One of the cardinal principles to a fair trial under our criminal law system is the presumption of innocence. It is a right enjoyed by all – the “golden thread”, as it has famously been called, to ensure fairness. There is a great difference between allegations and proven facts. It is the duty of the prosecution – the Attorney General or the police – to prove the accused’s guilt. It is for the courts to assume the accused is treated as innocent until proven guilty.
For the last few weeks, we have been gripped by two parallel and simultaneous enquiries into the assassination of Daphne Caruana Galizia almost three years ago.
In a most curious juxtaposition of judicial planning, the public has heard extraordinary accounts presented to two bodies: one a duly constituted law court presided over by a magistrate hearing testimony in the compilation of evidence against murder suspect Yorgen Fenech (the alleged mastermind behind the assassination of Caruana Galizia) prior to his standing trial.
And, in parallel, the other, a properly constituted public inquiry into the circumstances surrounding the murder. The independent public inquiry – chaired by a retired judge, with two members consisting of one sitting judge and one retired former chief justice – is not a court of law.
Indeed, the cross-examination of those called to give evidence has not been given under oath and some evidence has been taken in camera. Its conduct and proceedings have borne no resemblance to the rules of procedure to ensure a fair trial in a civil court.
And nor should they have done. This is a public inquiry with extremely wide-ranging terms of reference whose objective is to establish the facts preceding and following Caruana Galizia’s murder and the way state actors (the police and other institutions) responded.
Notably, the members of the public inquiry are specifically urged “to conduct the inquiry in such a way as not to impede or compromise any criminal investigation, or prosecution, or its integrity”. But inevitably the evidence being given to the public inquiry has sometimes coincided with, or possibly questioned the testimony of what important witnesses have stated in the compilation of evidence against Fenech.
Caruana Galizia’s assassination has shone a searchlight on the effectiveness of our rule of law- Martin Scicluna
Breathtaking revelations of alleged double-dealing, corruption and betrayal at the highest levels of the Joseph Muscat administration in the magistrate’s compilation of evidence and in the public inquiry may end up undermining the oral and recorded evidence of the middleman (who has been granted a presidential pardon “provided he tells the truth”), and the right to a fair trial of the alleged mastermind. Not overlooking also those who were charged with physically perpetrating Caruana Galizia’s brutal assassination three years ago when eventually they come before the criminal court.
The case thrusts to the fore two key issues: the quality of Malta’s administration of justice; and respect for, and the effectiveness of the rule of law. In the case of the presumption of innocence and the need to ensure that a person charged with a criminal offence should receive a fair trial, the two bodies inevitably frequently overlap.
It has been almost three years since the alleged murderers were arraigned, and one year since the alleged mastermind was arrested. Inefficiency in the administration of justice undermines the rule of law. Committal proceedings that drag on and, as Chief Justice Emeritus De Gaetano put it, “lack of resources in the Attorney General’s Office” lead to endemic delays in meting out justice.
Malta likes to present itself as a rule-based democracy, a country built on law where the law is robust and neutral, a law that fears no one and favours no one. As Chief Justice Emeritus De Gaetano stated: “We have basically a good legal framework with a judiciary that is, for the most part, dedicated but with endemic problems of delays and inefficiency which no government has sought to address in a holistic manner”.
Malta has a long tradition of jurisprudence and judicial oversight. On the whole, we have been moderately well served by systems and individuals, including (until latterly) commissioners of police, who have been independent-minded and independent of the state. Despite some appalling individual lapses, the judiciary, through its independence, has sought to uphold liberty and justice.
The rule of law is fundamental to a civilised society. Respect for it, and the fair, speedy and efficient administration of justice, are central to any successful democracy. It should guide our conduct. It protects our individual rights.
It provides that no person is deemed to be above the law and no one can be punished by the state except for a breach of the law. Overridingly, nobody can be convicted of breaching the law (or be given an amnesty) except in the manner set forth by the law itself.
The assassination of Caruana Galizia has shone a searchlight on the quality and effectiveness of our rule of law and it has sometimes been found wanting.
The two bodies charged with ensuring that justice is fully served – the Magistrate’s Court where the compilation of evidence against the prime suspect behind her assassination is under way; and the high level independent public inquiry into the circumstances of her murder – bear a heavy responsibility to ensure that those accused of this heinous crime receive fair, speedy and well-deserved justice under the law.