Balancing the scales of justice | Josè Herrera

As shadow minister for justice, Josè Herrera is the face behind Labour's parliamentary motion which brought down Carm Mifsud Bonnici as Justice Minister last May.

The 50-year-old parliamentarian, elected on the First District and returned to the House since 1996, insists that the motion - originally penned to 'censure' the  minister over his handling of office - never put in doubt Mifsud Bonnici's honesty and integrity.

The motion, however, changed from one to 'censure' the minister, to one which called for his 'resignation' after Labour was given approval by the Speaker to amend its original document.

Word has it that Herrera was not too keen on having the motion's wording changed, but justified the amendment which sealed the minister's fate, as one which did justice to the word 'censure'... which is a polite way of telling a person in authority that he failed to do his job right.

"When I worded the motion, I made it a point to mention 'censure' as is customary in the British House of Commons, but it was later changed by the party whip to 'resignation' after government MPs attempted to give the motion a different interpretation," Herrera said, adding that the situation escalated to a point where government MP Franco Debono was rightly insisting for Mifsud Bonnici to do the right thing and recognise that censorship in his regard was 'politely' inviting him to do the honourable thing, while the entire government bench was diminishing its meaning as a mere 'ear pulling' exercise.

Reiterating his conviction that Mifsud Bonnici's honesty and integrity were never in doubt, Herrera said however "the minister's decisions had brought chaos in the administration of justice", citing the minister's procrastination in introducing the right to legal assistance as one of the major reasons behind the motion.

But was Labour opportunistic to table the motion at a time when Franco Debono was becoming more vocal in his criticism towards Mifsud Bonnici, and banked on his vote to win it?

"No, we were not opportunistic. We were indeed listening to what Debono was saying, but we have our own vision for justice, and we wanted to set the agenda and show that we mean business on this crucial pillar of a democratic nation."

So how are things between Herrera and Mifsud Bonnici, who returned to practicing law since his resignation?

"We see each other in Court, and we talk on work related matters, but Carm is a man who has grown up within a political family, which has given him a tremendous formation. I could see that he has taken it as a man, and understands that it's the ruthlessness of politics, and considers the matter as a part of that reality," Herrera says.

I meet the Labour MP in Valletta, and we chat over a quick lunch at the Casino Maltese, a traditional getaway haven for lawyers and members of the bench.

Thank God that the restaurant was empty on Friday afternoon though, as I prodded Herrera to react to the announcement by government that as of Monday, all members of the judiciary are to start benefitting from an increase in their salaries and enjoy an uncapped pension.

The agreement has put an end to a two-year long unofficial boycott of national day celebrations by the judiciary in protest about their work conditions, including wages and pensions.

Herrera reveals that the Labour parliamentary group met to discuss the matter last week and resolved to slam the announced increases in salaries and uncapped pensions as "insensitive" at a time of economic crisis.

"I know that the judiciary won't really like what I'm telling you, and that they will be remarking about my words as they gather on Monday for the opening of the new forensic year, but the truth is that the announcement is totally out of synch with reality, especially in the wake of the recent uproar over ministerial and MP's pay rises," the MP said.

"Although Labour recognises the need for a 'just' financial package for the judiciary, the announced increases came at a time where many people are being asked to make sacrifices, and Labour would have preferred to have the increases linked to a holistic reform of the entire judicial system."

He stressed that while Labour agrees in principle with the proposal to raise the retirement age for judges from 65 to 68, "the financial package lacked style and sensitivity at its timing".

As of tomorrow, judges and magistrates are set to receive uncapped pensions similar to retirement arrangements for parliamentarians, meaning that retired judges and magistrates will receive two-thirds of their actual salary, while other pensioners receive just two-thirds of an established threshold, set at a maximum of €21,000.

The new pay package will see all members of the judiciary receive a €12,000 raise, staggered over three years, which means that, by 2015, a judge will be receiving a total package of about €62,500 while a magistrate will get just under €57,000.

This aside, Herrera talks about Labour's plans for what he describes as a major overhaul of the justice system, promising a more 'just' and 'efficient' system, which corresponds with contemporary realities.

While making no bones about the quality of decisions by the Maltese courts that could be influenced by the political allegiances of magistrates appointed by the executive, Herrera says that a Labour administration will change the way members of the judiciary are appointed.

He argues against the current system - borrowed from Britain - where judges and magistrates are appointed by government.

Herrera, whose sister is Magistrate Consuelo Scerri-Herrera, is proposing that judicial committees composed of the judiciary, the Attorney General's office, and members of the bar, screen the recommendation of a magistrate appointed by the justice minister.

"I believe the Scots model of having judicial committees screening the minister's choice before a formal appointment can go a long way to have a well-rounded opinion on the quality of the magistrate.

"I would not overhaul our tradition of having the executive appoint the magistrate: political accountability there falls on the minister. The minister must not be the only power to appoint a member of the judiciary, but committees scrutinising the minister's choice would have the last word on whether it is a suitable appointment or not, is a more transparent solution."

As the MP argues on the need for the justice minister to divest from absolute discretion to appoint or promote members to the judiciary, I point out that from the way he's talking, should he be appointed justice minister he would be practically shutting the door to his sister from ever making it to Judge.

"Well, we have seen this happen in our recent political history, when Jo-Jo [Giuseppe] Mifsud Bonnici was appointed to the senior bench, his brother Ugo was a minister, but didn't attend Cabinet that day..."

Herrera insists that any appointment to the bench must be based on integrity and experience. Additionally, they all must be eventually held accountable according to their performance.

The MP is candid about the perception that exists within the Maltese courts that magistrates - who are appointed by the executive - tend to hail from a friendly political stable. "It's not just a perception, but it is true that there are ulterior motives for certain appointments."

As the quality of some judges and magistrates has been called into question, and as the Chamber of Advocates forcefully pointed out last year that "members of the judiciary are not accountable", Herrera is pushing for further reform within the Commission for the Administration of Justice which, under the chairmanship of the President of the Republic, has a limited role.

Herrera is all for a 'self-regulatory' regime, by which all members of the judiciary would in fact be their own watchdogs.

He argues for more discipline and accountability from magistrates and judges, who by the very nature of their status as the third pillar of democracy, are not answerable to the executive or legislative branches for their actions.

While helping secure the balance of power, questions are however raised over who should enforce discipline when the judiciary makes mistakes.

The Commission for the Administration of Justice - which is a constitutional body - can reprimand the judiciary, but its rulings can be ignored.

Judges and magistrates can continue to function unhindered, even if they fall foul of ethical standards expected of them.

At the most extreme level the Commission for the Administration of Justice can recommend the impeachment of a judge or magistrate to parliament. But this is not a decision taken lightly and has rarely been used, and requires a two-thirds majority of the House.

I remind the MP that it was Labour who opposed the impeachment of members of the judiciary, and its track record in recognising the judiciary's autonomy is somewhat tarnished, given how the late prime minister Dom Mintoff had suspended the Constitutional Court, crippling the process of legal redress.

Herrera responds that "as a politician responsible for justice, I have no moral obligation to be apologetic in any manner. It's true there have been instances when the Labour Party was duly criticised in this regard during the 1970s and 1980s, but I must emphasise that the PL today is hell-bent on portraying itself - even in substance - as very democratic".

He goes on to insist on the need to put the past to rest and to look forward beyond the 'tarnished' image.

So beside the changes in the way magistrates and judges are appointed, and possible changes to the composition of the Commission for the Administration of Justice, what further reforms is a Labour administration eyeing?

Herrera reveals the intention to introduce a judge's facility to hand down 'ex-tempore' judgments, where he would immediately announce an off-the-cuff decision after hearing the parties litigate a case.

He claims that this would effectively increase the level of efficiency and eliminate the backlog to hundreds of pending cases, which don't really need research or argumentation.

Herrera is adamant to see a change in the way inquiries are conducted, and is proposing the setting up of an inquiring magistrate, who would not also serve as an adjudicator. 

"It is of the utmost importance that investigations are carried out by the judiciary. It is not in the spirit of the law for a minister to appoint his own confidant to investigate allegations levelled against him or his ministry. More often than not, a retired member of the judiciary would carry out such investigation and would, as experience has shown, exonerate the government," Herrera argues, expressing irritation over the fact that government was intent on restricting the powers of inquiring magistrates.

He claims that the then justice minister had gone as far as to propose amendments aimed at changing the law to make it mandatory for the magistrate to seek prior permission from the Chief Justice before holding an inquiry, in the aftermath of certain judicial inquiries which had embarrassed the government.

"The proposed amendment was to say the least scandalous, because it amounted to an attempt by the Executive to interfere unduly in the administration of justice."

Another issue set for reform is arbitration.

Herrera has won two cases where a Court upheld his claim that forced arbitration does not safeguard one's rights.

He claims that pronouncements by the First Hall of the Civil Court had opened the doors for hundreds of people who lost their cases in forced arbitration to contest such decisions.

He insisted that although the Court had ruled that the Arbitration centre procedures are anti-Constitutional last year, "government did not lift a finger to change the situation".

Herrera said that this was similar to the situation regarding the right to a lawyer for persons in police custody.

"This anomaly caused by the minister's procrastination created uncertainty and confusion in the justice system, which has also opened the floodgates to a series of acquittals," he said.

Herrera said that Labour is committed to bring about reform, and will leave no stone unturned to have the justice system reflect today's modern age.

He is aware of the cost of justice, with reforms costing a lot in taxpayer's money.

"We are set to position Malta as a centre for litigation, just like London, where companies flock to litigate. We are among the top five in ship registration, and could prosper on this kind of litigation, and this is where Labour is heading."