Josè Herrera | Sunday, 29 March 2009

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Reflections on parole

I read with interest, and certain satisfaction, the White Paper issued by the Justice Minister with regards to Reparative Justice. In essence, this document deals with proposals concerning the introduction of parole.
From a personal perspective, these proposed reforms are of special interest, since during my long years in Parliament, I have been taking the initiative to lobby for the introduction of similar amendments to our penal regime. Various other members of parliament have shown similar interest, particularly so, Jason Azzopardi.
Interestingly, Jason and I had gone so far as to dwell on the possibility of presenting a joint Private Members’ Bill in this regard. We were, however, overtaken by national events: the last General Election.
Quite frankly, what had instigated me in this direction was my disdain of the arbitrary way in which pardons were being granted or otherwise. Experience has shown me that in small countries like ours, where connection to people with influence counts for much, too much discretion can lead to abuse, and this has also been apparent in this regard. My parliamentary initiatives were aimed at substituting as much as possible the discretionary powers of the President with that of an independent Parole Board.
In truth, though, the proposed amendments go much further. My criticism of the proposed law is the following.
Lifers are being, a priori, excluded from the possibility of parole, except with the special consent of the President. I fail to concur with this, since here again too much discretionary power is being left in the hands of the Executive. There are also juridical connotations regarding such opposition, which we must take note of.
According to the provisions of the European Arrest Warrant, the judicial authorities of a country must refuse the extradition of the individual who would be facing an indeterminate prison term, when the receiving country would lack a system of review. In view of this, our judicial authorities could find themselves in serious difficulty in convincing other European Judicial Authorities to hand over suspects who could be facing a life sentence in Malta. Moreover, it must be pointed out that in June 2004, the European Commission had issued a Green Paper entitled ‘The Approximation, Mutual Recognition and the Enforcement of Criminal Sanctions in the European Union’. Here the Commission is proposing nothing less than the abolition of indeterminate sentencing, definitely expressing itself contrary to a penal regime whereby lifers are devoid of the possibility of appearing before parole boards.
The way the Parole Board is to be constituted also deserves certain remarks. The White Paper suggests that the full compliment of the Board should be nine. To my mind, the number is excessive and will make it less practical to come to a consensual decision. It must be pointed out that after all, the Highest Court in the land, which can even overrule Parliament itself, is composed of merely three members.
The White Paper further hypothesises that the Chairman would be a member or an ex-member of the judiciary. I am not comfortable with the idea of having an incumbent member of the judiciary occupying this post. Undoubtedly, a present member of the judiciary, especially if he would be presiding over criminal matters, could even find himself in persistent conflict.
I would also comment on the fact that the White Paper omits the nomination of a criminologist on the Parole Board. This is strange, since, as a matter of fact, parole matters fall very well within the field of expertise of such professional.
I feel I must also criticise the fact that inmates would be given an option of either sticking to the system in practice, which is that of the remission of prison sentences (contemplated in article 14 of Chapter 260 of the Laws of Malta), or to opt to apply for parole. Purportedly the remission law establishes that one third of the prison term should be remitted for things like good behaviour. In practice, however, remission is practically automatic. The White Paper provides for the eligibility of parole, in certain instances after the person concerned would have served half the term, while in other cases, after the inmate would have served two thirds of his punishment. Undoubtedly, with regards to the latter, these could have no interest in applying for parole since they have nothing to gain from it.
Creating a distinction regarding when different categories of inmates could apply for parole, could be viewed as discriminatory. Therefore, parole should be available for all concerned (with certain necessary exceptions, like for example those detained under the Immigration Act) after having computed, say, half their prison term. The system of remission should be all but abolished, and reserved for those who would be serving sentence of less than 12 months, and therefore, could not benefit from parole.
As regards those serving life imprisonment, the judge presiding over the Criminal Court should be vested with the power to declare when, and after how many years, the convicted should be entitled to have a hearing before the said Board.
Notwithstanding my reservations expressed earlier, and without sounding contradictory, I feel that, yes, the President should remain vested with the power to grant pardons. This power should, however, only be exercised in exceptional circumstances, and in matters not dealing with prison terms, like fines and confiscation orders.
In such instances, however, the Head of State must give a written justification when granting a pardon, to avoid suspect.
On a final note, I give the thumbs up for the Minister’s initiative in this regard.
Josè Herrera is shadow minister for justice

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