Presumed guilty

Rarely, do I lose my cool in Parliament. During the ongoing debate regarding certain amendments to the Criminal Code, however, I almost did.

While certain amendments being proposed are more than welcome, others are, to say the least, indeed baffling. The pity is that the government thought fit to propose a group of amendments in one bunch, making it impossible for the opposition to vote against the Act itself. This notwithstanding, in committee stage we will definitely register our opposition to three particular propositions being made and insist on a division.

Furthermore, the Labour Party is committing itself to withdraw these amendments within six months of being returned to power.

Today, I propose to dwell on article 11 of the Bill. Here, the Minister of Justice is purporting to turn the clock back and limit drastically the right to request bail promptly during an arraignment. I must, however, take the liberty to congratulate my parliamentary colleagues, Jason Azzopardi and Mario de Marco, who cautiously and well within party discipline, were audacious enough to express their reservations on that being proposed by the government in this sense.

In fact, in well-prepared speeches and quoting from extensive case law, both local and foreign, they did not refrain from telling the minister that to deny an accused person the right to request bail immediately runs counter to the fundamental principles of human rights.

In fact, I must state that I have often had occasion to express my point of view that over the years the quality of our parliamentarians and the general debate in Parliament has improved greatly. Parliamentarians from both sides of the House are today far more apt to make constructive criticism even against positions being taken by their respective parties. This attitude is, to say the least, healthy and conducive in no small way to stronger parliamentary democracy.

In Parliament I had the opportunity to remind Justice Minister Tonio Borg how differently he viewed certain basic juridical notions before he assumed his prominent seat in Cabinet. In the 1980s, Dr Borg, together with other lawyers, was renowned to be very keen in taking strong positions in defence of human rights, for this I lauded him in Parliament. On account of this, however, I was unhappily surprised by his attitude today. The government is proposing to limit the right to request bail for certain accused persons till the lapse of three months. Furthermore, such persons can only apply for bail before a judge in the Criminal Court, which court will only uphold the request for very grave and exceptional reasons.

Similar provisions already existed in our drug laws. Here, the accused could only ask for bail after the lapse of 20 days or after the evidence is compiled. This provision of law was declared as running counter to the provisions of the European Convention of human rights in a landmark judgment delivered by the Strasbourg Court. The Court decreed that though bail was not an automatic right, the person concerned should have an automatic right to apply for bail promptly during an arraignment.

Similarly, in the past, when persons were arraigned accused of serious offences which fell beyond the competence of the Magistrates' Court in their original jurisdiction, the accused would have to make a written application for bail. This application would have to be notified to the Attorney General who would be granted two days to respond. This procedure was also deemed by the Constitutional Court to violate human rights and was duly repealed. The reason behind this was that such a procedure denied the accused the right to have the issue of bail decided promptly.

What the government is proposing goes well beyond all this and, therefore, is totally contradictory to well established jurisprudence. My other parliamentary colleague, Joe Brincat, did well to declare he will immediately challenge the validity of this provision at the first opportunity that arises. I myself will surely follow suit.

Furthermore, from the substance of these amendments it appears only too obvious that the Minister of Justice has absolutely no confidence in magistrates. Why else would he insist for a request for bail to be made exclusively before the Criminal Court when practice and common sense always held that it is the presiding magistrate who is to decide such issues?

I dare say that after the promulgation of such provisions of law, the value of the stock and shares of our judicial system would have fallen drastically.

Dr Herrera, a lawyer by profession, is a Labour MP.