‘We are running on empty’ | Owen Bonnici

It's a quiet day in Valletta: so quiet, in fact, that Owen Bonnici has to instruct a ministry official to open up his secretariat's offices on Treasury Street just to let me in for this interview.

That, I suppose, is what happens when you fix an appointment for late afternoon on a public holiday (7 June) - but such is the inflexibility of Bonnici's schedule at the moment that no other slot could be found for the entire week.

And what is keeping him so busy, you might well ask? Suffice it to say that when we met last Friday, he had just come back from a Council of Ministers' meeting in Luxembourg, and strange though this may sound, in view of the many glaring problems facing the EU and eurozone at the moment, it seems that the many blemishes that deface Malta's justice system (that is, Bonnici's entire portfolio) were high on the EU's agenda.

"They have shown us the yellow card," Bonnici informs me rather ominously. "The situation as it stands today is so serious that justice reform has now been listed by the EU as a CSR (country-specific recommendation), which means it will come up for discussion at the next Council of Ministers' summit..."

Bonnici doesn't hide the fact that he is particularly anxious about the situation. Malta's justice system, he says, is being "closely monitored" by the European Commission even as we speak. Even without this added pressure, the country is still reeling from the latest corruption scandals involving the law courts, while individual sentences and court decisions are still subject to regular, withering criticism in the press.

The only good news, it seems, is that Malta is responding to the pressure. Just the day before leaving for this meeting, Bonnici presented the press with a copy of a report drawn up by the Justice Reform Commission, headed by former European Court of Human Rights judge Giovanni Bonello.

Not unlike the EU's own Cabinet of Ministers, this particular commission also identified a plethora of often very fundamental problems undermining the efficacy and functionality of the local justice system.

So my next question for the man politically responsible for all this and more is, What does he make of the often damning conclusions reached by the Commission?

"I think the proposals contained in this report are nothing short of revolutionary", he begins with visible satisfaction. "I can't say they exceeded my expectation, because the report is the work of very professional people and I expected nothing less than an excellent job. But to produce such an exhaustive report like this in so short a timeframe is extraordinary by any standard".

Bonnici is in fact convinced that the proposed systemic overhaul represents "the most audacious reform in this area in 30 years".

And yet we have been talking about judicial reform in this country for just as many years. Ironically the political crisis of the recent past was itself inextricably linked to the same issue: Franco Debono, whose 'rebellion' ultimately unseated the Gonzi administration, had placed judicial reform at the forefront of his entire battle cry for change.

Even without this fact, several of the report's individual recommendations - for instance, the one regarding the appointment of judges and magistrates by the executive, in a clear breach of the basic principle of separation of powers - are points that have been raised separately, including by this newspaper, for ages.

So how did we allow this situation to reach such a dire state? Bonnici doesn't say it in explicit terms, but the fact remains that the aforementioned political crisis also undermined the previous government's ability to effect some much-needed changes. Meanwhile, as Bonnici rather wryly puts it, "We are running on empty".

The implications, he adds, go far beyond the more basic (and, let's face it, crucial) issue of the administration of justice. Problems which prevent the law courts from functioning properly also dent Malta's credibility on an international level... and this in turn has a direct impact on foreign investment.

"First we successfully attract foreign companies to set up shop in Malta, and if for whatever reason they end up in court they find themselves going through legal proceedings which take 10 years or more, the credibility of the country suffers as a result, and future investment is lost."

And while the commission's report presents what he calls a "step in the right direction", effecting the recommended reforms will not exactly be plain sailing. Some of the proposals require substantial investment to be actuated: for instance, the creation of a new post (judicial assistant) to lighten the caseload in the criminal court.

Others require Constitutional fine-tuning, sometimes necessitating a two-thirds parliamentary majority - which naturally exposes the entire process to the threat of political horse-trading.

Nonetheless, Bonnici is confident that, given the sheer severity of the implications, the opposition will cooperate.

"I appeal to all parties involved to rise to the occasion, and in fact many of them already have. In parliament I have had meetings with (opposition justice spokesperson) Beppe Fenech Adami and he was very responsive. There is an acute need for this reform to succeed, and I have no doubt the opposition is very conscious of this too."

Here I draw the junior minister's attention to what is arguably the most inflammatory conclusion of the entire report: the fact that Malta adheres to a unique, sui generis system whereby the executive arm of government chooses the judiciary, in the absence of any form of external scrutiny.

Considering that the independence of the judiciary is such a vital element to democracy, how on earth can this absurd situation have been retained for 50 years, without anyone seemingly even realising it is a democratic non sequitur in its own right?

Bonnici looks slightly uncomfortable as he replies. "Before going ahead I feel I have to point out that we are about to appoint two new judges... I felt I had to say this now so there is no misunderstanding later. It may sound contradictory to declare that I agree totally with the conclusions of the report on the appointment of judges, which I do, by the way... and then appoint two judges myself. But we had no choice, as we cannot conceivably wait until next October, or whenever, to address the shortage of adjudicators in court."

That's OK, I reply, because we already knew about the appointments anyway. But returning to the implications of the report's findings in this regard, Bonnici admits that while the situation was visible to one and all, it was simply ignored throughout recent history.

"Austin Gatt, in his own unorthodox way, was perhaps the last justice minister to undertake important reforms in the field of justice. He introduced IT systems in the law courts, for instance..."

Bonnici also adds that some of the commission's proposals today - namely, the idea to 'depenalise' certain crimes so that they can be dealt with effectively by localised tribunals, thus lessening the active caseload before the criminal courts - are effectively an extension of reforms originally introduced by Austin Gatt in the early 1990s, specifically, the warden system, which had relieved the courts of having to hear a number of minor cases (for example, regarding traffic accidents).

But that, he continues, was around a decade ago. "And after Austin Gatt? Nothing at all, or nearly nothing".

At this point I ask Bonnici if he is aware of the supreme irony in his own statement. The minister immediately after Gatt (who, in Bonnici's words, did nothing or nearly nothing) was Tonio Borg. Today, Tonio Borg is a member of the same European Commission that is pressuring Malta to effect many of the reforms that he himself resisted for almost a decade.

Bonnici admits he hadn't thought of it this way. "It is rather ironic, yes... even if I feel I ought to point out that Chris Said, who was appointed very recently, did at least try to undertake some reforms, though he didn't have much time".

In the interest of full fairness, we will have to add that Carm Mifsud Bonnici also chipped in with the introduction of the Family Court: not a perfect reform by any standard, but at least it marked a continuation of the general decentralisation process.

But this remains a classic case of 'too little, too late'.

"At the end of the day we are doing things that should have been done years ago. And as a result we have to move fast".

As already pointed out, another aspect of the commission's proposals concerns 'decriminalisation' - and interestingly, the commission defines this as the complete removal of an offence from the criminal code, to the effect that it doesn't remain a crime at all.

A secondary level of the same concept concerns 'depenalisation', whereby the infraction concerned will no longer be considered a criminal offence but instead an administrative one (involving non-penal sanctions).

All this chimes in with an ongoing global discussion of decriminalisation and legalisation of soft drugs, which has also reared its head in Malta, where the law courts seem to have developed a rather nasty habit of issuing wildly conflicting sentences for people convicted of 'drug trafficking' - often handing down outrageously draconian sentences for simple possession of soft drugs, which stand in stark contrast to conditional discharges or suspended sentences for much more serious crimes.

This situation has been causing regular problems since the 1990s - at one point Tonio Borg had to personally appeal to release a German couple from preventative custody over importation of a minuscule amount of marijuana (Malta having already been internationally embarrassed by analogous cases in which foreigners were jailed over petty possession).

Why has it taken us so long to get with the programme and to stop behaving like a third-world banana republic when it comes to drugs?

Here Bonnici makes a welcome break with the tradition of simply ignoring the question (which I have separately asked to every justice minister since Borg).

"First of all the issue of depenalisation is not just about drugs - there are other crimes which can land people in court when there is no real need. But in principle, yes, I agree that this is an avenue we should be exploring".

Would he support a specific call for decriminalisation of soft drugs, of the kind made by the Global Commission on Drugs? As expected, Bonnici hides behind the usual 'we need to consult with all stakeholders' approach.

But he soon ventures to risk a personal opinion on the subject.

"If someone is caught with a joint, he or she shouldn't go before the court of magistrates. Still less should there be wild discrepancies in sentencing, with some magistrates giving conditional discharges and others handing down hefty sentences. Personally - and so long as we are talking about simple possession as opposed to trafficking - I don't consider this to be a justice issue as much as a health issue. If someone has a health problem he should go to a doctor, not be dragged in front of a magistrate".

Nonetheless, Bonnici considers this a 'bold step' which will have to be considered in all its complexity.

"Another aspect of the same problem concerns what happens when reformed drug addicts are called up for their hearing years after being originally arrested. In many cases, the crime would have been committed a long time before, and the person concerned might have attended a rehab programme in the meantime. Then he is found guilty and sentenced to prison. This is clearly unfair".

Another cause for concern is Malta's police conduct regime, which in practice means that minor misdemeanours committed in a perpetrator's youth often return to haunt him or her much later on in life. "I know of one instance in which a teenage girl stole a pair of shoes-" (here I interrupt him to point out that Chiara recently wrote a song about the same case... but back to the real world). "Ten years later she found she couldn't get a job because she had a criminal record, just because she had done a stupid thing once in her life".

But while the reform proposes to look into all these and other areas, for Bonnici the top priority remains a structural overhaul of the entire system, and here he says that some of the spadework has already been done... even before the report was commissioned.

"On two specific areas - namely, the Gozo court and the administrative courts - the basis for reform had already been laid down by a parliamentary committee chaired by Franco Debono and also including Prof. Kevin Aquilina. It's an excellent piece of work which can be implemented straight away - ready to serve, as they say. In fact I can't understand why the previous administration didn't implement it".

Then again, there were many other things the previous administration could have done but didn't. One of these was a promised Whistleblower's Act that never materialised. I close off with a question about the same piece of legislation, which the Labour government is committed to introducing in its first year in office. Time is running out here, too. What stage are we at with this particular electoral promise?

"On the Whistleblower's Act, all I can say at this stage is that we have already discussed the issue twice at cabinet level and will present a formal proposal to cabinet and the Parliamentary Group imminently".