Ruling the rule of law - Michela Spiteri
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Ruling the rule of law - Michela Spiteri

Fact. I’ve been writing this column for just over 11 years. That’s nearly 300 articles. Some, I suppose, have ‘made waves’, others perhaps have sunk under them; but the one or two with real impact are the ones that matter most. Nothing is more rewarding than an article which reads the moment rightly. 

My first recollection of this happening to me was in June 2013. I had written on the subject of arrest and how matters stood with regard to Maltese law, slamming in particular the sham ‘reform’ of 2010 which granted persons under arrest the right to consult a lawyer up to one hour before interrogation.

My view was that this ‘access’ was seriously flawed and I concluded that no one in custody, under any circumstances, should ever dial for a lawyer. Such a ‘right’, I felt, was a mere legal mirage. 

I then went on to argue that the status quo ante – i.e. the legal assistance wasteland prior to 2010 – was arguably safer and superior in the long run. The article in question – ‘Arrested? (Don’t) Dial a Lawyer’ – caused quite a stir in the media and received the full endorsement of then Parliamentary Secretary for Justice, Owen Bonnici. 

You see, having no right to any legal assistance was, in one sense, a constitutional point in your favour:  you could then successfully invoke a human rights violation and, if necessary, take your case all the way to Europe and ‘win’ it hands down.

And yet victory in that arena would be pyrrhic. There’d be the huge financial strain for one thing (‘justice’ being one of life’s expensive luxuries); and besides, winning a case before the European Court of Human Rights (ECHR) takes time and perseverance. That’s time which is invariably spent serving a sentence inside a prison cell that you are effectively contesting; and of course your earning power is nil because you’re not released on bail. Catch-22s everywhere.

Besides, by the time you’ve gone through all the legal hoops and with luck won your case, the chances are you will have completed your prison sentence anyway. But the bottom line is that no amount of financial compensation will ever make good the time you spent wrongfully incarcerated.

To be European means to enjoy equal access to rights, remedies and freedoms

That long overdue ‘reform’ in 2010 was indeed a long time coming, having been unanimously approved by Parliament as far back as 2002. For some reason it took eight years for the legal notice to see the light of day, and when it did, as I already mentioned, it was simply tokenistic and hugely wanting – a case of far too little, far too late.

The plain fact is that any attempt at reforming criminal justice must be comprehensive. No half measures, in other words. Otherwise an ass is made of the law and more problems are created than solved.   

Which is exactly what happened in 2010.  By 2011 our Constitutional Courts were up to speed with ECHR case law and had come to terms with the fact that our law’s failure to provide legal assistance at the pre-trial stage constituted a human rights violation. In fact, in no fewer than three consecutive cases our Constitutional Court consistently upheld this view.

All changed when, quite out of the blue, our court changed its tune and restricted its 2011 interpretation, essentially overruling (without any plausible explanation) a long-standing tradition of human rights protection. 

My dissenting voice is not alone here. There’s the historic Borg vs Malta 2016 judgment for one thing, whose scathing conclusion enshrines a very fundamental home truth: that if our national courts are allowed to depart arbitrarily from European case-law, such ‘discretionary manipulation’ might all too easily lead to a distorted system whereby governments take on board convenient judgments and ignore inconvenient ones. To be European means to enjoy equal access to rights, remedies and freedoms. 

Today, since the transposition of Directive 2013/48/EU into our law, access to a lawyer while in detention begins from the very moment you are detained. You also have the right to be furnished with a list of advocates able to assist you, offered an interpreter free of charge (should you require one), and to inform at least one other person (such as a friend, family member or employer) of your arrest.

Over and above all this, you and your lawyer, at least one hour prior to interview, have the right to a full disclosure regarding your alleged offence. And all this will take place in the presence of your lawyer, who will be allowed to participate interactively in your interrogation at all times. These proceedings, where possible, are to be recorded and a copy given to you, the suspect or accused. The last few pages of the Criminal Code (367-370) make useful reading indeed. 

Malta’s rule of law has come a long way since I wrote that article in 2013 and much further since 2002. In today’s parlance, the phrase ‘rule of law’ has been bandied about so often it has lost most of its meaning and become a mere trope or cliché. 

Today, in Malta, the words are a debased currency and their exchange rate in the political marketplace is low. They are a doubtful rallying cry, appropriated by those with preoccupying agendas of their own: politicians and private individuals who even today remain oblivious to, and deafeningly silent about, the numerous historical injustices of Malta’s recent past. Such legal deficits have their origins in systemic failure and a blatant disregard for human rights – a disregard which sometimes found support in the Maltese courts. 

As the final arbiters of the rule of law, the buck stops with our courts. History has shown that when they choose to ignore the bigger picture and operate in their own legal bubble, our rule of law is seriously compromised and thwarted. 

michelaspiteri@gmail.com

This is a Times of Malta print opinion piece

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