interview


Photo by Paul Blandford

On prosecuting, presidential pardons and political trials

As Attorney 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

Fate certainly played its part in determining the future of Malta’s Attorney General. Anthony Borg Barthet recounts how, as a child, he had his heart set on a military career.

"I had 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.

"I liked design, so I was very tempted to take architecture, but then I decided my accident meant I wouldn’t be agile enough to climb when necessary to see what was happening with the builders, so that left law," he says.

Following his studies, Dr Borg Barthet started out in private practice in 1973 and after about 18 months, joined the government service as a notary.

"I was transferred here in 1978 and I’ve 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.

"This particular surgeon had spent a lot of time rehabilitating servicemen and he had a wonderful philosophy, which was ‘don’t count what you’ve lost, but count what you have left’," is his answer.

"That is something I’ve 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 couldn’t play football with my boys, or go for walks in the country with my family. But there have been advantages. I’ve had more time to think."

He smiles as he looks back on his professional career with a joke.

"Even though joining the army was out of the question, I can say that if I couldn’t 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 mind?

"The 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 accordingly."

He gives, as an example, the fact that when he became a lawyer, adultery was a crime.

"Nowadays society doesn’t 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.

"In 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.

"Granted, when changes are needed, you cannot move too quickly with the law, but it’s useless putting the cart before the horse," he says. "Unless society is prepared to accept the innovations the law brings, then it’s 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.

"The Church has the right to teach its rules to its members, but there’s no way the state should impose general morality on an individual, unless it’s essential for the state’s 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."

What about delays in getting laws enacted due to parliamentary debates?

The Attorney General also sees this as something of a double-edged sword.

"Parliament 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.

"Yes, 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."

Obviously, delays in courts are a different type of problem, which no one will dispute, surely?

"Yes, 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 there’s 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 taxpayers.

"On the other hand the State should provide a good legal aid system and this is lacking at present," he adds.

He explains that in separation and criminal cases, legal aid is practically granted automatically, but for anything else there’s no system in place under which one would qualify.

"Our 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 can’t afford it."

Is this idea likely to be put into practice in the future, I ask?

"There’s 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 just?

"It 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 defendant’s 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 doesn’t this make it difficult for suspects being held in preventive custody?

"Nobody should be kept on remand unless there’s 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 dangerous.

"There 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 adequate safeguards."

He admits 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".

"But let us remember that a person found not guilty is not necessarily innocent," he adds, with a smile drawing on years of experience.

I wonder 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 don’t 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, don’t have that."

He also points out that many jurors don’t want the responsibility of having to make such a decision.

"Whenever a list of jurors is posted, we find a great number who don’t want to do it, either because their lives are interrupted or simply because they don’t think they’re up to it," he adds.

The AG points out that the cases that go to jury trial nowadays tend to be either drug-related or homicides.

"In 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 ‘I’ve got you and my kid to think about and no matter what I hear I’m not going to put you in jeopardy’. It happens. It’s just that very few people admit it."

Homicides bring different problems, primarily the technical aspects, and also how to ensure jurors remain dispassionate.

"The 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 don’t think it should. If it doesn’t want people who have murdered somebody behind bars, why have a trial at all?"

Other problems arise when there is a criminal trial with political input, as Dr Borg Barthet explains.

"We 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, we’ve had it," he says. "If someone in politics gets involved in a criminal case, either as a witness or a victim then it’s completely impossible to empanel a jury with a clear, impartial view.

"All 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.

"Yes, either where there’s 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 criminal gangs."

But surely the downfall of this system is if the prosecution fails to get a conviction?

"Normally you don’t recommend a Presidential Pardon unless you feel you’ve got a case by giving that pardon and taking the evidence," Dr Borg Barthet replies. "Yes, if this isn’t 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 could happen.

"Wherever 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 don’t go his way? Does the State Prosecution get angry?

"We get frustrated, we don’t 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."