José A. Herrera's contribution suggests he is upset by the fact that the government is taking a stand on accountability of court appointed experts.
He charges the government with having embarked on "subtle manoeuvres". He seems to detect covert "sinister undertones". The allegation is that "the Registrar of the Courts has decided arbitrarily to cap fees of court experts" and that therefore there is a hidden agenda.
There is no hidden agenda. The government has taken, is taking, and is duty bound to take, a fresh look at how the whole system at the law courts works. What had been acceptable or within the margin of tolerance in the past might not necessarily be so today. There is definitely nothing "suspicious" in the Administration carrying out its duty to put a stop to any bad practice. The government should not be restrained from monitoring the administration at the law courts and the disbursement of public monies.
Last year, court expert fees amounted to Lm284,713; up to the end of August Lm258,967 were disbursed. It would be an act of irresponsibility were the government to fail to monitor this expenditure. It is not in this government's style to stand back and do nothing, as my friend and colleague would seem to advise. Spending wisely has nothing to do with the independence of the judiciary.
The independence of the judiciary is not at stake here. This government holds fast to this principle.
This country has not adopted the system of ex-parte experts as the parties to a suit cannot bring forward as evidence their own experts' opinions. To be admissible as evidence the opinion of experts has to be submitted by the court expert. The law already provides in article 650(2) of our Criminal Code for the Minister of Justice to appoint panels of experts. The fact that the Minister of Justice appoints panels of experts is no more an infringement of the independence of the judiciary than the appointment of judges and magistrates by the Executive.
Contrary to what my friend implies, "court expert" does not mean the expert of that particular court, or that judge or magistrate. To my mind a court expert means a person who possesses the required qualification, ability, experience and honesty to give an unbiased learned opinion. He can therefore be appointed by the court according to law and within the discretion of the presiding judge or magistrate in all the halls of justice. The court expert takes on the mantle of independence and impartiality because he is not only the mere "expert", selected for the purpose of helping with the case of a party, but an officer of the court with the presumed seal of objectivity.
It seems that Dr Herrera has led himself into a sophism. Experts appointed by a presiding judge or magistrate must need to enjoy the trust of that court but that does not make them particular to that court. Most magistrates, though Dr Herrera doubts it, do not have any preferences. They appoint the persons who are known to be competent in their field of activity.
So what is really worrying Dr Herrera? Is it the possibility that with the implementation of what the law already contemplates in article 650(2) of our Criminal Code, the Minister of Justice would appoint panels of experts or is it something else which by its nature is so sinister as to warrant his intervention?
The establishment of these panels would not run counter to the independence of the judiciary. They could provide the judiciary with a wide choice without jeopardising any of the usual safeguards, such as the challenging and cross-examination of the court expert and if need be the appointment of other additional experts as further tools for establishing the truth.
What I found further annoying is that my friend and colleague seems to accept as justified that an expert refrains from performing his duties on the pretext that he would not be adequately paid. I beg to differ. Once an "expert" has accepted his brief he is in duty bound to perform the task and see it through. He should only abstain for serious reasons: those which would put in doubt his/her impartiality or his competence.
Appointment as court expert, when accepted, implies more, much more, than performing a "job". The ethics of the judiciary apply to its experts. Our courts can at any moment in time have credible experts. It is clearly in the interest of the community that the truth is sought, objectively, in every case but especially in a criminal trial.
Obviously, if the expert abandons his "expert" quest of the truth, only the guilty will benefit. When a court-appointed expert refuses to perform his duty, the community is running the risk of a miscarriage of justice. Either the wrong person is found guilty or alternatively the guilty is acquitted.
One final word: the law clearly protects the independence of the judiciary from the other organs of the state but the judiciary in applying the laws is also subject to (not independent of) the law. The rule of law applies to the courts too, indeed with some emphasis.
This government is in duty bound to propose to Parliament the necessary legal provisions it considers necessary in order to ensure that the system concerning court experts' appointments safeguards the proper administration of justice; that when competent experts are appointed they perform their task and that they are properly paid for it and that the public purse is protected from unnecessary and unwarranted expenditure.
Dr Mifsud Bonnici is Parliamentary Secretary at the Ministry of Justice and Home Affairs.