by Paul Blandford
On prosecuting, presidential pardons
and political trials
General he has publicly criticised the jury system, advised on
some of the most controversial Presidential Pardons awarded and
today he gives his thoughts on the great divorce debate. Anthony
Borg Barthet also tells MIRIAM DUNN about the difficulties of
prosecuting in trials where there are political overtones and
why he believes there are too many acquittals
played its part in determining the future of Maltas Attorney
General. Anthony Borg Barthet recounts how, as a child, he had
his heart set on a military career.
the rather romantic notion of Sandhurst and becoming an officer,
partly because my family were service outfitters, so I grew up
seeing all the military things that were for sale and this put
the idea in my mind," he explains.
But an accident
when he was aged 13 put paid to this plan and, he says, left him
with a choice of professions either architecture or law.
design, so I was very tempted to take architecture, but then I
decided my accident meant I wouldnt be agile enough to climb
when necessary to see what was happening with the builders, so
that left law," he says.
his studies, Dr Borg Barthet started out in private practice in
1973 and after about 18 months, joined the government service
as a notary.
transferred here in 1978 and Ive been here ever since,"
he explains. "I admit that I now think of myself as a civil
servant, but with all the positive connotations that the word
inspires, not the bad ones!"
I ask him
whether, following his accident, it took time for him to come
to terms with his disability and he recalls the words of the surgeon
who treated him at a UK hospital.
particular surgeon had spent a lot of time rehabilitating servicemen
and he had a wonderful philosophy, which was dont
count what youve lost, but count what you have left,"
is his answer.
is something Ive always remembered and it helps you get
along. Of course, there have been moments in my life when things
were not easy, like when I couldnt play football with my
boys, or go for walks in the country with my family. But there
have been advantages. Ive had more time to think."
as he looks back on his professional career with a joke.
though joining the army was out of the question, I can say that
if I couldnt become a general, having opted for law, I did
at least become attorney general!"
Dr Borg Barthet
has indeed been AG for 12 years; the longest serving since the
war. Obviously he has witnessed major changes to the legal system
over the years. What, I wonder, are the ones that stick in his
biggest change generally is probably the amount of legislation
that has been enacted since the late 1980s," he answers.
"It probably surpasses all the legislation passed previous
to that. Malta has become more outgoing, in its bid to become
a party to world affairs in commerce, while society has become
less tied to its religious roots and the law has had to adjust
as an example, the fact that when he became a lawyer, adultery
was a crime.
society doesnt accept that anymore and considers adultery
as something private, which is one example of how family law has
almost completely changed," he explains.
Dr Borg Barthet
also highlights other areas of law that were unheard of just a
few years back, such as economic crime, including money laundering
and insider trading.
fact, I wonder how much of the law I studied is there, apart from
the basic principles!" he muses.
I move on
to a well-publicised criticism that is often thrown at the legal
system and the courts in general that of delay.
Dr Borg Barthet
is cautious to attack delays in the formulating of legislation.
when changes are needed, you cannot move too quickly with the
law, but its useless putting the cart before the horse,"
he says. "Unless society is prepared to accept the innovations
the law brings, then its useless legislating. You need time
for society to accept some laws."
But he admits
that there are some areas of the family law reforms where he would
have liked to see things move faster, especially with regard to
stamping out discrimination stemming from illegitimacy.
I am interested
to know whether, if the law tends to follow developments in society,
this inevitably sometimes puts it on a collision course with the
Church has the right to teach its rules to its members, but theres
no way the state should impose general morality on an individual,
unless its essential for the states survival in an
acceptable way," he replies. "This is, after all, the
foundation of the great divorce debate. I see nothing wrong in
the state enacting a law for divorce unless the state sees that
as further breaking down the family and the stability of marriage,
which is essential to it."
delays in getting laws enacted due to parliamentary debates?
General also sees this as something of a double-edged sword.
requires the time needed for debate - there has to be a compromise
between having enough time for debate and getting a Bill passed
within reasonable time," he answers. "In fact, sometimes
when a law is passed through parliament too quickly I feel jittery
and wonder whether enough consideration has been given to my draft.
unfortunately, at other times, speakers just want to make political
points. But it must be said that parliamentary committees have
helped in this respect, providing the forum for discussion on
the technical points."
delays in courts are a different type of problem, which no one
will dispute, surely?
this is very frustrating," he answers. "I think the
main issue stems from poor case management and a lack of discipline
a lack of self discipline on the side of the lawyers and
also a lack of discipline on the lawyers by the judges. The system
we have means that the lawyer files the writ and then starts studying
the case when the case debate comes up, so theres not enough
study or office work being done by the lawyer or judge."
Dr Borg Barthet
believes the State has an obligation to provide an efficient court
system for people to use and is of the opinion that this should
be at the cost of the defaulting parties and not subsidised by
the other hand the State should provide a good legal aid system
and this is lacking at present," he adds.
that in separation and criminal cases, legal aid is practically
granted automatically, but for anything else theres no system
in place under which one would qualify.
current legal aid system is that either you pay all or nothing,
whereas a better procedure would be to consider a person pays
part of the costs," he says. "We really need to think
of possibly having a system in place whereby lawyers should also
consider it their professional duty to take on some unpaid work
for people who cant afford it."
Is this idea
likely to be put into practice in the future, I ask?
been a lot of talk on the matter and politicians have it on their
minds," the AG answers, " but we need the willingness
of the legal profession, and the reply I have got from the lawyers
so far is that unpaid work is out of the question."
I move on
to another mammoth question; does he think the present legal system
is never as just as you want it to be," he replies. "As
we have mentioned, the biggest injustice is probably delay. We
need a faster system and one way this could be helped would be
if lawyers could help their clients settle disputes out of court
where possible, leaving the courts free for cases where a judge
is really needed."
At the same
time, Dr Borg Barthet stresses that too speedy a trial after the
event is not wise, and can be to the defendants disadvantage,
since a jury would be too charged emotionally to hear a case too
soon after it has happened.
I can understand
why a certain amount of delay is therefore to the advantage of
the accused, but doesnt this make it difficult for suspects
being held in preventive custody?
should be kept on remand unless theres a need for it,"
the AG answers. "A suspect might not give you sufficient
reassurance that he will appear for the trial, or he might be
are perimeters within the law as to how long a person should be
kept on remand, depending on the charges and I think they are
that of course, if a person who has been held in preventive custody
is found innocent, the time spent behind bars is "an unfortunate
waste of his life".
let us remember that a person found not guilty is not necessarily
innocent," he adds, with a smile drawing on years of experience.
whether Dr Borg Barthet is making a veiled reference to his previous
criticism of the jury system, and his on-record comment that there
have been far too many acquittals.
"I stand by my views, which incidentally are shared by many,
that juries are not professional," he says. "Jurors
dont have the experience to make certain decisions. Experience
helps you realise whether a person is lying or telling the truth,
and jurors, unlike judges or magistrates, dont have that."
He also points
out that many jurors dont want the responsibility of having
to make such a decision.
a list of jurors is posted, we find a great number who dont
want to do it, either because their lives are interrupted or simply
because they dont think theyre up to it," he
The AG points
out that the cases that go to jury trial nowadays tend to be either
drug-related or homicides.
drugs cases, a lot of jurors feel threatened," he says. "We
have had a case where we had to remove a juror because the Marshall
overheard a juror phoning his wife and saying Ive
got you and my kid to think about and no matter what I hear Im
not going to put you in jeopardy. It happens. Its
just that very few people admit it."
bring different problems, primarily the technical aspects, and
also how to ensure jurors remain dispassionate.
jury are not academically trained and can be taken in emotionally,"
the AG says. "We err on the side of mercy and the result
is that we have had too many acquittals or homicide cases dropped
to lesser charges. If society feels safe that way, then good for
it, but I dont think it should. If it doesnt want
people who have murdered somebody behind bars, why have a trial
arise when there is a criminal trial with political input, as
Dr Borg Barthet explains.
never ask for a juror to be disempanelled because he is a member
of a political party, but if you get a majority of jurors belonging
to the party that thinks there should be an acquittal, weve
had it," he says. "If someone in politics gets involved
in a criminal case, either as a witness or a victim then its
completely impossible to empanel a jury with a clear, impartial
in all, I would be much happier to see cases heard by a panel
made up of a judge and two magistrates. It would be much fairer."
We move on
to the subject of Presidential Pardons. Are they needed, I ask.
either where theres a miscarriage of justice, where the
law in its severity has hit harder than it should have done, or
to get a witness to talk about the other parties in the case to
be able to convict them," the AG answers. "It is one
system which has proved itself over time to be a means of breaking
the downfall of this system is if the prosecution fails to get
you dont recommend a Presidential Pardon unless you feel
youve got a case by giving that pardon and taking the evidence,"
Dr Borg Barthet replies. "Yes, if this isnt the case,
the system could be defective and you could finish up with an
acquittal, but we usually do not give a pardon if we think that
I advised the government to give a Presidential Pardon, I was
pretty sure there was enough evidence for a conviction."
And is it
difficult when cases dont go his way? Does the State Prosecution
get frustrated, we dont have the privilege of getting angry,"
he says with a smile. "We do our job as best we can, but
if the system is not working, then yes, it can be frustrating."