In the aftermath of the David Gatt case, the Nationalist Party took the opportunity to criticise both the Leader of the Opposition and myself due to our response to certain remarks made by the Justice Minister. The minister said the ruling by the Constitutional Court dealing with the concepts of fair trial in a suit filed by Dr Gatt was a mere technicality. Our comments were merely in the sense that issues regarding fundamental human rights such as the notion of a fair trial could never be regarded as issues of minor importance or relevance. We absolutely refrained from entering into the merits of the case and, thus, the criticism levelled at us was totally unfounded and opportunistic.
The importance of a fair trial was lately affirmed by the Consultative Council of the European Judges in a document released on November 17. This resolution is being referred to as the magna carta of judges and has made me reflect on instances regarding other recent occurrences of executive pronouncements on the workings of the judiciary. I feel it opportune to quote from the relative text.
“In the exercise of their function to administer justice, judges shall not be subject to any order or instruction or to any hierarchical pressure and shall only be bound by law.”
The latest remarks made by the Justice Minister regarding the granting of bail in a particular case gave rise to a backlash from prominent members of the legal profession and this as expected. Here, the said minister felt it within his domain to severely censor the particular magistrate and declare his intent in introducing legislation to severely circumvent the granting of bail in certain instances, especially with regard to relapsers.
From a political perspective, the minister’s utterances can be understandable. Undoubtedly, this particular case did give rise to a hue and cry. Politicians, of necessity, must be receptive to the general feelings of society they represent and are accountable to. On the other hand, however, ministers must behave according to what is deemed politically correct and, in this sense, keep as much as possible to the accepted dictates and norms in a democracy centered on the rule of law. Such utterances could indeed be interpreted as a form of hierarchical pressure on the particular magistrate.
The cardinal principle behind all that has been stated is surely the notion of the separation of powers within a state. Therefore, it is far from prudent for the executive to pronounce itself on the merits or otherwise of a pending case. From a juridical perspective, such remarks could easily surmount to undue interference. It must be admitted, however, that, at times, ministers do find themselves in a straight jacket. On the one side, certain state of affairs, instinctively, do provoke certain reactions.
The government is, after all, in duty bound to respond sternly in order to combat criminality and, notwithstanding all that has been said, must appear firm and steadfast in this regard.
The minister, however, as we shall see, is in a particular delicate situation, being responsible both for justice and, at the same time, home affairs.
I have had occasion to lament the difficulties such a role can entail and this owing to the fact there are moments when the priorities of the two important ministries can appear to be conflicting.
The minister, in this dual role, has to accommodate wholeheartedly the drive of the executive police in bringing criminals to book while, at the same instance, as Minister of Justice he must affirm the necessity of the due process in criminal trials. Every now and then, the two priorities do not correspond so comfortably.
Here again, with regard to bail, a fine balance has definitely to be struck. On the one hand, it is suitable to argue from a political angle legislation should be such to curtail our judiciary from being far too lax in the granting of bail, especially with regard to renowned hardcore criminals when facing trial for particularly heinous crimes. On the other hand, it must be recalled that both the Constitution and the European Convention on Human Rights, which we firmly adhere to, like it or not, emphasise the presumption of innocence and the consequential right to bail pending trial.
From a different viewpoint, it is fit to mention we have experienced too many instances where people denied bail, even for unacceptable long periods of time, were finally acquitted. Such individuals would have suffered severe prejudice and injustice and, to date, are provided with no legal remedy to address their distress.
Penal reforms are undoubtedly warranted. It could be argued that foremost among such amendments would be those aimed at truly granting a speedy trial, especially with regard to those individuals who would be held in preventative custody.
If the minister involved feels so strongly against the granting of bail he must, at least, provide the necessary legal framework ensuring trials are conducted within a reasonable time.
On a final note, it must be emphasised that mistakes are occasionally made and this not only by the judicial organ of the state, since to err is only human. However, the odd mistake should not mean we should radically overhaul our judicial system. Such drastic measures made hastily on the spur of the moment could well prove to be counterproductive at the end.
Dr Herrera is a Labour member of Parliament.