Guilty as charged: why Malta’s justice system needs to be redesigned from scratch

An independent commission tasked with reviewing the justice system to address systemic shortcomings has delivered a stunning verdict on Malta's third estate, finding the entire machinery of justice guilty of numerous administrative and structural failings, with results that have eroded public confidence in what is arguably the country's single most important national institution.

Among the more serious of the shortcomings identified in the 136-page report are a general lack of transparency and internal checks and balances; excessive bureaucracy and archaic work practices which contribute to unwieldy delays in the delivery of justice; a scarcity of human and other resources which has resulted in an unwieldy backlog of unresolved cases; and - most worrying of all - insufficient distance between the executive arm of government and the judiciary, which undermines the basic independence of the law courts and may even call into question their impartiality... especially in cases against the government.

Elsewhere, the same report is scathing about the system's apparent resistance to internal and external reform, noting how the entire code of laws is crying out for a major overhaul and that, with the exception of sporadic interventions here and there, successive administrations have continuously postponed and possibly even resisted important legal changes.

As a result - though this does not arise from a reading from the report itself - Malta is now under pressure from the European Commission to introduce a number of specific amendments, some of which involve changing the Constitution, as a matter of urgency.

Injudicious appointments

Significantly, the report practically opens with a stark admission that Malta's system of having judges appointed directly by the executive - in clear breach of the single most basic requirement of any democracy, the separation of powers - is unique among legal systems worldwide.

In examining other models, the report identifies four 'traditional' approaches to how judges and magistrates should be appointed: the Anglo-Saxon model, which involves screening of candidates by a specially appointed commission; the American model, whereby adjudicators are elected by ballot; the continental system, which involves individual candidates choosing a career in the judiciary and specialising in that direction; and finally, the "Maltese system" - which is simply that the Justice Minister picks and chooses whomever he or she likes  as either magistrate or judge.

This system, which the report notes was discontinued in the rest of the democratic world years ago, has been retained since Independence despite sporadic queries regarding the possibility of pro-government bias among the selected judges and magistrates.

Although the report does not make the connection explicitly, it has often been observed that cases involving the government tend to take much longer than other cases to reach closure: one prime example would be the ongoing litigation concerning the National Bank, originally instituted over 20 years ago.

Unsurprisingly, therefore, the very first recommendation to tackle delays in court proceedings concerns "cases brought against government".

No mention is made of the possibility of reluctance among government-appointed judges to rule against government in such cases, but the report does heavily emphasise the responsibility of the individual adjudicator to ensure that "procedures are not needlessly prolonged and that cases are expedited as demanded by article 6 of the European Convention of Human Rights".

To address the more immediate cause of unnecessary delay, the commission recommends empowering the Attorney General to represent all levels of government in such cases, thus cutting out the need to call up multiple witnesses, including Cabinet Ministers and heads of public service departments.

Separately, the report makes several recommendations which would radically alter the role and discretionary powers enjoyed by the AG: for instance it proposes altogether removing from the AG's remit the power to allocate cases to upper or lower courts, and with it the undue power on the part of the prosecution to extract guilty pleas under the threat of disproportionate sentences.

Other proposals involve a general reform to the system whereby corrections are effected to the original bill of indictment, among various amendments aimed at reducing the excessive bureaucracy underpinning the court system as a whole.

Excessive deferrals

At various points, the report stresses that timely justice is a human right guaranteed by the European convention. Failure to guarantee justice within an acceptable timeframe is therefore regarded as a human rights violation.

At one point, the commission assigns direct responsibility to individual judges for what it describes as a "bad habit" of repeatedly deferring sentencing to a future date. In some cases these multiple deferrals have the consequence of prolonging a single case for several years, even if no new evidence is presented to justify the delay.

The commission therefore recommends a maximum limit of six months for a sentence to be handed down in any given case; failure to comply with this time-limit should result in disciplinary procedures for the judge or magistrate concerned.

Elsewhere, the commission recommends a shortlist of high-precision surgical interventions to the Criminal Code itself, singling out the discretion allowed to the Attorney General to assign cases to the Magistrate's Court (a procedure which unnecessarily complicates and prolongs cases) as well as various amendments that would cut out much of the Byzantine bureaucracy inherited from pre-Independence days.

Decriminalistaion/depenalisation

Several of the individual proposals do not concern mere delays alone, but also rampant injustices inherent in both the law and the justice system as a whole.

Among the recommended reforms to the Criminal Code is the need to address "the inconsistency manifested by some verdicts and sentences, or other provisions that are applied against a person found guilty at law".

Separately, the commission observes that part of the reason for the immense backlog of unresolved cases - a backlog so large it would take eight years to scale down, even if no new cases were brought forward in the meantime - involves the sheer number of cases filed in the criminal courts when there is no real need to involve the judiciary at all.

Although no specific mention is made of drug legislation, the recommendations in this regard appear to closely echo a proposal made in 2010 by Dr George Grech, clinical director of the government's drug agency, Sedqa, to remove the threat of prison in the case of simple possession of soft drugs.

The commission views decriminalisation as a possible measure to lighten the caseload before the courts. As a rule of thumb, it suggests distinguishing between crimes which entail prison sentences and others which do not. In the former case, certain crimes which are currently assessed by the law courts may be 'depenalised' - that is, changed from criminal to administrative offences, which would then be adjudicated, at both first instance and appeal, by non-criminal tribunals.

The latter cases, on the other hand, could be decriminalised altogether: that is, removed entirely from the statue books so that they are no longer considered illegal.

The report points out that a judicious reassessment of the legal status of certain crimes may radically reduce the caseload in future and thereby increase the efficiency of the justice system. It recommends a review to determine which offences may be decriminalised and which depenalised.

Questionable court practices

Among the many concerns raised in this exhaustive breakdown of judicial issues is the 'flawed' use of suspended sentences by individual magistrates, as well as a tendency to apply completely different sentencing policies in cases where crimes are entirely comparable in the eyes of the wider public.

No examples are supplied in the report, but an allusion is made to media coverage and 'public derision' of such discrepancies - this newspaper has in fact catalogued a whole array of bizarre incompatibilities between sentences and the crimes they were meant to punish, including such anomalies as markedly lighter sentencing for domestic violence amounting to grievous bodily harm, relative to (for instance) drug-related offences or even cases of animal cruelty.

To address the widespread perception that the courts' sentencing policy depends largely on the identity of the judge or magistrate delivering the sentence, the report proposes setting up a Sentencing Policy Commission - to be headed by a judge and to include magistrates, criminologists, social workers, probation officers, etc. - to draw up precise parameters for a consistent sentencing policy which reflects the actual severity of the crimes committed.