Is justice being served? | Giovanni Bonello

These are trying times - if you'll excuse the admittedly awful pun - for the local law courts. Not only has the legal system been rocked in recent years by a number of corruption scandals, but popular discontent with justice as a whole has arguably hit an all-time low.

Most of the complaints centre around the apparent sluggishness with which the machinery of justice actually operates, with cases often taking years to even commence, let alone conclude. But underpinning these concerns is also the unspoken issue of pressure by the European Commission: it has now placed the question of Malta's justice system on the agenda for discussion at next week's Council of Ministers meeting in Luxembourg.

It was against this discouraging backdrop that the incoming government appointed an independent commission - headed by retired European Human Rights court judge Giovanni Bonello - to draw up a list of proposals in order to kick-start a discussion on a reform of the entire process.

I meet Mr Justice Bonello at Eddie's Café in Valletta... but before I even ask a single question he informs me he will not be responding to the recent criticism of this document by the Chief Justice, who complained about the lack of consultation with the judiciary.

"I've already had to cancel two radio interviews in light of that development," he explains, adding that he would prefer to avoid making any statement that might be misinterpreted at this delicate stage.

Fair enough, I suppose. And in any case there are dozens of other aspects of the document that can be talked about - not least the fact that it is replete with suggestions to scale back bureaucracy at the law courts.

This appears to be in line with a general trend in government policy, which is to reduce its own bureaucracy by 25%. In both cases, however, concerns have been raised about the possible removal of necessary checks and balances. Wouldn't a more expeditious legal system also remove safeguards that may be necessary to guarantee justice? And wouldn't this therefore undermine the authority of the courts?

Bonello acknowledges that this is ultimately a balancing act that needs to be carried out. "In this first document we addressed issues that affect the efficiency of the law courts. We examined a number of ways existing problems could be addressed: many would involve small changes to the law and to certain court practices. Though small, these changes should remove a number of obstacles that hinder court cases at present. But we are definitely not trying to find ways to make it more difficult for people to sue for their rights."

As an example he cites (and simultaneously rules out) the possibility of raising court fees.

"The easiest way to reduce the caseload before the courts would be to make it more expensive to file a case. But we are not in favour of putting up registry fees, or anything else that would make justice a service available only to the rich..."

If anything, the former judge insists it should work the other way round. "We want to make it easier for people with genuine claims to have access to justice, without raising the costs involved."

Moreover, at present there are a number of anomalous practices that have been accepted for so long that they now appear standard. Bonello points towards one which is a widely known cause of frustration for all people who come into contact with the law courts: the custom of simply deferring cases indefinitely when one or more of the protagonists fails to show up for a hearing.

"At present a magistrate has no option but to defer a case when the accused does not appear. This is absurd. Why should everyone else be penalised in such cases?"

Bonello points out how the status quo is often used by defendants to prolong and sometimes thwart the course of justice. "Imagine you have a case where three or four people are accused of complicity in a crime. One of them doesn't show up for the first hearing. For the second hearing another of the accused fails to turn up; and it goes on like that for years, with the case being deferred every time... eventually they all show up, but this time the witnesses - who would have come to previous hearings for nothing - are not there, and the accused are acquitted for lack of evidence. Where is the justice in that?"

All along, however, there is simply no need for any deferral in such cases. "So long as there is a good notification system in place, the case should proceed even if an accused party who has been notified fails to appear. The accused has a right to be present for the hearing, but if someone chooses not to appear, the case should go on and be decided in his or her absence."

Another shortcoming concerns the issue of plea-bargaining. Paradoxically, a system which was designed to actually save the law courts a lot of unnecessary work is being misused to such an extent that in many cases it serves the opposite purpose altogether.

"Plea-bargaining can be a very effective way of reducing the caseload, as when there is an admission of guilt, there is no need for a trial at all. If applied properly, the system can work both to the advantage of the accused and to that of society as a whole. The accused can receive a reduced sentence, and society can be spared the hassle and expense of unnecessary court proceedings. But that's only if the system is used properly..."

It doesn't always work out in practice, he continues. "The problem is that there is no fixed time limit for plea-bargaining to take place. For obvious reasons it should be an option placed at the disposal of the accused at the very first stages of the legal process. That is in fact the whole point of the exercise. Yet there are often cases when a trial by jury will already be at a late stage, and the accused suddenly decides to enter a guilty plea because it becomes obvious that the case will be lost. This is all time wasted for the law courts... yet the accused still benefits from the advantages of plea-bargaining, even if society does not. This is one area we need to revisit."

Apart from wasting time for the law courts, some of the anomalies within our legal system are also recipes for injustice in their own right. One example concerns cases which are thrown out of court because of simple mistakes made in the charge sheet.

Bonello lists the recent example of a priest who was accused of child abuse but was acquitted on rape charges because the location of the alleged offence had been wrongly entered into the charge sheet. In another example, a suspect was acquitted of rape because of a mistake in the time at which the crime was supposed to have been committed.

"Why should someone be acquitted because the police got the time of the offence wrong? And what is the message sent out to the general public in such cases? 'It's perfectly okay to rape someone, so long as you do it at 4.30 instead of 2.30'? This is clearly ridiculous."

Similar time-wasting practices involve the discretion allowed to the attorney general (who in our system also heads the office of the prosecution) to file 'requests' - the technical term is rinviji - for the court to consider a number of possible options, to summon other witnesses, for instance, or to initiate further investigations, etc. Sometimes, this procedure can dramatically lengthen the legal process.

On the subject of the AG, I interrupt to ask about the apparent double role associated with this particular office. In Malta's legal system, the attorney general plays two distinct roles: he is both legal advisor to government and also the director of the office of the prosecution. Isn't this a conflict of interest?

Bonello nods. "Yes, and this is also addressed in the document. You can't have the same person who plays the part of government advisor in the morning, and in the afternoon suddenly becomes an independent public prosecutor. The two hats are not interchangeable - they have very different functions. When the attorney general is wearing the hat of government's legal counsel, he will have a typical lawyer-client relationship with the government. He will have no choice but to take orders from his client. Yet as a public prosecutor the same person has to be completely at arm's length from the government which was his client only a few hours earlier. How can this be possible when he also doubles up as the government's lawyer? Yet the same person will suddenly be expected to be completely impartial and independent. In practice he has to juggle these different hats around 20 times a day..."

Having said all this, reforming the system is easier said than done. Many of the suggested changes would require Constitutional amendments... not least, the one concerning the appointment (and, more to the point, removal) of judges and magistrates.

"The Constitution at present only envisages impeachment - and that has simply never worked. The moment an impeachment motion is tabled in parliament, it has always become a political issue. One side of the house votes yes, the other no. In practice, the result is that judges and magistrates are free to operate with total impunity. Once appointed to the bench, it is almost as though they have been given a blank cheque. Is this a good thing or a bad thing? I don't think it is good..."

All the same, there is no such thing as an 'ideal' model - in fact, there are several to choose from, and not all are necessarily compatible with our unique circumstances.

Bonello admits that his own preferred method - that is, to make the position of judge or magistrate subject to specialisation in its own right, so that candidates take a course and sit for a competitive examination - simply wouldn't work in Malta.

"This is the system favoured on the continent, and while I would argue it is the ideal system, it is impracticable here. The catchment area is simply too small - you cannot create a university course for magistrates when there is only one opening every three or four years."

There is, however, another issue lurking beneath the surface: the all-important question of the separation of powers. The practical impossibility of removing a judge may hardly be an ideal scenario, but at least it does make it difficult for the executive to interfere with the functions of the law courts.

Wouldn't any change to this system indirectly undermine the independence of the judiciary?

Bonello acknowledges that a balancing act must somehow be performed. This, he adds, is why the commission floated the idea of an independent body, consisting of retired judges and other persons of integrity, which would not only make recommendations for the selection of new adjudicants, but could also be tasked with exercising discipline of existing judges and magistrates, possibly extending to their dismissal.

Meanwhile it is not just the system governing the appointment of the judiciary that is due for an overhaul: Giovanni Bonello's commission also looked into a number of ways in which legislation can be amended to improve the quality of justice provided by the courts. One area I bring to his attention concerns the often outrageous mismatch in sentences for different but comparable crimes. Sometimes, the sheer absurdity of the discrepancy provokes a furore... most often, however, it simply saps public confidence in the local machinery of justice. Examples are a dime a dozen: defendants convicted of serious cases of domestic violence - sometimes extending to grievous bodily harm - are known to have been let off remarkably lightly; other, relatively trivial offences have meanwhile incurred hefty penalties. How does the commission intend to address this particular issue?

"We can't deny that at present, there is no uniform sentencing policy... nor even any strategy for uniformity in sentencing. People rightly feel let down by the system. They come away with the impression that it all depends on who the magistrate is."

This all contributes to the widespread impression that justice is in many respects a lottery. And Giovanni Bonello points out another problem which takes us back to the role of the AG.

"As chief prosecutor, the AG has absolute discretion to decide whether a case is heard in the upper or lower courts - which entails significant differences in the maximum sentence. In the present system there is no obligation at law for the AG to even explain the reasons for his decision. And like sentencing, often there will be discrepancies here too - for instance, two accomplices arrested for the same crime, but one is sent to the magistrate's court, and the other to a trial by jury..."

Here, the former ECHR judge points out that the role of the law courts goes beyond the immediate exigency of meting out justice in any one particular case. "The judiciary must also meet a higher social function: its job is not just to solve individual cases, but also to set community standards. Having a sensible, uniform sentencing policy is one of the aims that the judiciary should be striving towards."

On the subject of non-uniform sentences: there have recently been cases where people have been handed draconian sentences for simple drug possession. Quite apart from the perceived injustice of this state of affairs, the issue is viewed as one of the contributing factors to the unwieldy caseload currently before the courts (at present more cases are being filed than resolved - which means the backlog of pending cases is constantly growing).

The commission has proposed 'depenalising' or 'decriminalising' certain offences - namely, those that can just as easily be addressed by civil, as opposed to criminal, tribunals.

Bonello acknowledges that revising Malta's drug laws would be a step in the right direction in this regard. "I don't want to give the impression that I'm in favour of drugs or anything like that, because I am not. But we do need to reconsider our current policy. Part of the problem is that for many years, popular perceptions about drugs were hysterical, and this prompted a political reaction. In a sense the legislature got carried away and started legislating to meet popular demand for tough sentences, rather than adopting a common-sense approach to the issue. Yet public opinion is not a very solid foundation to build laws on. If it were up to the general public to decide, we'd probably have the death penalty for a joint..."

The same principle extends beyond individual drug cases. Bonello argues that satisfying popular cravings for justice is not part of the law courts' job description.

"One immediate legislative change would be to distinguish between different drugs on the basis of their harmfulness. Personally I think we should also seriously consider substituting the present system, which often comes down like a million tonnes of bricks on minor drug-related offences, with a warning system for non-hardened personal users that does not involve the law courts at all. Not only will this be a fairer response to the crime, but it will relieve the courts of a lot of the pressure of unnecessary, time-consuming cases."