Interview | Sunday, 11 April 2010

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Law and disorder

DR EMMANUEL MALLIA balances a deep respect for the rule of law with equally scathing comments on the state of the law courts. A strong believer in freedom of expression, he does not approve of hate and vindictiveness in blogs and is still non-committal on his political future

Emmanuel Mallia, by all accounts a top-notch criminal lawyer, has clear views on several issues, most notably the much needed reform of the law courts, as well as the need to ignore vile personal attacks. We start off with a short personal profile on how he began his legal career, and who he feels he really is.
“A human being,” he laughs. “Dr Mallia is a person who was born into a very hard working family whose parents believed in a good education for their children. Through this encouragement I did very well at school and eventually decided to enter University to follow the Law course. After graduating in 1979, I opened an office in Victoria, Gozo and Zebbug, Malta; eventually practising from an office in Msida where after some time I formed the law firm Emanuel Mallia and Associates. Eventually I was asked by Guido De Marco, who had become Foreign Minister , to assist in taking over his well-established criminal practice. I teamed up with Giannella Caruana Curran and I believe that we were successful in our work over the years. It was only last year that we decided to go our separate ways.”
Mallia handled quite a few high-profile cases in his career, with some controversial ones also making the headlines. However he remains tight-lipped on the particular aspects of the various clients he has defended, although he does let slip a certain sense of satisfaction regarding one particular case.
“As a rule I hate commenting on particular cases in which I was involved, partly on ethical grounds and also because I believe it is not right to mention the names of clients after their cases have been definitely decided. However from a general viewpoint I must admit I have had some high-profile cases which were commented upon by politicians at pre-trial stage. These cases made my work much more difficult, especially when some statements and interpretations of certain facts of the case were made in the press. In one particular case which springs to mind, justice triumphed and the client was acquitted, notwithstanding such adverse currents.”
Mallia hints at political overtones in these controversial cases, but insists he was never put under any political pressure himself.
“I am not saying that at all. Such comments do not affect me either personally or professionally in the least bit. I am a firm believer in the independence of the profession. Once a lawyer accepts a brief he or she should do their utmost in the interests of the client to help in administering justice according to law.”
We move on to discuss the Law Courts, and how the situation has changed over the years. Mallia comments on the present situation following the debacle in the judiciary some years back.
“As for the Bench, I have unquestionable faith in the impartiality of the judiciary notwithstanding the unfortunate incidents that occurred in recent years. As far as the Law Courts are concerned I cannot say that I am happy with how things are going on at the moment. I seriously believe that a Commission should be appointed to study the situation and come up with some serious recommendations in a report. In Malta we are lucky to have a substantial number of retired judges and magistrates who, although no longer in active judicial service, have acquired valuable experience over their years of service and can still make a very valid contribution to the country.”
Mallia believes that the right way to tackle reform in the legislation and the Criminal Courts does not involve endless White Papers intended to amend Laws. Commissions should be appointed, preferably with the participation of retired members of the Bench who should draw a detailed report proposing recommendations leading to structured, consistent and properly planned amendments across the Board.
“I am a strong believer that you cannot have police inspectors and other officers who are investigating a crime scene being assisted by court appointed experts who are members of the Police Corp. Some will argue that the experts are appointed by the Court, but quite frankly this does not make much sense in actual practice. I am not in any way saying that such court appointed experts are acting irregularly. What I am saying is that justice should not only be done but should manifestly and undoubtedly be seen to be done. The time has come either to adopt the system of ex parte experts... alternatively, experts should be independent.”
Mallia mentions, among other matters, proper training for the staff at the Law Courts to enable them to carry out their duties in a professional manner.
“Court staff should be trained appropriately so that the Judiciary should have the necessary assistance, as is the case abroad, where judges and magistrates have an army of staff to assist them. Unfortunately there is a lack of funding to employ such assistants although every year we listen to the President of the Chamber of Advocates and the Chief Justice complaining about this sorry situation. Another issue which I feel needs to be addressed is the actual management of the Law Courts with loads of people being asked to attend court at 9am, when their cases are hours later. There are days where, in the inferior Courts, only one or two magistrates are working and other days when the corridors are packed solid with people as some eleven magistrates will be in session at the same time. Government should also seriously review the remuneration received by judges and magistrates. Government has rightfully reviewed the salaries of medical professionals in hospitals, accepts to pay high remunerations to consultants and chairmen of certain Bodies, but is a miser when it comes to the conditions and remuneration paid to members of the Bench.”
Mallia refers to the recent legal amendment, where counsel can be called by a suspect before police interrogation, stating that the way we are going about it is a ‘joke’. He is also doubtful about some methods the Secret Service use in obtaining information which is eventually prevented from reaching public consumption.
“There is the doctrine of disclosure which is applicable in other countries that has not been included when this amendment has been moved. How can a lawyer give advice to his client if he orshe does not know what proof the police would have at that stage against the suspect? This amendment is half-baked. We are boasting that we have introduced an amendment which is actually nonsensical.”
Regarding the Secret Service, Mallia admits this has a very important function within our country to combat criminal activity.
“However this does not mean that no limits on their operation should be imposed. For instance when telephones are tapped the law requires that they obtain warrants from the Minister. In a particular case I had asked the Court to order that the warrants should be exhibited in case’s record. There was great objection to this by the head of the secret service, assisted by the Attorney General. They contended that these are protected documents. After a legal tussle I won the point and upon examining these warrants, it seemed clear that there were certain inconsistencies in them from a procedural point of view. I am also uneasy with the fact that it is the Minister who authorises these warrants instead of the Commissioner appointed under the Act. These warrants should not be printed template style on A4 paper. These warrants should have some security mark ensuring that the warrant was truly released from the Minister, they should be numbered so that are accounted for, a list of warrants issued should be kept in a register and they should be dated with an exact indication of the time when the warrant was signed.”
Will Dr Mallia confirm rumours that he will be contesting the General Election with the Labour party?
“I believe that everyone is important but no one is indispensable, so it will not be a great loss if I do not contest. Rumours are always rumours. However I can tell you that I have been approached to contest the elections. I can also add that politics has always interested me. This is however a very difficult decision in one’s life. I love my profession and family very much. When one enters the political arena, one must be prepared to make a lot of sacrifices. His aim should be to improve the lives of his fellow citizens. I therefore believe that before thinking of politics one should be successful in his work. It is then that one should assess the next step in life after having established oneself. Politics is also very fickle with adulation being the order of the day when you are at the top but when all this stops you are thrown out in the cold with no prospects. Due to the fact that I have in the past practised in a particular law firm, I have also been exposed to a particular political viewpoint – but the offer which was made to me on 1 January 2009. However I can assure you that I have not taken any decision on the issue and I am also a person who weighs the pros and cons very carefully before committing myself.”
Mallia deplores the snide personal attacks which have been directed against him and others for their perceived views and private life.
“I believe in constructive criticism and am wholly against attacks of a personal nature. Although this may be hurtful for some, for me it is like water off a duck’s back. I am convinced that whatever is written will not change my friends’ and close associates views of me. This sort of destructive criticism has no negative effect on me. On the contrary it does not deter me from taking any decision. It tends to rub me the wrong way. Incidentally a friend of mine expressed surprise that the offer came from the Labour party but I can assure everyone that if I decide I will go for the task with full vigour as I have always done”.
The recent propagation of hate blogs does not appear to have deterred Mallia from entering the political fray.
“I believe that the culture of fear is only for cowards and in the field of Law I practise, there is no place for cowards. Any decision I take at this stage, as also anything else I do in my life, will most certainly not (just as it has never been in the past) be affected or dictated by the culture of spreading allegations and insinuations. I live my life in the light of my principles and my values and strive to maintain the high standards which I feel my profession demands in its daily exercise. This in itself excludes doing anything simply to please anyone else or indeed also refraining from doing anything for fear of some reactions... To date, I have never sued anyone for libel, though there were instances when I could have done. I am a strong believer in the ‘live and let live’ principle. I walk in the street with my head held high and at peace with myself.”
But he is conscious of the importance of the news media in all formats.
“In a country like Malta, one of the national hobbies is gossip, which is something experienced in all levels of society. Some may argue that those who have public functions may be scrutinised both on an official and on a personal basis.”

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