I noted with interest that, lately, there were various contributions criticising certain aspects of the criminal process. Those columnists with a legal background have indeed taken the occasion to argue that over the last few years many were the amendments introduced that might have disrupted to a certain degree the principle of the equality of arms in the criminal field. Could it be that the scales of justice are no longer so balanced?
Once returned to government, the freshly-anointed Prime Minister had declared that this time around he would be appointing a "mini-Cabinet". Consequently, nowadays we have the smallest Cabinet since Independence where-in practically every minister is responsible for at least two different ministries. So far so good and I do not purport to dwell on the pros and cons of the Prime Minister's strategy. It must be emphasised, after all, that the selection of government ministers is his sole prerogative. On the other hand, being responsible for justice from the opposition benches I do wish to make certain remarks with regard to the portfolio assigned to my counterpart, the Minister of Justice and Home Affairs, and this without in any way demeaning his general performance.
I have already gone on record as stating that I feel that, in handling these two different portfolios, the minister can, at times, find himself in a quandary and face conflicts of interest. In fact, contrary to what has been stated, the first impression we get is that the two ministries could in fact be intimately connected if not overlapping. However, nothing can be further from the truth.
The Minister of Home Affairs is primarily responsible for the Police Force and internal security. As Minister of Justice, on the other hand, he is politically responsible for the general administration of justice and the courts. At times, as I will point out, it would prove difficult to reconcile the priorities of these two important sectors of public administration.
The main concern of the executive police is to deal with investigations and the attainment of convictions. Thus, the drive of any Home Affairs Minister would certainly be to strengthen the legal apparatus guarantying more success to the police in these spheres.
The main direction of the Minister of Justice emanates from a different perspective and should always be towards the strengthening of judicial procedure in order to strike a fine balance between the need of having strong prosecutions and of allowing for a sound defence. At times, this balance is not easily met.
Many were the amendments promulgated with regard to criminal procedure which, to my mind, were prompted solely from the point of view of a Minister of Home Affairs, perhaps with little concern as to whether this could adversely affect the necessary safeguards that should be available for the defence in a trial. The typical example would surely be the minister's original reluctance to implement the necessary change guaranteeing a person under investigation the right of access to his legal council. The minister has gone on record saying that this reform to him was somewhat premature because, primarily, he needed to strengthen the Police Force. Undoubtedly, a minister responsible exclusively for justice would never have come out with such arguments.
Other reforms, perhaps, hint at the same thing, though not in such an evident manner. The introduction of the law of inference, for example, with regard to statements by an accused person without a law guaranteeing full disclosure to the defence, comes to my mind. Most criminal lawyers will argue that the implementation of such a law without the above-mentioned safeguard could indeed be interpreted as being anti-constitutional because it would expose-suspects to undue incrimination. For a Minister of Home Affairs, this might not appear too preoccupying because it could assure more convictions, thereby strengthening the image of the Police Force as a whole.
In Malta, furthermore, we will find that we are probably the only Western country wherein court orders regarding the granting of bail can be appealed, and this when the accused would not have infringed any of the bail conditions imposed. Surely, the Police Force would, over the last years, have lamented with the minister concerned about a supposedly too-liberal attitude being taken by the Magistrates' Court in this regard. To my mind, this is another amendment intended to accommodate the executive police and nothing else.
A traditional line of defence has always been the principle that the evidence of an accomplice, which has always been regarded as unsafe, should always be duly corroborated by other independent evidence. The removal of this legal principle has obviously facilitated police investigations a great deal. These, at times, do not feel the necessity of delving deeper into certain investigations. There are instances where, for the investigating officer, once an accomplice admits then the investigations can stop there. It is always good to strengthen investigations but never to the detriment of a less assiduous approach, which attitude can lead to unwarranted convictions. The list goes on.
Lately in Parliament, I also had occasion to stress the necessity of redefining the role of the Attorney General, even in the light of the above, but my observations are perhaps pleasures yet to come and would be dealt with in some future contribution.
At times, political expedience could have adverse repercussions, thereby naturally leading to dissenting voices.
Dr Herrera is a Labour member of Parliament.