because she is a Magistrate!
One would expect she was appointed Magistrate for her brains, not for her looks.
(The friendship with George Abela might induce one to think otherwise.)
Daphne, you have not exposed this woman to public ridicule. She has managed to do so very well on her own. She did have a reputation, after all. Not finding your accusations of her sleeping with policemen as defamatory only drives the fact home all the more.
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When the police originally charged you were the above points mentioned ?
After reading the above, does that mean I am allowed to mention the points in public without being prosecuted ?
This case has been picked up by this media law website, which is part of The Guardian Legal Network. It describes it as ‘remarkable’ – no doubt because the UK got rid of criminal defamation a while ago and the idea of a magistrate persecuting a columnist would be unthinkable there.
http://inforrm.wordpress.com/2010/10/04/law-and-media-round-up-4-october-2010/
I believe that the most glaring example of ‘CONFLICT OF INTEREST’ by Magistrate Herrera happened while serving in the Gozo Courts in July 2005
.
On the 22nd. June 2005, Magistrate Scerri Herrera and Dr. Carmelo Galea signed a preliminary agreement (konvenju) to purchase Casa Cordina, Nazju Falzon Street, Msida for Lm175,000. (vide Official Contract – 124036/2005)
This happened when, at the same time, she was presiding court cases in which Dr. Carmelo Galea was a party.
Just four weeks after she signed the ‘konvenju’ with Dr. Gales to purchase the Msida property, she issued a court decree (in July 2005) in which she accepted Dr. Carmelo Galea’s request to sell a million pound property in Xaghra Gozo (part of bequest of which Dr. Galea was a testamentary executor) to his business partner (vide Gozowide Properties Ltd – C5931) in preference to all the other parties interested in the same property without issuing a call for tender.
This information could be easily verified and should not take years for the Commission of the Administration of Justice to investigate and decide on the matter!