It is not the first time that I’ve gone on record reiterating that it appears far from appropriate that the Justice Ministry should be amalgamated with the Ministry of Home Affairs. Nor have I been the only one to do so. As a matter of interest, it must be pointed out that one of the 20 points raised in the private motion of government MP Franco Debono, dealing with justice, tackles this particular issue.

...there is a real danger that the practice of plea bargaining before the inferior courts will disintegrate...- Josè Herrera

In truth, there have been occasions when this present arrangement has given rise to conflicting priorities as I already had occasion to point out in a previous contribution.

I read with interest a similar critique made by my colleague, Edward Zammit Lewis. This contributor took the opportunity to refer to the concern that arose in North Rhine Westphalia, Germany. In 1998, there was an attempt to merge the ministries of justice and home affairs. The Federal Constitutional Court, however, ruled that “the establishment of an independent ministry of justice has its roots in the ends of absolutism, when dispensation of justice gained recognition as an independent function of state (...) Hence, the separation of the ministry of justice from the interior is based on an established tradition in terms of constitutional policies and constitutional law”.

Such separation between the two ministries is the general practice throughout the entire European Union.

At times, the minister’s reluctance to expeditiously implement certain reforms in our penal code must surely be attributed to the conflict and quandary the minister must find himself in.

To my mind, a case in point is the issue of plea bargaining. There was a time when those involved in state prosecutions opposed the introduction of this judicial notion. As a result, as we shall see, in order to meet and accommodate both worlds, that is, members of the legal circle who were in favour and those hailing from the police force who were against, the minister compromised.

It must be pointed out that the institute of plea bargaining was only introduced in our penal code by Act III of 2002, notwithstanding the fact that the practice had long been going on informally since time immemorial.

The amendment was introduced after much debate and recommendation from various sectors. Surprisingly, however, the amendment that was finally promulgated was made to apply only to proceedings before the Criminal Court. The law, unfortunately, does not extend to the Magistrates’ Court and this notwithstanding the fact that the vast majority of criminal cases are dealt with summarily by the inferior courts.

Again, it must be stressed that, this notwithstanding, it has long been the practice to allow plea bargaining even before the Magistrates’ Court and, surely, the vast majority of cases have similarly been dispensed with.

Experience has shown us that this has in no way affected negatively the quality of justice being meted out. It has also proved to be very beneficial to the administration of justice because it helps diminish the judicial backlog a great deal.

Unfortunately, however, not all magistrates are taking the same approach. There are a number of magistrates who refuse outright to consider plea bargaining and this is leading to serious repercussions in the administration of justice on account of the uncertainty and inconsistency that is manifesting itself in judicial procedure.

The Criminal Court of Appeal did make an attempt when faced with this grave lacuna in the law to rectify the situation once and for all. In a landmark judgement in the names The Police vs Mario Spagnol on January 6, 2005, the court affirmed quite explicitly that plea bargaining or sentencing bargaining was acceptable even before the Court of Magistrates.

The court then went on to define a more formal and solemn method to be followed in such instances.

For a time it seemed that this pressing matter had been resolved and things moved on in the right direction. Unfortunately, nowadays, there are members of the judiciary who still inexplicably refuse to embrace the practical equation evolved by the Criminal Court of Appeal.

Once more, there is a real danger that the practice of plea bargaining before the inferior courts will disintegrate giving rise to dire consequences leading to a substantial increase in the caseload and cause unwarranted delays that might prove to be unsustainable.

In the light of the above, the minister is urged to take note and initiate the necessary overdue legislation.

Dr Herrera is shadow justice minister.