Case notes investigated by the Parliamentary Ombudsman
A young professional, who had been summoned to give evidence in front of a Judicial Assistant in pending court proceedings, lodged a complaint with the Ombudsman arguing that because of unclear information provided by the administration of the Law Courts about what attire is required in these instances, there was a possibility that a male who attended a court sitting without a tie and/suit could be charged with contempt of court. Complainant elaborated that he had enquired with officials of the Law Courts about whether a specific dress code applied in these cases and had been informed that this existed only in the case of lawyers. This not withstanding, complainant was advised to wear a dark suit with a tie, since this is what members of the judiciary generally insist on. These officials also informed him that in terms of Regulation 27 of Legal Notice 333 of 2008, any Court Executive Officer could refuse entry into the precincts of the Courts, if he was of the opinion that the person was not adequately dressed.
Complainant, was not satisfied with this reply and pointed out that there is no legal obligation that one should wear a tie and that the opinion of an executive officer is somewhat subjective. He therefore requested a copy of the latest publication issued by the Director General in connection with this issue, quoting Subregulation 2 of Regulation 27 which requires the Director General of the Law Courts to periodically inform the general public what type of dress is regarded unacceptable within the precincts of the Courts of Justice. The Director General informed complainant that no such publication had been issued and that in his opinion everyone is aware what decent attire is.
Complainant, felt he had not been provided with a conclusive answer to his enquiries from the person entrusted by law to establish what attire is unacceptable in Court and referred his grievance to the Ombudsman, contending that the Law Courts were abusing their authoritative jurisdiction, by imposing their conservative views on society and requesting the Ombudsman to establish if –
a) The court authorities were failing to provide adequate information to the public of what attire is unacceptable within the court building, notwithstanding the provisions of Regulation 27(2) of the Court Practice and Procedure and Good Order Rules; and
b) If it is legal for fines for contempt of court to be issued in connection with inappropriate attire, if the public has not been informed of what is unacceptable attire.
Complainant additionally suggested that the aforementioned Legal Notice should be amended, either by indicating which attire is suitable, or by completely omitting this provision, which he contends infringes on the individuals’ rights because of latency to adapting to change.
The reaction of the Courts of Justice Department
When asked for his views on the complaint, the Director General, Courts of Justice Department, explained that he had advised complainant to wear a tie and suit, but had not obliged him to buy a suit, since it is accepted practice that males wear a jacket in court, not necessarily a suit. He further remarked that the general public is well aware of the attire which is appropriate in Court.
The Director General emphasised that he was not responsible for the drawing up of the Regulations, which are drawn up by a specifically appointed Board and are subsequently approved by the President of the Republic of Malta – consequently, complainant’s argument that he is the person officially responsible for such rules, is inaccurate. He however, admitted that although the Legal Notice put the onus on him to periodically update the public about what dress code is acceptable or otherwise within the precincts of the Law Courts, he had not issued any notice so as to avoid listing a detailed description of what is acceptable and what is not, an exercise, which in his opinion, could end up being a parody of attire with the Court’s Director General explaining in detail the lengths of skirts and blouses. By way of conclusion, he pointed out that rather than amounting to an abuse of the Court’s authority, as complainant contends, the regulations create a sense of dignity and respect for the institution.
Considerations and comments by the Ombudsman
In the first instance, the Ombudsman observed that his remit does not include the amendment of existing legislation, a role reserved to Parliament, the legislative branch of government. His function is that of ascertaining whether an administrative act or failure to act, on the part of a government department or entity is in conformity with existing laws and regulations or constitutes an act of bad administration. The Ombudsman however commented that where he believed that a law is unjust or oppressive, he can make a recommendation for a change in that law. He also stated that in terms of the Ombudsman Act he was not empowered to scrutinise actions of the Judiciary.
The Ombudsman noted that complainant was correct when he stated that ‘The Court Practice and Procedure and Good Order Rules’ stipulate that:
- the Director General (Courts) shall, from time to time, inform the general public as to the type of dress which is unacceptable within the precincts of the Courts of Justice; and
- subject to what is stipulated in the Proviso of Regulation 27(1), every court executive officer may refuse entry into the precincts of the Courts of Justice or into any courtroom to a person who, in his opinion, is not properly dressed.
He however drew complainant’s attention to the fact that these rules are created by the Rule Making Board, which in terms of the law is composed of members of the Judiciary, the Attorney General, the President of the Chamber of Advocates and the President of the Chamber of Legal Procurators. The Board is entrusted with the formulation of subsidiary legislation intended to regulate matters intimately affecting the conduct of court proceedings which the legislator considers should be regulated directly by members of the judiciary and the legal profession. This intention of the legislator is evident in Article 988 of the Code of Organization and Civil Procedure which stipulates that judges and magistrates are empowered to enforce order during the sitting over which they preside and to maintain good order and decorum within the precincts of the courts in which they sit.
The Ombudsman highlighted that in terms of Regulation 27(1), where a court executive officer is of the opinion that a person who has been summoned to appear before a court is not suitably dressed, the officer is bound to inform the judge, magistrate or member of the tribunal before whom the person was due to appear, and take instructions from him as to how to proceed. This is so, because fines for contempt of court are issued as a consequence of the decision taken by the presiding Judge, Magistrate or member of the Tribunal, that a person is not properly dressed and is therefore guilty of contempt of court. A decision which is taken in accordance with the powers vested in the Judiciary by the law and consequently cannot be reviewed by the Ombudsman.
The Ombudsman however considered that in terms of Regulation 27(2) the Director General was periodically required to inform the public on what type of attire was unacceptable within the precincts of the Courts of Justice and verbally drew the attention of the Director General about this matter. Following discussions with the Director General, the Ombudsman was informed that guidelines were in the process of being published by the Department.
The Ombudsman found that complainant’s grievance that the Director General (Law Courts) was required to issue notices in connection with what attire is regarded as improper within the precincts of the Law Courts was justified. He however indicated that from the documentation forwarded to the Office, the court administration had promptly answered complainant’s enquiries and provided him with the guidance required. On the other hand, he stated that had complainant been more specific and clear in his enquiries, stating that he had been summoned to appear before a Judicial Assistant, he would have been informed that the dress code is less rigid and that no tie or jacket was required.
The Ombudsman concluded that the current policy that male members of the public wear a jacket and tie appears to be a reasonable one and cannot be considered as an abuse of authority by the courts. It is a simple requirement bearing a reasonable relationship to the proper administration of justice in that court. Determining dress code is perceived as a way of ensuring proper decorum and discipline in Court and cannot be qualified as an abuse of the court’s “authoritative jurisdiction” unless manifestly unreasonable or arbitrary. The matter falls squarely within the discretion of the competent authorities and one is expected to conform with existing or prevailing regulations.
Outcome of the case
Some months later the Director General (Courts of Justice) implemented the recommendation of the Ombudsman and published notices advising the public that members of the public may be refused entry into the precincts of the Courts of Justice or in any Courtroom should they not be properly dressed. These notices indicated a non-exhaustive list of attire deemed to be unacceptable.