The call for a radical justice reform

In recent days, the Nationalist Party proposed a package of 10 legislative reforms. A number of these are drawn from the recommendations of the public inquiry into the murder of Daphne Caruana Galizia, which was held between December 2019 and July 2021 and which was largely and unscrupulously ignored by Robert Abela’s government.

The PN package makes sense. Yet these proposals fall far short of providing the common citizen with sufficient guarantees of an acceptable level of justice. I have long advocated in public circles proposals I consider necessary in the administration of justice. L

ong before we witnessed the altogether unsatisfactory situation in the administration of justice panning out during the trial of Yorgen Fenech. The public is owed justice reform. This is what I find missing in the PN proposed package:

A root-and-branch reform of the trial by jury 

The current trial by jury provisions are substantially those inherited from the British 200 years ago.

The British have long reformed it to cope with new exigencies and advances in technology and forensic methods.

The Maltese have slept on it. Our politicians have to date been bent on ensuring that nothing changes, with the result that today we have a trial by jury system that is inadequate to deal with today’s circumstances

Each time a major jury delivers a verdict that a substantial part of the popular opinion did not expect, there is a major outcry. Remember the aftermath of the Richard Caruana Cachia jury in 2004 when Ian Farrugia was acquitted. And we see it unravelling again now in the immediate aftermath of the Daphne Caruana Galizia jury.

The law needs to be updated. One glaring failing, that of having nine untrained people determine the guilt or otherwise of the accused, with all the potential dangers of undue influence for the untrained, calls out for immediate reform whereby at least one, or perhaps even better three, judges hear and adjudge a jury, a system similar to that in many continental countries.

The removal of the duplicitous procedure of the compilation of evidence

Again, the British introduced this into our legislative corpus. Except that the British repealed it long ago. I know of no other jurisdiction in Europe where it exists. Nor in the US, Canada or Australia.

Our compilation of evidence stage is in theory meant to preserve evidence, but in reality it does anything except that. The testimony needs to be re-enacted many years later, with the intervening adverse consequences as a result of change in legislation, the inevitable loss of memory of details of witnesses, ensuing undue influence of witnesses in the intervening period, passing away of key witnesses and investigators, resigned police investigators giving evidence without reference to their files, stolen or lost pieces of evidence in custody of the court registry.

This compilation of evidence stage is serving no useful purpose other than to cause a delay of long years until trials take place. Indeed, the trial by jury in the Caruana Galizia case, nine years after the murder, is relatively quick by Maltese standards. The Sion Grech murder trial took place in January 2023, 18 years after the murder occurred and 10 years after the police arraigned the accused.A Ponzi-style fraud case involving the disappearance of hundreds of people’s life savings invested with Maltese Cross Financial Services in 2014 has still not been given a trial date, 12 years after the case began.For comparison, in the US, Bernard Madoff’s US$65 billion Ponzi fraud, spread across continents, took only five years to investigate, unravel, and bring to an end criminal proceedings from when it was first discovered in 2009.

Introduce a tariff for professional fees applicable to criminal lawyers

In the civil court, where hundreds of practising lawyers toil and sweat in the pursuit of concluding their clients’ civil cases, there is an established tariff for calculating lawyers’ fees which are duly paid complete with VAT and visible and transparent to the Inland Revenue in terms of earnings by the practitioners.

In the criminal field, it is a free for all, open to negotiation, with no limits, a similar phenomenon of legalised usury with high interest rates substituted for professional fees. The anecdotal evidence is that top-tier penal lawyers’ fees are not in the thousands, nor tens of thousands, but hundreds of thousands, although millions by way of prize money have been mentioned as well.

This is confirmed by the evidence during the Caruana Galizia trial and the mention of Fenech assisting in the payment of defence lawyers.

The family of Sion Grech did not manage to find a single lawyer to represent the victim’s family as parte civile. Not unless they came up with an €80,000 deposit, which they could not afford.

I address the PN leader:  justice must be available at the grassroots.  We should no longer perpetuate a system that fleeces common citizens dry over many years. Your Shadow Minister ought to have sensitised you on this, as should have the speakers of the public conference the Party organised on the day after the publication of your proposals.

Constitutional provisions covering the Commission for the Administration of Justice must be tightened

The Commission, led by the President of the Republic, is charged with investigating issues surrounding the judiciary, but is not obliged to do so. Tightened legislation must ensure that any such case is investigated immediately and that measures are taken.

Dead silence from the magistrate involved. From the Commission for the Administration of Justice. From the anachronistically named Camera degli Avvocati. From the Minister of Justice. And indeed silence also from the Opposition Leader and the Shadow Minister.

A constitutional change on the appointment of the Police Commissioner

Such an appointment should require a two-thirds majority, similar to the appointment of the Chief Justice, the Ombudsman, and the NAO Commissioner.

There can never be a really impartial and independent and exhaustive investigation of crimes and prosecution of criminals, without fear or favour, unless the Police Commissioner has security of tenure and does not owe his continuance in his post to the Prime Minister’s whim.

Robert Abela, have some courage. Give the nation that has entrusted you once more with its leadership and do something really beneficial for the people. Otherwise, your often-repeated call to trust the institutions is nothing more than hollow, sarcastic, and offensive.

It is good that the Nationalist Party is sensing the urgency required in the reform of the manner in which justice is administered. Indeed, the PN ought to have made the reform of justice the bedrock and central theme of its electoral campaign earlier this year rather than indulging in unsustainable promises of financial freebies to the electorate, a strategy that the PN could never win against a party in government that excels in being populist.

The proposals I add are meant to make justice reforms real and meaningful at the common citizen’s level. Successive Maltese governments since Independence, whether blue or red, have had all the time in the world to radically reform the Criminal Code. But our Parliaments, dominated as they have always been by the legal profession, have effectively ensured that everything remains the same.

Instead we have had piece meal changes to our justice legislation. Malta deserves a holistic reform addressing all that has been left to rust and rot, in the hope that we and our children can enjoy one of the most essential elements in a democratic society: a true and just administration of justice, without fear or favour, that ensures the law is really equal for all.