Criminal justice on trial | Joe Giglio

In December 2011, Dr Joe Giglio was one of a number of lawyers who called for a reform of laws governing the office of the Attorney General: in particular, the wide discretion given to the AG in determining whether a particular case is heard in a magistrate’s court (which entails a maximum penalty of 10 years) or the upper court, where the maximum penalty is life imprisonment.

What sparked the initial protest was a Constitutional Court ruling which described this unfettered discretion as ‘insindakabbli’ – i.e., immune to any legal challenge. This ruling would however prove very short-lived. The AG’s discretion was in fact challenged by a number of cases at the European Court of Human Rights. Last year the ECHR handed down judgement in one such case… and unequivocally ruled the same unassailable discretion to be a human rights violation.

This was very clearly a slap for Malta’s justice system, which had only just come to the opposite conclusion. As a result, Parliament was forced to introduce an amendment allowing citizens the right to challenge the AG’s decision in court. And the first ruling on the basis of this amendment, handed down by Mr Justice Michael Mallia earlier this month, found the AG guilty of the same human rights violation.

Other cases brought before the Constitutional Court since then – including a very recent one filed by Daniel Holmes, a Welsh national serving an 11-year sentence for cannabis cultivation – have likewise overturned the earlier ‘insindakabbli’ verdict on the basis of this ECHR judgement.

All things told, this seems to directly vindicate Dr Giglio’s earlier complaints about the same system. But certain questions remain unanswered. For instance: while the law courts now have a mechanism in place to limit the AG’s discretion, all those who had been judged under the previous system – and who were arguably imprisoned as a result of a vitiated legal process – remain in prison to this day, despite the fact that the system which tried them was found to be in itself illegal.

For another, the discretion issue is only one of a number of anomalies in our criminal justice system. Other problems remain unresolved, including the fact that the country’s chief prosecutor also doubles up as government legal advisor… creating a glaring conflict of interest in cases involving the government or its members.

I meet Dr Giglio at his legal office in Valletta, armed with these and other questions… including a few about his more recent appointment to a board which will advise the Nationalist Party on justice and home affairs.

But first things first. Is he satisfied with the outcome of the ECHR verdict? And does he think the resulting legal amendment suffices to address the anomaly he has complained about for so long?

“I think it’s a good start. Even when you see how the criminal courts started to interpret and apply this remedy, I think it’s very positive.”

At the same time, however, the view from outside the legal system is not necessarily so optimistic. The powers enjoyed by the AG have been deemed illegal; yet the solution did not actually strip him of these powers. The AG still has discretion to make decisions that have an enormous bearing on the outcome of a trial; the only change is that his decision can now be challenged in court… which also entails headaches and obstacles (not least, financial) for the person at the receiving end of the injustice. In what way, then, has the problem been solved?

“Solved? I didn’t say it has been solved. I said it was a good start. What the European court ruled against was the system as it was before these amendments. A remedy has now been introduced that outlines, in a rather extensive way, the necessary guidelines as to which court a particular case should be tried in or not. These guidelines are very detailed. The ECHR’s ruling stated that before, people were basically left in the dark about the situation. Now, the position has been clarified, and there are legislative guidelines to help us decide which case is heard in which court.”

What about cases already decided under the previous system? To cite but one example: Holmes won his Constitutional Court case on the basis of the same human rights violation, but beyond a rather paltry compensation of €7,000, the injustice itself has not been rectified…

“Unfortunately for people in that predicament, the only solution they have is that they would most probably be given monetary compensation. It is unfortunate, yes. This is why I, along with many other lawyers in this field, had been clamouring for long that this discretion ought to be revisited...”

But he also argues that the courts are powerless to overturn previous convictions. “The court can only apply the law as it was at that point in time. It does not have the power to not act within the parameters of law. That is why it is ‘justice according to law’…”

Some might argue that justice on those terms is in fact no justice at all…

“Perhaps, but the situation is that the courts do not have the power to change the law, only to apply it. It falls to the legislature, the executive, to do something about it…”

Here we have ventured into political territory: a territory Giglio will soon be actively involved in himself, in his new capacity as political advisor to the PN. It would seem from his reply that the real reason this situation dragged on for so long was not because of any inherent problem within the law courts, but because MPs failed to act on an injustice until they were forced to by the ECHR.

How does he account for this failure? He shrugs. “Don’t put that question to me. Ask it of the person who introduced that system, and of the persons who opted to leave it there. What has happened in the meantime is that while our insistence, as defence lawyers, had always fallen on deaf ears insofar as the lawmakers are concerned, it has finally been vindicated by the European court. It’s a small consolation, but unfortunately this is how the system works. The consolation is that, at least we had the foresight to realise, years ago, that this was wrong…”

And yet the same applies to other areas where the justice system could be improved, but where change is continuously resisted at legislative level. Another anomaly concerning public prosecution in Malta is that it is fronted in open court by the police, who also get to amass the evidence at arrest/interrogation stage. The decision to arraign or not has to be taken on the basis of this evidence… which also means that in our system, there is no buffer zone to ward against vexatious prosecutions.

A practical example would be the recent case of a man unjustly imprisoned over fabricated claims that he had sexually abused his daughter. There were glaring anomalies in the investigation that might have come to light sooner, had the evidence been vetted by an independent prosecutor…

Giglio nods, as if to suggest that he could come up with dozens of other analogous examples himself.

“I think that this system we have today basically needs an overall. It is archaic; it was introduced at a point in time, way back in 1854, when things were completely different. Society has since evolved; investigative techniques have evolved and so has crime. Unfortunately I must say that the system did not evolve in step with these changes. The situation is such that the role the Attorney General serves now goes far beyond what it was originally intended to be.”

Past attempts to address these issues were piecemeal, he adds.

“They were not holistic, and failed to take in the wider picture. The time has come to change the way investigations are carried out, and prosecutions conducted, and to have a situation where the whole process moves faster and that where those who erred are truly made accountable…”

Unaccountability, he hints, remains rooted at the core of the problem.

“When, in society, you are afforded responsibilities… if you have an investigation that, for example, was badly handled, or a prosecution that, with all due respect, wore blinkers just like a horse… then I think we should have a greater possibility to be able to go back to those persons and hold them accountable for their actions. The truth is that it can be done today, yes; but at the end of the whole exhausting process, the only consolation is that the person at the receiving end of the injustice will be acquitted.

“I don’t think that is enough. Even because I think people who wield power need to understand that, should they not exercise that power professionally and appropriately, there will be consequences. If these people do not realise this, they will feel they are immune. They will feel that no one can ever go back and point a finger at them, so to speak. Today, investigators and prosecutors … even defence lawyers come into this equation… must all understand that they are here to serve. They must understand that they are here to help in the delivery of justice towards citizens. The same applies to judges…”

Where does he see the most urgent need for reforms?

“Let’s discuss the mechanisms we have today. Starting with the Police Board, which is there to deal with any type of allegation of misconduct by prosecuting and investigating officers. I don’t think the tools we have given this board – and indeed the legislation itself that created it – suffice to reach this aim. The board has very limited powers, and all it can do is make a recommendation to the Commissioner of Police… which obviously the commissioner, with his discretion, can opt to ignore completely.”

Coming back to the AG, Giglio questions why the government’s legal advisor has now doubled up also as a consultant to the police.

“The AG is a public prosecutor, strictly speaking, only in the criminal court: only in cases where the maximum penalty is 10 years or more. That is where he becomes a prosecutor. However, today the AG is consulted by the police before they arraign someone in any court. Does it make sense? Was this originally intended to be his role? This is the same AG who, throughout criminal proceedings, can opt to withdraw a charge at any stage. Would he do this, if he had already been consulted on the arraignment?”

Giglio answers his own question. “I don’t think the AG should be advising the police. There should be a different unit altogether: a prosecution unit, which is separate from the office of the AG…

Another institutional problem concerns the Commission for the Administration of Justice, whose remit is to regulate the legal profession from lawyer to judge. “The Commission does have powers vis-à-vis lawyers. It can make recommendations leading to a warrant being withdrawn, for instance. But in the case of judges, it can only say that, prima facie, there was a case of misconduct. Then the issue is referred to parliament, and an impeachment process begins. Which requires two-thirds approval by members of the House…”

Recent examples of this process have illustrated just how ineffective it is in practice. Past attempts to impeach judges have been thwarted, either because the two-thirds majority did not materialise, or because proceedings were dragged out so long that the judges concerned reached retirement age unimpeached.

Again, however, this points to the same overall pattern. We can all see where the problem lies, yet it proves impossible to resolve for political reasons. To in any way change the system governing appointment or removal of judges, the Constitution would have to be amended. This particular section also requires a two-thirds majority – so the same snag that rendered the CAJ toothless, also renders parliament unable to remove it.

But it is not the case with the other anomalies we talked about. Changes to the set-up of the Police Board or the office of the Attorney General can be effected through simple legislative amendments. So why is this so difficult to achieve in practice? What is hindering the process of reform?

“I think perhaps the fear of something new. The fear of an overhaul. Sometimes members of the legal profession tend to be conservative. They tend to resist change…”

As evidenced by his campaign to challenge the AG’s discretionary powers, Giglio seems keen to force this change upon a reluctant political establishment. Has this got anything to do with his more recent decision to accept an appointment to chair a policy forum advising the Nationalist Party on justice and home affairs?

“Yes, it was one of the considerations.”

Reason I asked is because nearly all the aforementioned problems had in fact accumulated over 25 years with the PN almost uninterruptedly in power. This in turn means that Giglio will now be advising the very people who either created this mess in the first place, or who perpetuated it. And it is a politically sensitive area, too. Justice issues formed part of the campaign that resulted in a landslide defeat in March 2013. Labour’s promise of a justice reform may not have been the deciding factor in the result… but it did reflect widespread discontent over how this area had been handled by past Nationalist administrations.

So what is Giglio going to tell them? What does the party need to do to ensure that its policies on justice are credible and effective?

“What will I tell them? I’m going to be frank. For yes, it is true. The PN was in power for 25 years, and did nothing about it. But that is why the PN has to look forward. I think it needs to do four things. To look at the policies of the past, and see which ones are still relevant today; two, to open itself and consult with all the stakeholders; three, to renew those policies and give them a vision for the future; and four, to have the courage to implement those policies.”

Naturally it will be the people who form part of the PN’s next electoral team who will have to implement the same policies. This raises a rather inevitable question. Will Giglio himself be one of them? Was his acceptance to chair this policy advisory board, also the prelude to his own career in politics? If so, he would be in line with a long-standing tradition of defence lawyers-turned-justice ministers, including the late Guido de Marco and the incumbent minister Manwel Mallia…

“I do not exclude anything. I take everything step by step, day by day. For the time being, this is the task that has been assigned to me. Yes, it obviously has political connotations. I will carry it out to the best of my abilities. Then we’ll take it from there…”