Owen Bonnici

One of the trademarks of a democracy that is self-respecting, is the presence of a strong and independent judiciary, that is free to express itself with respect to the executive and the legislative branches of the country.

The speech by the Chief Justice, inaugurating the forensic year, in fact embodied the democratic principles of independence of the judiciary and freedom of expression, while at the same time exemplified how the judiciary can interact with the executive in order to safeguard and uphold the rule of law.

I heard with interest what the Chief Justice had to say about all the good work and positive results we are delivering together in the justice sector. To my mind it was one of the most positive assessments delivered by the judiciary in recent years.

But let me first address the matter in question. Towards the end of his speech, the Chief Justice advised against the propagating of a culture in which people who do not observe the law are indirectly rewarded through amnesties.

One can genuinely understand his views, particularly given his background as one of Malta’s finest prosecutors. I believe that in certain cases, well-thought-out amnesty schemes, constructed on objective and transparent criteria, have their own positive aspects. Successive governments have, from time to time, announced amnesties. The areas which have proved most fertile for such schemes to be effective are, in fact, where irregularities are likely to go unreported without some incentive to regularise one’s position. Amnesties have in fact been used by governments of different political creed in fields such as tax, planning, irregular possession of certain objects such as objects requiring a licence or a registration (including in one case cultural property), and even in the field of arms possession in an effort to reduce the number of unregistered weapons in circulation.

The observation of the Chief Justice still reflects the ability of the judiciary to exercise their powers over the executive, in the complex system of checks and balances that is a hallmark of true democracy.

Yet, what unfortunately did not hit the headlines were the Chief Justice’s references to key reforms and legislation that contributed to an improvement in the efficiency of the justice system over this past forensic year. Notably the landmark Act XLIV Constitutional Reforms (Justice Sector) Act, 2016, that for the first time in the legal history of our country, upheld the separation of powers between the executive and the judiciary through a new system of judicial appointments, enhanced the accountability of the judiciary as a result of the extension of disciplinary proceedings in case of breach of ethics, and honoured the service provided by the judiciary.

The observation still reflects the ability of the judiciary to exercise their powers over the executive

On equal lines, the Chief Justice applauded the amendments to the civil procedure enacted by Act IV of 2016, and urged lawyers to make full use of the new amendments that will permit a more efficient system at the service of all those in contact with the justice system.

Apart from the new regulations related to the service of documents mentioned by the Chief Justice, there has also been an increase in competence of the Small Claims Tribunal and the Court of Magistrates, Civil Jurisdiction, with both courts now being able to preside over cases whose claims are of a higher value. Additionally, Act IV also addressed matters relating to the pleas of jurisdiction whereby now, the courts presented with a case that falls outside of their jurisdiction, can simply refer the case to the appropriate court.

The savings of time and cost to the parties of this legislative amendment cannot be understated, and its full beneficial value can only be fully comprehended when compared to the previous system whereby such cases were dismissed and new procedures initiated in front of the competent court.

The Chief Justice highlighted further initiatives during his inaugural speech: the increase of support staff such as the introduction of the court attorneys and the efforts addressed at increasing the number of judiciary appointed to the bench.

These legislative and human resource improvements, together with a number of ICT initiatives, are translating into increased levels of efficiency in both the civil and criminal courts.

Owen Bonnici is the Minister for Justice.

Malcolm Mifsud

When the government interferes directly to block the prosecution of individuals or a class or group of individuals, then yes this is worrying. Our society is based on the rule of law, where people living in our society know that if they break the law there will be consequences and should expect a punishment. When the government introduces such a policing or prosecution policy, the Chief Justice in his address at the opening of the forensic year was correct to say that such amnesties rewarded those who wronged society and frustrated law-abiding citizens.

This government’s first days in power following the 2013 elections were marred by a general amnesty of a 100 days reduction of all prison sentences. The then Interior Minister, Manuel Mallia visited prison and was given a hero’s welcome by the inmates, not because he introduced prison reforms or schemes to find employment after prison, but simply because he gave this reduction in their prison term. This amnesty was given because a normal democratic process had taken place: one political party was elected into government instead of another.

Should this simple democratic process equate to reduction in prison sentences, some of which are for very serious crimes?

By means of an amnesty the small and large contraventions of the law are treated equally, when in fact they should not

This government found itself in unpopular hot waters with sections of the electorate, after it vouched that it would wage a war against those who tampered with the electricity supply, only to find that the practice was more widespread than thought and closer to home. The solution it found was to give a general amnesty by blocking prosecution and reducing the penalty to 10  per cent.  This was an insult to much of the consumers who paid their electricity bills, even during tough times. The message was that crime does in fact pay.

We have experienced further amnesties on illegal structures. Instead of investigating whether a property owner inadvertently did not adhere to the planning laws on small matters, the government now has the power to sanction illegal structures, even though they were intentionally built in that way. Does this not give the idea to all and sundry that there are those who can do what they want?

As a man of the law, the Chief Justice, recognised that this will come back to haunt our society, when those who abide by the law will be encouraged to no longer abide by it, because there was an easy way out. As politicians, such a situation cannot be condoned or encouraged by political expediency. The politicians must also ensure that the rule of law reigns supreme.

The government seems to still have to learn that amnesties are not administrative tools, but a direct interference in the judicial process, which may be easily abused of. In simple terms the examples of the use of amnesties in the past three years have been an abuse of power. They are popular with those directly affected but they do nothing for society as a whole. This government is driven by votes instead of good governance.

The alternative to amnesty does not necessary mean a tough and soulless prosecution of all. The law must be applied differently according to the individual cases. For small contraventions, then the law must be applied as such; however, when there are serious and severe contraventions of the law, the authorities should not let them off the hook lightly.

By means of an amnesty the small and large contraventions of the law are treated equally, when in fact they should not. The rule of law provides for such differences in treatment.

I believe that the use of amnesties should be in exceptional and grave circumstances and must be intended to enhance the rule of law and not dwarf it.

Malcolm Mifsud is a lawyer.

If you would like to put any questions to the two parties in Parliament send an e-mail marked clearly Question Time to editor@timesofmalta.com.

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