Kevin Schembri Orland

Newly re-elected President of the Chamber of Advocates George Hyzler said that lawyers are concerned about the effect that the Panama Papers and other recent allegations, and the negative international coverage resulting from them, will have on the financial services sector in particular.

Asked about the effects of such revelations on the financial services sector, and whether lawyers are concerned about this, Dr Hyzler – who said that this will probably be his final three-year stint as Chamber President – replied that the issues hitting the country inevitably have a negative reputational impact that is felt mostly in the financial services sector “and many other industries which the country has attracted due to the Islands’ stability, fiscal incentives and credibility. These industries were also attracted to Malta on the basis of trust. The moment our integrity is put in doubt, we will suffer. Of course we are concerned that what the country is going through at the moment will have a negative impact on these industries in general, and on the livelihood of our members in particular. The image abroad as a result of the Panama Papers and recent allegations and developments is extremely worrying. A reputation that has been built over long years is running the risk of being lost.”

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Dr Hyzler was also asked whether lawyers are concerned about the waning trust in the institutions. He said that the legal profession is a part of Malta, and is concerned with whatever affects the rest of the country and not just the law courts and the legal profession. “As a body, we are interested and concerned about any threats, failings and inactions of the institutions, real or perceived, maybe more than others because lawyers have always been at the forefront in the defence of the rule of law. Having said that, whether one should speak out publicly or not as a Chamber is a matter of debate. As a rule, we limit our public statements to issues that affect the legal profession, or issues that concern the system of administration of justice. I for one am extremely worried about what the country is being put through, as the consequences could be very, very bad for the country in general and professionals in particular. Somehow, I get the feeling that the public is not realising the gravity of the situation.”

Speaking about his previous two years as Chamber President, he described them as having been “pretty eventful.”

“We were involved in a number of initiatives,” he said. The first thing that comes to mind is the reform regarding judicial appointments, where we led an intense campaign emphasising the need for the executive to withdraw from the appointment process. I cannot say that the system introduced was the one we had promoted. In our view, the executive should be completely detached from the appointment of members of the Judiciary and we hope that we will eventually succeed in convincing the authorities to accept this point of view.

“What was introduced required a change in the Constitution – which means that the Opposition was on-board, as such constitutional amendments require the support of two-thirds of the members of Parliament. We now have a system where a group of five people, including the Chamber President, vet applications by lawyers interested in being considered for a judicial position in order to determine whether the candidate satisfies a number of criteria. But it is then still up to the Minister responsible for Justice and the Cabinet to choose from the list of approved candidates. The functions of the Judicial Appointments Committee are somewhat limited, whilst the power of the Minister to appoint whoever he/she pleases has also been limited. Nevertheless, the Justice Minister still gets to appoint whoever he/she pleases from the list.”

The criteria as to what the committee looks for when deciding whether a candidate is eligible or not was drawn up by the Judicial Appointments Committee (JAC), Dr Hyzler said. “These were passed on to the Minister who has duly published them. The Chamber intends to propose developing the established criteria and defining them further. These more developed criteria would either be adopted by the JAC/Minister or the members could use them as guidelines. I certainly would use these expanded criteria as the basis of my interpretation of the published criteria.”

Turning to other achievements over the past two years, he said that the Code of Ethics for Lawyers has been revised and will soon be published. “This is another major milestone, and it is mainly intended to bring us more in line with the European Code of Ethics for lawyers.” He was, however, unable to reveal any details about the new code, as they are still working on certain policies such as advertising and other issues. Another achievement was the revision of the Chamber’s Statute, which has recently been approved by the General Meeting.

“Lastly, our other main focus was on the draft Lawyer’s Act and the situation has thus far been disappointing, at best.

“This bill has been pending for many years and we really cannot understand why it is the profession clamouring for regulation and not the other way around. In normal circumstances, it is the government putting on the pressure for regulation and not those who are to be the subject of regulation. We need and we want regulation in the interests of the profession.”

The Lawyers Act is the law that regulates the legal profession in all aspects – from ethics to organisation, membership, regulation of law firms, continuous professional development, etc.

TMIS asked Dr Hyzler about the adjudicator on the Small Claims Tribunal, John Bonello, and allegations made earlier this year that he had been passing comments on social media which put his impartiality into question. Dr Hyzler was asked whether lawyers should be appointed to such posts and what safeguards are in place to ensure no political bias.

Dr Hyzler was not drawn into discussing this case in particular, but nevertheless did say that “Anybody in a position of adjudication at all levels should, first and foremost, be prudent and be aware of his role and responsibilities. Once you know that you are looked upon as a person who will judge people, then you ought to exercise self-restraint and hold back with regard to controversy. I don’t just mean political controversy, but even in the way the adjudicator himself acts in his private life. Judges at all levels – and professionals, for that matter – should be careful as to how they conduct their private life as one’s credibility, the credibility of the profession and the credibility of the institution, will be at stake.”

Turning to the incident at hand, he said that the Small Claims Tribunal does not deal with political cases, so the risk of political bias is not that pronounced. “But when you are faced with someone showing such bias, you can feel that the adjudicator might not administer justice as impartially as you expect. I have appealed to the individual concerned to use prudence and refrain from expressing himself politically in public. He did point out that adjudicators are bound by the same Code of Ethics as members of the Judiciary.”

Dr Hyzler also expressed some concern over the matter of court reporting. “We have certain reservations as to whether the name of an accused should be made public at the charge stage. I admit that it is difficult to strike a balance between the public’s right to be informed and the presumption of innocence. The public does not always appreciate this principle. I am not a criminal lawyer, but I have had cases where a businessman has been charged with dealing in counterfeit notes and his business suffered immediately his name appeared in the papers. Some months later, the court found that the charge had been fabricated by an eccentric individual and the Judge acquitted him, but his reputation and his business still suffered. Of course, the principle of trials being heard in public cannot be tampered with and I am not suggesting that, but there should be more self-control by journalists. I am not speaking about politicians or public people here, who are of necessity exposed to a different set of rules. Once you go into politics you need to be prepared to take the heat.”

Asked about the scheduling of cases in the law courts, and many cases being scheduled for 9am rather than every case being given a separate time slot, Dr Hyzler replied: “I have always said that we do not have a court of law, we have as many courts as we have Judges and Magistrates. Every Judge and Magistrate is free to adopt his/her own system. I must acknowledge however, that as much as possible the system of appointments is being adopted by many more judges and magistrates and it works pretty well. Unfortunately, it cannot work perfectly if some adopt it and others do not. I do acknowledge the inherent difficulties in the large number of cases that do not allow for such appointments, such as in the courts popularly known as the ‘District Courts’, where lists are very long. What would you have them do, appoint a case every three minutes?” Dividing cases into hourly bands limits the inconvenience to the public, he said, but will not resolve the problem of cases clashing and lawyers not being able to be in more than one place at the same time.

“So lawyers try to be in three to four places at once, and it is hard to come up with a system to address this issue. I do, however, acknowledge that the Judiciary has made an effort to introduce cases by appointment, where possible. I also acknowledge that the court administration made strides forward through the good use of IT such as by sending out SMSs when cases are deferred, etc. Having said this, the problem remains, but there is more awareness about it now. If we concentrate on this issue, we can probably improve without having to make drastic changes to the system.”