Opposition backs Debono's motion on justice, home affairs

The Opposition spokesman for justice, Jose' Herrera, said this evening that the Opposition backed Franco Debono's private motion for reforms in justice and home affairs.

The motion started being debated last week after having been seconded by Nationalist MP Joe Falzon. It was presented in November.

Dr Herrera said that while the Opposition might not agree fully with all the 24 points made in the motion, it agreed with most of them since they were common to the motion which the Opposition itself had debated.

Dr Herrera was speaking after Dr Debono concluded his introduction to the debate on his motion in a speech which took almost three sittings.

In today's sitting, Dr Debono reiterated his call for a Drugs Court and an updating of the laws on prohibited drugs. He said the provisions regarding possession and cultivation needed to be reviewed and said that in all cases, the penalty should fit the crime.

A very worrying aspect, he said, was how the Attorney General had discretion to decide whether an accused person should appear before a magistrate or a judge, with huge differences in the sentence which could imposed. There was no law to direct the AG. His discretion was absolute, and he was not even required to motivate his decisions.

He agreed that the Attorney General should have an element of discretion, but within guidelines and a requirement to explain his decision, which may be contested.

Dr Debono said he disagreed with a proposed mechanism that would introduce a system of warnings by the AG for first offenders. This only amounted to more discretion, and pressures, on the AG.

There should be a unified system, which included rehabilitation and other conditions which a court may impose on first offenders.

The Nationalist MP said he also disagreed with amendments to the Criminal Law proposed by then minister Carm Mifsud Bonnici about raising the penalties for prostitution. These would be useless and only serve to push this underground, with consequences on issues such as disease. What were needed were measures to prevent white slave trafficking and exploitation.

In other points, Dr Debono said that except for issues of national security, ministers should not be involved in the authorization of warrants for interception of communication, and that role should be assumed by the courts.

He reiterated his call for higher penalties for malicious libel which harmed people's reputations, while saying that criminal libel should be removed.

Dr Debono said he welcomed plans by Justice Minister Chris Said to amalgamate the Law Reform Commission with the Committee for the Consolidation of Laws and said it was important that the new structure was adequately resourced.

He reiterated his calls for the setting up of a Supreme Court as the third grade of scrutiny, possibly on the Italian model. The jury system should also be fine tuned, with some training and preparation for jurors and said one should consider whether judges should start deliberating with the jurors.

Concluding, Dr Debono said this was not a motion of no confidence but a positive motion with a wealth of suggestions which should have been debated before the Opposition's motion on justice and home affairs. Certainly, Dr Debono said, this motion should have been debated before ministerial responsibilities for justice and home affairs were split in January.

SEPARATION OF ROLES

At the beginning of his speech, Dr Herrera said he agreed that there should be a separation of the role of inquiring magistrates and magistrates who sat in judgement. Inquiring magistrates had an investigative role while magistrates who sat in judgement had to base their decisions solely on what they heard in court. The two roles were incompatible.

What was certainly needed were specialised inquiring magistrates with powers to act ex-officio and backed by a support structure.

Dr Herrera said that he would admit that in the 1970s and 1980s there was undue interference by the justice minister in the assignment of cases. He agreed that cases should be assigned by the Chief Justice.

However one should be careful that the Chief Justice was not given many other roles which required him to liaise with the Minister of Justice.  The Chief Justice was not there to issue by-laws or to decide, for example, how the Family Court building should be built. There should be clear water between the executive and the judiciary. Pure administration should not be in the hands of the Chief Justice. 

Dr Herrera said he agreed that after years of delay, the law on legal assistance to arrested persons was drawn up quickly and in a panic and it now needed to be revised in order to bring it in line with European requirements.

Dr Herrera said he had been insisting for four years that the role of the Attorney General needed to be defined.

He could decide if a person went for trial, he drafted the laws, he represented the government in court. Some, like Edgar Mizzi, were the prime minister's right hand man.  The autonomy of the Attorney General's Office needed to be strengthened while the various roles were re-examined.

Dr Herrera said an area that needed urgent reform was the Institute of Legal Aid for those who could not afford a lawyer. The people should have a wider choice of lawyers in the criminal sector, but the tariffs paid to the lawyers also needed to be improved.

ACCOUNTABILITY OF JUDGES

The Labour MP also spoke on the accountability of the members of the judiciary. He said that in modern society there were no sacred cows. Everyone was accountable to someone. Judges had to be answerable to someone.

Malta had the Commission for the Administration of Justice to oversee the judiciary but a judge could be disciplined only in very serious cases, where the commission could recommend impeachment. However in less serious cases - such as low turnover of work - the commission was powerless to impose discipline.

Of course, this did not mean interference in the judicial process.

With regard to the call for a Drugs Court, Dr Herrera said that what was especially needed was an updating and consolidation of the drugs laws and a new attitude for first offenders who may have offended years ago but who now did not deserve to be jailed, once they were reforming themselves.

A Drugs Court was needed, but there should also be a rescheduling of the drugs. Some drugs were more harmful than others. Some medicines were more harmful than, say cannabis.

Dr Herrera said there was no doubt that a structure was needed on how warrants were issued for the interception of communications. Clearly, there was a need for a law to deter abuse by a government or anyone else by using the Security Service to spy on rivals - although he was not saying that this was taking place in Malta.