Wednesday 18 October 2017

Law theme, mallet of judge, wooden gavel

The questions everyone keeps asking about our judicial system

This article first appeared on Malta Today

Unless you work within the field yourself, the intricacies of the judicial system as seen by the innocent bystander, seem to operate in a parallel universe, with court judgements, decisions and sentencing appearing (at least to us) like a hit and miss affair.

Granted, we accept that we do not work in the legal field, so what seems incomprehensible to us may have a very plausible explanation behind it. It is also true that this issue is very complicated because the judicial system has to abide by the laws as they are written and that it sometimes boils down to the interpretation of said laws. But because it affects everyone who has the misfortune to be affected by a Court decision, perhaps it is time someone who knows all about how it works steps forward and explains it to us mere mortals.

Viewed from the standpoint of a layperson, and here I include myself, we are constantly mystified by how (for similar crimes or incidents) bail is granted to some and not to others, how the maximum punishment is meted out to some and not to others, how suspended sentences are doled out to some and not to others, and many other questions which always arise whenever we read a news item emerging from our Courts. While it is understood that judges and magistrates use their own discretion in handing down sentences, these are often either completely out of proportion to the crime or the law which was broken, while in other cases, they are so woefully inadequate that they sound like a joke.

The shocked reactions online to the paltry punishments in cases of domestic abuse and sexual assaults on women often echo my own: “is that it?!” When it comes to the abuse of children some of the sentences are even more heartbreaking and leave you stunned in disbelief. A child is ruined for life and too often the perpetrator gets away with what is, in real terms, a slap on the wriest. The different ways in which Maltese and foreigners are treated in Court for the same crimes are also so blatantly glaring that it is impossible not to comment.

The other victims of our current judicial system are families. I am tired of reading of cases of (mostly) women tied up in legal tangles as years of their lives go to waste while they sort out child custody issues, division of assets and other issues pertaining to a marital separation. Surely when the other party repeatedly fails to show up for the hearing as a delaying tactic, the Court should decide to move forward with the case in their absence? it seems to me that if you cannot even be bothered to show up to defend your own case than that should work against you, and in my view, three strikes and you lose the case.

Maltese sayings are replete with characteristically sarcastic sayings such as: ‘only go to Court if you are in the wrong’ and ‘when you go to Court, you only know when your case starts, but you will never know when it will finish’. They are always quoted with much wise nodding of the head and an air of hopeless resignation. Anyone who has been to Court will agree that these sayings have more than a ring of truth. In fact, they are so true that there are people who do not even bother going to Court, even though they know they have a strong case, because the time it takes to have the case concluded, the money spent and the likelihood of it not going their way, makes them take one look at that ominous-looking courthouse in Valletta and flatly say, “forget it.” The very thought of entering that building can make most of us feel queasy with anxiety.

On the other hand, if you are the type of person who feels a burning sense of outrage against any injustice, you will see your court case through with grim determination, for years, for as long as it takes. It is not uncommon to read of cases which have dragged on for five, ten, 15, 20 years and more. Some people die before the case has been concluded. It can be galling enough when it is a civil case, to see the person who has broken the law and perhaps screwed you out of your money (for example) basically getting away with it. I cannot even imagine what it must feel like when it is a criminal case, where people have been injured or killed, either in an accident or cold-blooded murder, to see the perpetrator roaming freely because their lawyer got them out on bail. It is especially disquieting when you read in the news that the person out on bail for a serious crime happens to live in your neighbourhood. That’s nice.

So although some of the 450 proposals by the Justice Reform Commission have been implemented, there are still too many areas where the average citizen feels let down by the judicial system. And where is the justice in that?

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