Opinion • February 8 2004

Being tried by one’s peers – The Ultimate Guarantee

Labour MP Jose Herrera defends the jury system in the aftermath of the Meinrad Calleja verdict

In the aftermath of the trial of Meinrad Calleja the jury system has again been severely criticized by the government. In this respect, however, it is surely uncalled for and downright unethical for the Prime Minister and the Minister of Justice to rubbish the verdict.
The administration of justice in a civilized and democratic country is the sole prerogative of the judicial organ of state. The government’s utterances in this respect are therefore tantamount to undue interference by the executive branch of state in the due process. It is also unbecoming of the government to declare its intention to revamp the jury system merely because it is not satisfied with the outcome of a particular trial.
When we speak about trials by jury we often omit to mention the reasoning behind the system, that is, the right of a citizen to be judged by his equals, which today is accepted as an undeniable and inherent right.
According to Article 97 of our Constitution the independence of our judiciary is entrenched and overwhelmingly protected. This is intended to safeguard the utter impartiality of our judiciary. The question however is whether such safeguards have, in practice and at all times, proved to be sufficient.
In general the answer is in the affirmative, but unfortunately there have been exceptions whereby our judiciary has not always proved to be as infallible as it purports to be as regards its independence. I dare say that unfortunately, in exceptional cases, especially polarized ones, it has appeared to succumb to the overwhelming pressure of the executive branch of state. Ironically it had been the present Prime Minister Fenech Adami who in the past used to be in the forefront of such criticism.
It must be pointed out, for example, that in the first twenty years that Malta had a Constitutional Court, it is perhaps tragic to note that not even half a dozen judgments were ever pronounced against the government of the day. The few judgments that were ever delivered are regarded as monumental judgments and are part of our national judicial history and this notwithstanding the numerous instances in the past that our courts have had occasion to assert their authority.

The few Lord Dennings that presided over the Maltese bench in this period had to sacrifice a lot, perhaps too much, for their audacity. Not only in Constitutional matters have members of the judiciary suffered the wrath of politicians, but also in their ordinary day’s work.
The members of our judiciary have their careers to think about and notwithstanding all the guarantees mentioned in the Constitution, at times, have found themselves in very vulnerable positions. This is not to say that our judiciary has not proved itself time and time again as the hallmark of democracy and rule of law in the most difficult circumstances.
However, it must be pointed out that our judges do not possess divine attributes and a minority of them have shown, in the past, to be complacent to government’s whims. As is appearing to be the case, in public law it is futile to argue that the government of the day would not have some vested interest in the outcome of a particular trial. Criminal justice is perhaps the highest form of justice, since it deals with the liberty and freedom of the individual.
On the contrary twelve common citizens have no career to safeguard since they only form part of the court for an instance and afterwards they go back to their private lives and careers. They do not have to face any music or repercussions. They are truly independent and their independence is not guaranteed only by some written law but by reality.
The judicial office is one of the loneliest and most isolated positions that exist. A judge is always requested to deliberate on his own the cause before him and pronounce judgment in matters which, at times, are not only highly sensitive but also carry implications of political import.
I do not think it would be fair in the circumstances that our judges be burdened with presiding trials without the comfort of a jury. They work in very difficult circumstances in a highly politically polarized atmosphere. This would put them in a position of immeasurable criticism and in certain cases this would prove to be unbearable.
Therefore, yes, all citizens have an inherent right to select to be judged by their peers. They have such a right since it is in their interest to be judged by people completely extraneous to political and other motivations. Only then will an accused in a trial ever be able to accept a verdict pronounced.

Dr Jose A. Herrera LL.D is a Labour MP