Intransigence can cause panic

Though the Minister of Justice does not have any direct control over the administration of justice per se, he does carry political accountability in ensuring the right legal framework for the smooth running of the courts. When things go wrong, and at the moment, as I shall explain, things definitely are going in that direction, the minister will have much to answer for.

I have had various occasions to reiterate that the present Justice Minister could, at times, find himself in a quandary due to the fact that he also retains the ministry for home affairs. At times, this state of affairs could give rise to a conflict of priorities which, occasionally, could lead to dire consequences. As we shall see, this, today, is proving to be all too apparent.

Way back, Parliament realised that the time had come to amend the Criminal Code in certain areas to align it with the way the concept of human rights was evolving in Europe. A case in point was the issue regarding the right to counsel before being interrogated by the police. Astonishingly, this notwithstanding, the government showed reluctance in bringing into force the said piece of legislation. The attitude taken was presumably due to the resistance being made by the police authorities as, after all, suggested by the minister himself.

Worse still, it must be noted that, notwithstanding the various judgments emanating from the European Court of Human Rights on the matter, the government, disturbingly so, still demonstrated intransigence in this respect. In the light of all this, and justifiably so, fearing a backlash, Labour MP Michael Falzon and myself presented a private member’s motion, pressurising the government into bringing into force the said law. In the meantime, certain Nationalist backbenchers, such as Franco Debono, duly intervened assiduously in the matter. Perhaps, if it were not for this scenario, the law would have remained in abeyance.

Finally, however, the law was implemented. The aforementioned delays would, nevertheless, cost the administration of justice dearly and give rise to severe repercussions.

Lately, the Constitutional Court had the occasion to justly affirm the right of legal counsel during the interrogation stage as a fundamental human right in three separate landmark judgments. These judgments, given in unity with the pronouncements of the Strasbourg Court, clarified the position in the sense that such an inherent right was always there and that, in those instances where such right had been denied, this concern would have compromised the trial. Undoubtedly, this is what had been troubling members of the legal profession all along.

Perceptibly, the consequences of these monumental judgments are colossal. In the aftermath of these judgments, and immediately so, we are beginning to experience the ripple effects. In case after case, this constitutional issue is accordingly being raised by the defence counsel, thereby bringing to a halt that particular judicial process. Rapidly, it seems that a substantial percentage of our criminal cases will be brought to a standstill. Furthermore, perhaps more worryingly so, persons already convicted and whose conviction would have mainly depended on a statement illegally obtained, would also start seeking judicial redress for having been subjected to an unfair trial. The momentous consequences of all this are manifest.

Undoubtedly and unfortunately, the minister, who was cautioned, must bear the political brunt. There have been occasions over the last few years where members of the legal profession would lament the minister’s overzealousness in implementing radical reforms in order to accommodate the prosecution. A number of such amendments would clearly appear to unbalance the principle of equality of arms in criminal trials. Regrettably, today, even on account of what has been said, there exist in our criminal legislation certain grey areas. These dubious areas of law lie on the fringes of what is constitutionally acceptable.

Hopefully, the government will learn from past mistakes and act beyond political exigencies. We must keep in mind that our commitments in the human rights sphere are not merely a form of lip service and, therefore, notwithstanding the difficulties or social impact, the government is in duty bound to affirm them or else suffer the consequences.

Dr Herrera is a Labour member of Parliament and spokesman on justice.