Reforming the justice system

Malta’s criminal justice system is often criticised for its sluggishness; and recent experience makes it easy to see why.

Consider, for instance, how brothers George and Alfred Degiorgio – currently serving a 40-year sentence for the murder of Daphne Caruana Galizia - were arrested in December 2017. Yet their trial took almost five years to commence, in October 2022.

Likewise, Yorgen Fenech was charged with masterminding the same murder, back in November 2019. More than three years have elapsed since then; yet still, no date has been set for his trial.

But while these timeframes may appear ‘excessive’ – they are not even the worst examples, of unacceptable delays in the justice system (though they certainly do stand out more, on account of their ‘high-profile’ nature).

Nonetheless, many are left questioning why it takes so long to reach trial stage; and part of the blame clearly lies with how the compilation of evidence stage is structured at law.

Within this context, the proposed reforms to the criminal justice system - authored by retired judge Antonio Mizzi and unveiled last week by Justice Minister Jonathan Attard – are a welcome development.

The proposals aim to cut down the pre-trial period in criminal cases, by – among other things - imposing a one-year maximum time limit for the compilation of evidence stage; as well as eliminating unnecessary repetition of testimony. 

Another key element is the removal of the AG referral system: whereby the acts of any case go back and forth to the Attorney General’s office, to determine whether more proof is required (usually resulting in pointless, avoidable delays.) 

It is also positive that the reform document has been published for public consultation: given the sensitivity of the task at hand (i.e., trying to strike a balance between the rights of the accused to a fair trial, and the victims’ right to have justice delivered swiftly).  

Moreover, it is important to receive feedback from actors in the field, including members of the judiciary, because they would be the ones most directly impacted by the outcome.

But while these reforms will hopefully lead to a more efficient process, that delivers justice in the shortest timeframe possible, the aim cannot be limited only to ‘expediting justice’, for its own sake. It must also ensure that the criminal justice system continues to deliver equitable justice, to all parties concerned.

Attard’s job, at the end of the public consultation process in May, will be to steer the reform to its conclusion, by judiciously finding a compromise that is widely acceptable between the different views.

As such, he cannot allow the reform to get bogged down because of antiquated mentalities that shun change, including those of some members of the judiciary; or which cannot understand the exigencies of an evolving society. But in moving forward, he must also remain attentive to any criticism that may be made on certain aspects: especially where these concern human rights.

Above all, the Justice Minister must be careful to avoid the trap of conflating ‘efficiency’, with ‘effectiveness’. For while a faster criminal justice process would certainly be very welcome: it cannot come at the cost of justice itself.

For instance: this reform will undoubtedly create more pressure on the prosecution, to wrap up their cases as quickly as possible. And such haste may easily lead to errors: unless the police, and the office of the Attorney General, carry out their work diligently before the arrests are made, and charges filed.

To this end, the government must also ensure that the prosecution has all the necessary resources at its disposal, including work and pay conditions, to keep its staff members motivated.

Additionally, the law courts and their internal operations should be fully digitalised, by now. In 2023 - when the rest of the world is discussing the challenges of Artificial Intelligence - the Maltese law courts inexplicably remain paper-based institutions; as does the Police Force, where case files remain largely paper-based (with all the obvious risks this entails).

Likewise, justice would be better served if ‘magisterial inquiries’ were to be conducted by specialised inquiring magistrates; rather than simply added to the (already excessive) workload of existing magistrates.

The introduction of inquiring magistrates – specifically dedicated to conducting inquiries – would not only free up the rest of the judiciary, to focus on their court-commitments; but it should also help shorten the timeframes for the inquiries themselves (another area which is often criticised for delays).

At the very least, it might avoid embarrassing situations of the kind that emerged last year: when it became apparent, in the aftermath of the Bernice Cassar murder, that only one magistrate was hearing domestic abuse cases (and at the height of that controversy, the magistrate in question was out conducting an inquiry into a traffic accident, because she happened to be on duty on the day.)

Naturally, this is not the magistrate’s own fault; but it is further proof – if any were needed - that Malta’s criminal justice system requires an overhaul, in its totality. And urgently, too: for the justice system is a key pillar of democracy and as such, it requires constant attention, to ensure that it works both efficiently, and effectively.