Comparative radical reform in justice is an enthusiastic research and a propositive activity in law studies, and practice. When it is purely academic, it is just interesting. When it is changed into effective reform, it serves society. Justice ministries have the duty to effect radical reform, following observation of the evolution of society and direct contact with members of society. As others before it, this government has promised to be close to people. This is especially relevant in justice matters. A justice ministry that is distant from people exists in a straitjacket and in introversion.
There are universities, such as René Descartes, where law and human sciences mix in the same premises with access to each others’ libraries. Sometimes one has the pleasure of seeing initiatives making law and pure human sciences indistinguishable. This is to the benefit of both…and beyond, as it takes the purely academic out of the rigid, theoretical laboratory and addresses society better – which is, after all, the main specific aim of law.
It is frustrating to hear members of the legal profession at all levels, from students to the Judiciary, originating from various countries, decry the insufficient real contact, exchange and implemented suggestions materialising into acceptable social reform. Many times I have heard European retired or practising members of the Judiciary state with metaphorical raised arms: “Our hands are tied.” If you think that this is a simple expression of frustration at political lethargy, you are wrong. It is a reference to a tragic situation. Few people understand the tragedy expressed by a member of the Judiciary when stating “My hands are tied.” This is because the country, society, parliament have ignored good suggestions by experts who daily touch problems they wish to solve or at least reduce. Members of the Judiciary do not enjoy castigating people, but seeing them make progress in all aspects of their lives. Thus they are profoundly committed to social progress – if not prevented by tied hands.
A Magistrate or Judge having to repeat: “My hands are tied”, has only one meaning: society has been ignoring radical reform whose importance has been suggested for years. It does indeed happen that a Judge has to make a decision based on conservative moralistic law rather than on his/her progressive social conscience. It takes the finesse out of being a modern, progressive Judge in touch with the evolution of society. All through the fault of conservative resistance by introverted members of society. It is thus no use for people to criticise a Judge who has had to act in a certain way because “his hands are tied”. Certainly a judge does not tie his own hands for some kind of pride or pleasure. As an intelligent human being with a social conscience, a Judge whose hands are tied by the old ropes of society, feels frustrated. Frustration is very often the consequence of unexploited and un-consulted intelligence.
Lethargic law reform may take two forms: slow, eternal, political discussion and pondering before action, or else postponement of obvious, urgent requirements of society unless there is noisy public outcry. I have had occasion to talk to people who nonchalantly state that law and social psychology are not necessarily related. The expression ‘necessarily’ is obviously included to leave within reach a saving hypothesis which may be taken out of the magic hat when spontaneous, effective, argumentative answers of proof and evidence are lacking.
Over these last years, I have noticed that radical justice reform in political discussion has either seriously slumbered or else has been replaced by an exciting promotion of electronics which may be hung for public view as washing on a roof – though not much else. The message that comes across is that one is expected to be impressed by electronic innovations linking the law courts to your computer and your cell phone. Wow, isn’t this radical reform? How can we do everything in one day? Real socio-legal reform will come about also, but you must be patient. If not I, someone else will broach it under my government or one of the other governments in future.
To be fair, I was suddenly positively jolted out of social snoozing recently when hearing, during a political discussion about justice: ‘The time has come when the court has the power to emit a sentence in the lack of presence of the accused.’ Let us for the moment waive aside the fact that using ‘lack of presence’ instead of ‘absence’ is beautiful, poetic language . I also like the suggestion “You may distance yourself” instead of “You may leave.” (Please read ‘Les Précieuses Ridicules’ by Molière). As a graduate in psychology and other human sciences, I liked the expression as I had many times heard that “An objective person must distance himself from himself”. But never mind! Linguistic aspects of human sciences can make a person difficult.
This news, which probably belongs to the ‘one of these days or years’ realm, struck me, as it does not belong to the exciting world of legal electronics, but to the real needs of society. A strange phenomenon of society includes the fact that it is made of individuals with a relative short time span of life expectancy (Did you notice that ‘time span’ and ‘life expectancy’ are both non-hyphenated to look more optimistic?). However justice ministries, maybe in clever complicity with health ministries, are already planning to effect reform to life expectancy even by introducing in ‘absentia decisions’ after careful, anxious consideration of the huge risk this may cause to society? “What if….? Oh no! What if!”
Some European countries have already seriously reflected about the above issue. And not just recently. If anything, the execution (abstract) of this measure would drastically reduce lengthy court passage of time – among other advantages. Which would perhaps eliminate the need for collusion between health and justice ministries regarding the radical reform in life expectancy.
After some writing about radical, non-electronic, reform in justice influenced by social psychology, I had received a call from a lady at a justice department who asked me what I meant by this, that and the other. This was shortly before an election, so the justification of the call bringing ministries closer to people may be understood – considering that I am the people! At the time, I had already said that I had been reading about sentences emitted in absentia of the court client. The answer I received was: ‘Noted’. Which means I had climbed a notch in ministries’ moving closer to people (that is, to me.)
I had, at the time, shocked the legal officer who called me when I said that the courts may be called Centres of Mediation or at least widely behave as such. This part of the conversation took some time, with the whole conversation taking approximately an hour. Which means that the Justice Ministry owes me an hour of life expectancy. I remember saying that mediation may take place in all sorts of cases. Oh no, whatever next, courts re-named Centres of Mediation after centuries of being called Arenas of Litigation! You must be out of your mind! No wonder you have no chance of our improving your life expectancy!
Thus justice ministries have a choice: either move their, er, legs or else somehow legislate to massively increase man’s life expectancy. I believe that the latter has already been successfully done in the USA as there are persons sentenced to imprisonment for over 200 years. Which makes one wonder what miracle foods (no reference to any commercial company) inmates are fed over there. A person who dies at 100 after being sentenced to 200 years is obviously breaking the law; so he receives CPR daily and continuously until he satisfies the rest of his time. This is what society ordains.
A propos to the great defence of society, the discussion came up with the legal officer from the Justice Ministry when I suggested a re-examination of the bizarre ex officio system. You may have an energetic quarrel with your friend. Eventually you become friends all over again. However the law opens up your wounds and push you at each others’ throats. It is contrary to peace and harmony in society but, ironically, an ex officio system is meant to protect society against peace and harmony. Isn’t that really progressist? Indeed, you may wish to ask the poor ex-policeman who was initially accused of abuse, then the accusation was withdrawn by the accuser, but the infamous ex-officio system continued to chase him for years and he recently ended up innocent and seriously ill. But not to worry; the ex officio system hounds and whips people to protect society. So, basically, it is for your own good.
Over a number of years, the number of qualified interpreters in Court has drastically diminished – to the disillusion of all. I am asked why my university students whom I take round in Court to learn this profession, are not interested to remain. Plans were made, meetings with the Justice Ministry held. Progress was minimal. My personal opinion is simply that courtesy meetings are well and good. Results are better. But only electronic.
Some time ago I communicated with both MAM and the Chamber of Advocates. I obtained an answer from the medical profession but not from the Chamber of Advocates. My intention, as a member of ERB, was to contribute to a closer mutual understanding of medical certificates in court. Incredibly I once saw a lawyer wave a medical certificate by a psychiatrist and asking: “How can a sick person go to a restaurant?” The psychiatrist retorted: “I told him to do so!” With 25% of society having psychological issues, the university law course must introduce some social psychology so that lawyers wouldn’t wave valid medical certificates with an air of euphoric triumph.
Finally I had suggested a voluntary re-education system meant to attract law breakers towards an examination and improvement of their unsocial behaviour by a reduction of their sentence.
These last years, I have seen only random radical legislation related to justice. While ‘radical’ is normally a positive word if it expresses courage in social commitment, when the dynamism in commitment is reduced to ‘random’, there is an aura of lethargy hanging in the air.
The lack of compatibility in reform between the purely introverted legal and the social is in itself an act of giving the cold shoulder to society, unless one can disprove that active radicalism has its origin in the ideas and feelings of people.
Meanwhile, the legal officer who had phoned me from the Justice Ministry no less than a few years ago, saying my suggestions had been noted, has not yet responded. She must have fallen out of love with me or else, while the Justice Ministry is close to people, I am not one of the people.
But inevitably, Maltese society is winning its battle against Victorianism and Puritanism. Judge Consuelo Scerri Herrera who, like others, had been criticised for being extraverted instead of rigidly conservative, said that a Judge “must have knowledge of the realities of society at large”. I take this to mean that one understands people also by listening to them NOT by looking at them.
Dr Anthony Licari has a background of Human Sciences from various French universities.