Beyond depenalisation

Iwas not in the least surprised to read the findings of the internal report compiled by the local councils on the prevailing situation of unpaid contraventions. Worryingly, the value of such unpaid contraventions has reached the staggering amount of €11,367,837. I don't want to sound presumptuous, but the phrase "I told you so" comes to my mind.

In the mid-1980s, the idea of introducing tribunals outside the ambit of the judiciary had been mooted. It was felt, and perhaps rightly so, that the Magistrates' Court was overburdened with too big a workload. It was therefore suggested that petty criminal offences should be removed from the ordinary jurisdiction of the courts to be decided by specially-appointed adjudicators. At first, the genre of such cases was to be of an extremely minimal consequence, to be determined by lay adjudicators.

Curiously, while certain cases were being farmed out to these lay tribunals, the jurisdiction of the Magistrates' Court was at the same time extended to deal with cases contemplating punishments of up to 10 years' imprisonment when, originally, their competence did not go beyond cases carrying the maximum of two years' imprisonment. Thus, again, in the light of these developments, our courts found themselves overburdened and overstretched.

This development, of necessity, led to a process whereby more categories of contraventions were handed over to the so-called Commissioners of Justice. This, in turn, led to more complexity in the nature of the work being handled by these tribunals. The original law was revamped and, nowadays, it is only members of the legal profession who can hold such office. This reform, however, has led to serious juridical considerations of a constitutional nature.

According to our Constitution, the judicial organ of state is composed solely of judges and magistrates. These are endowed with all the necessary safeguards that guarantee their independence and impartiality. Commissioners of Justice do not feature in this equation and, therefore, their legitimacy has been put in doubt. To overcome this inherent problem, the concept of depenalisation was put forward. It is now an accepted juridical notion that Commissioners of Justice can deal only with depenalised offences. In fact, what this means is that these tribunals are not endowed with the authority of handing down custodial sentences or holding people in contempt.

I have had occasion to warn, time and time again, that unless radical amendments were made to the institution of the Commissioners of Justice there would be a backlash. In practical terms, Commissioners of Justice, unlike the courts, are, to say the least, limited in their powers of enforcing their judgements.

In the case of the ordinary courts, failure to pay a fine could lead to a custodial sentence in the sense that the fine could be commuted to a prison term. In practice, more often than not, this serves as the ultimate deterrent, compelling the vast majority of offenders to pay their fines and adhere to court rulings.

On the contrary, before the Commissioners of Justice, offenders can practically omit to pay their fines with impunity. Here, the only effective way of coercing people to pay their dues seems to be in relation to traffic offences because failure to pay one's fines will preclude the person involved from having his driving licence revewed. Even here, however, a large percentage of offenders happen to be persons who simply ignore the law and keep on driving without a licence.

With regard to other offences, there seems to be no other efficacious manner to entice people to pay their fines because it is hardly worth the while for local councils or the government to resort to costly civil action in order to recuperate petty fines.

In analysing all this, it becomes only too apparent that there is something seriously wrong in the system and that, unless something radical is done, the Commissioners of Justice will be rendered totally redundant and this to the detriment of law-abiding citizens and the state.

To my mind, therefore, all this leaves the state only one of two options. The government can either rethink the role of these tribunals and severely restrict their competence or take a radically new approach and push the Commissioners of Justice one step forward.

Elsewhere, a system akin to our Commissioners of Justice has existed for donkey's years. In these countries, however, such adjudicators are regarded as junior magistrates, forming part of the judiciary, albeit at the lowest level. In this respect, for example, we see that the Justices of the Peace in England are, in fact, considered as junior magistrates, forming part of the judiciary, also endowed with limited powers of imposing custodial sentences, rendering them far more effective than their counterparts in Malta.

To follow the UK module, however, constitutional reforms are warranted. In light if what has been said above, such reform would be welcome indeed. Such amendments would redefine our judicial hierarchy and, in the same instance, would legitimately extend the authority of our Commissioners of Justice, who would eventually be regarded as junior magistrates, empowered with all the judicial authority necessary for the implementation of their decisions.

Dr Herrera is a Labour member of Parliament.