Ban on judges holding other positions dominates House debate

A ban on judges holding other positions yesterday dominated the debate in parliament on the Courts and Tribunals Procedures Bill.

The bill provides that it shall not be lawful for any judge or magistrate to carry out any other profession, business or trade or to hold any other office or position, even of a temporary or voluntary nature, with the exception of a judicial office on an international court, the office of examiner in public educational establishments, an office which is of an honorary nature and any other office established by law expressly providing for the possibility of their appointment.

Opposition spokesman on justice Anglu Farrugia promised that a future Labour government would review the provision because it was too restrictive.

He said that although Justice Minister Austin Gatt at the opening of the debate had said that this bill enjoyed the backing of all those involved in the law courts, it was not true that there was consensus about this clause.

This clause was more restrictive than abroad and judges and magistrates would not even be able to hold positions in sports organisations, teach at the University or hold cultural activities.

The judiciary could well abide by its own code of ethics and the Commission for the Administration of Justice could regulate the behaviour of judges and magistrates, without such restrictions.

Perhaps a sub-committee could be appointed within the commission to regulate modes of behaviour in the context of the code of ethics.

The point was also raised by Labour MP Evarist Bartolo. He said that while the government was trying to give the impression that it wanted judges and magistrates to be totally independent of everything, many cases which used to be heard before judges and magistrates were being transferred to boards whose members were appointed by the government and were more liable to pressures and conflicts of interest.

The bill said that judges and magistrates could not carry out a business or trade. But what about their wives? The government needed to be serious if it really wanted to act against conflicts of interests and family interests. Indeed, some members of the judiciary had already passed on businesses to their wives.

He agreed that the problem of conflicts of interest should be tackled, but to move a clause such as this was deceptive. Conflict of interest was rampant, including areas such as the media and the chairmanships of some parastatal organisations.

As for the prohibition being imposed on judges and magistrates from serving on voluntary organisations, Mr Bartolo said that at least those members of the judiciary who already held such posts should be allowed to retain them as long as that did not interfere with their duties. For example, one could not have a situation where court cases were put off because a judge or magistrate was away because of his duties to a sports organisation.

One could also argue about the pros and cons of allowing judges and magistrates to lecture at the University.

He felt a structure should be created to regulate such matters.

Dr Jose' Herrera (MLP) said that on principle he agreed that judges should not hold other positions. He felt judges should not be lecturers as they should not express themselves on the interpretation of a law except when passing sentence.

He had been informed that this clause had angered the members of the judiciary because they would not even be able to hold posts for which they were not paid, such as positions in band clubs, sports and philanthropic associations.

While it was inconceivable to have a judge who was heavily indebted or who was heavily involved in business, one had to consider that such persons could not simply dump business interests they had before their appointment. How would they regulate themselves? The law should provide that they should not get involved in new businesses after their appointment.

This clause needed to be rewritten because it would create major problems.

Replying later during the winding up of the debate, Dr Gatt said he wanted to admit that the judiciary had not agreed with this clause.

He said the opposition appeared to agree that judges and magistrates should not be involved in business but disagreed that they could not hold other posts. In other debates the opposition had said members of the judiciary should register their interests. The judiciary was against this too. So would it be imposed?

Dr Gatt said the code of ethics adopted by the Commission for the Administration of Justice was signed by all judges and magistrates except Mr Justice Anton Depasquale. It provided that judges should not accept to hold any posts which could seriously hamper them in the performance of their duties.

The code also said that judges should not exercise any activity which was incompatible with their duties, and they should have no other post with the governemnt, on payment, except as expressly laid down by law.

Referring to lecturing, Dr Gatt said that a year ago he had written to the chief justice inviting proposals for a scheme of limited lecturing by judges. He had not received a reply. Up to some time ago, he observed, lecturers used to resign when they became judges.

Turning to whether judges should hold other posts, Dr Gatt observed that an opposition MP had said there was nothing wrong in judges having exposure to social problems, such as by working in the sector of battered wives. But, Dr Gatt said, judges could one day have battered women or drug abusers before them and they, therefore, had to be "purer than Caeser's wife".

The same applied to ministers. They had to resign from committee posts they held even in, say, amateur football clubs. Surely what applied to ministers should also apply to judges, especially when the judges rightly insisted they were not part of the civil service and, indeed, were paid more than ministers.

Dr Gatt said he was sure all judges involved in extra-judiciary posts were very good at such posts, but the real problem was incompatibility with their duties as judges and the way the people viewed them.

For example, had the incidents at Circolo Gozitano and the allegations made in that context against Magistrate Montebello been edifying to the judiciary, independently of whether or not the magistrate was correct? Wouldn't it have been better had the magistrate not been part of that organisation?

In yet another example, a newspaper had carried a report of alleged sexual abuse in the Malta Olympic contingent and Mr Justice Farrugia Sacco, as president of the MOC, had asked for details for investigations to be made. Should a judge be involved in such matters?

Was it right that a judge should be involved in deciding cases on corruption in football? How could a judge sit on a disciplinary board of a sports organisation when those people could later end up in court?

A judge even sat on a board which valuated Church property.

All this was unbelievable. Judges should ideally not have any connections with people who could one day appear before them.

There had been cases where members of band club committees were involved in theft, and the president was a judge. What would happen if a band club became insolvent and the case ended up in court?

How could anyone not understand that a judge who was president of a big organisation such as the Olympic Committee was auomatically excluding all sports-related cases from being heard before him?

In the problematic world of today, temptations were greater and politicians and judges had to be more careful, Dr Gatt said.

Dr Farrugia in his speech observed that the government two years ago had decided to increase court tariffs. The cost to file a case in the first hall of the civil court had increased from Lm30 to Lm306. The tariffs were so high that the public was discouraged from going to court. Indeed, the number of new cases before the first hall had fallen by half.

There had been a similar drop in new cases before the Magistrates' courts, which was not reflected in a corresponding increase in the number of cases before the Small Claims Tribunal, meaning this reduction of new cases had nothing to do with the change of the courts' competence.

Statistics given by Dr Gatt on how the backlog of cases was said to have been reduced did not reflect reality, as there had been a shift in the competence of the courts.

In analysing data globally it was clear that the minister had not distinguished between cases and had put them all in the same basket. Hence the statistics did not reflect what had actually happened in the number of cases decided and those pending.

Dr Farrugia said that the small claims tribunal was in chaos. Although its competence had increased, its facilities had not been improved accordingly and sometimes sittings were even cancelled for shortage of staff.

Although it now considered the bulk of civil cases, the tribunal was still presided by part-time adjudicators who did not even have the space where to work.

A future Labour government would revise court tariffs to ensure that ordinary people had easy access to the courts.

Dr Farrugia referred to introductory remarks by Dr Gatt on capping introduced on expenses by judges on mobile phones and transport. The judges, he said, were nominated in terms of the Constitution and enjoyed independence from the executive and security of tenure. Care had to be taken for this not to be infringed in any way.

The Labour MP said there was no doubt that vast improvement was needed in the way the courts were administered. There had been cases where appeals could not be filed because files had been lost. Records of notification of witnesses could also not be found.

Turning to other aspects of the bill, Dr Farrugia said care had to be taken in the creation of new posts within the court administration in order not to create confusion or overlapping. More than anything else, there should be accountability, such as when documents got lost.

Dr Farrugia said the bill provided that when there was no agreement between counsel and parties on when a sitting would be held, the court could decide on a hearing within two months. Although he agreed with this clause, there could be reasons that justified that a case would not be heard within two months, such as if something happened to a lawyer. The amendment should allow for some more flexibility in justified cases.

Dr Farrugia also observed that in terms of this bill, if five minutes expired after the time set for a court hearing and the counsel did not turn up, a case was put off. This clause was too strong. One could not cross over from one side of the law courts building to another in five minutes.

He could not understand the reason why the bill provided that no appeal may be filed unless it was accompanied by the payment of security for the costs of the appeal. This would tie down hundreds of liri far too early and could create problems because it would be difficult for appeals to be withdrawn. The present system whereby the security was paid when the appeal actually started to be considered should be retained.

Dr Farrugia said he also disagreed that the bill removed the right of appeal from some cases still pending before the Magistrates' Court which had a value below Lm200, simply because such cases were now heard before the Small Claims Tribunal. This should be retained as a matter of principle. Indeed the government should consider how appeals could also be made from decisions of the Small Claims Tribunal, since the competence of the tribunal had been raised.

Dr Farrugia said the issue of warrants for impediment of departure had, since 1994, been restricted to a few particular circumstances. He felt, however, that this was an area which needed to be reviewed because a person who owed some people something like a Lm1 million could freely leave the island while others could be banned for relatively minor reasons.

Turning to the execution of warrants of seizure where they involved property which was part of the community of acquests, Dr Farrugia said that in terms of this bill, property held by a debtor in common with his wife in the community of acquests could still be seized.

He felt that this clause should consider cases where the wife did not know of the commitments her husband would have made.

Indeed, one had to define what was meant by "property" in this clause.

Dr Gavin Gulia (MLP) also complained about the increase in the rate of court tariffs, particularly in the First Hall, saying the increases were substantial.

A mistake was made in the way that court tariffs were raised seven months before the competence of the courts was changed. As a result, cases whose value did not exceed Lm1,500 and which were transferred to the Small Claims Tribunal had carried tariffs applicable to the magistrates' court, creating an injustice. He felt that people whose cases had been transferred from the magistrates' courts to the tribunal should be refunded the difference of costs.

Dr Gulia said he was concerned about the bottleneck of cases before the appeals court, a situation which could become even worse as more cases were decided by the first hall. The bottleneck could defeat the progress made in the number of cases decided in the first hall. Part of the problem could be that the new Chief Justice needed time to take over. It was a fact that the Chief Justice was almost always selected from those serving in the first hall.

Perhaps the choice should be made from among the other judges serving on the appeals court, ensuring more continuity in the appeals court and avoiding the problem of the judge having already pronounced himself on a case heard in the first hall. Should the selection be made from a judge in the first hall, that judge should at least leave the First Hall a year before his appointment so that handover would be smoother.

Dr Gulia said the government needed to tackle the problems of the master system. It was still not working well in the civil court and indeed the current procedure was not according to law, although the master was doing valuable work as best he could.

Dr Gulia criticised the government for having taken so long to set up the Family Court.

Notary Tony Abela (PN) said court cases needed to be heard as quickly as possible in the interests of justice, not least because people required to give evidence could forget events as time went by.

Notary Abela said the PN government had over the years taken various measures to speed up court procedures and allow the courts to concentrate on the more serious cases. For example, minor traffic cases were now heard before Commissioners of Justice. Injustices at the place of work were considered in summary proceedings by ad hoc commissions or tribunals.

It was true that some complained about court tariffs, but consideration should be given to the costs involved in the administration of the courts, which costs were higher than the tariffs paid for most cases.

Dr Jose' Herrera (MLP) recalled that in the 1980s responsibility for the assignment of judges was transferred from the minister of justice to the judges themselves. This had been a good idea as it was true that there were times when abuses could have been made, such as when particular judges were not to the government's liking.

Now, however, the government was contradicting its previous policy as the bill provided that there would be one civil court divided into various divisions for the family, voluntary jurisdiction, commercial and administrative cases. The assignment of the judges would now be made by the President of the Republic, who normally acted on the advice of the Minister of Justice, which meant that the government would again assume the power to assign judges.

Intervening, Dr Gatt said the government had no intention to assume the power to assign judges, as this was a constitutional procedure. The government was not changing anything which already existed in the Code of Organisation and Civil Procedure.

Dr Herrera said this underlined the need for the relevant clause to be clarified.

The Labour MP observed that in terms of the bill the enforcement of executive titles was being improved. A problem had existed because after a case was won, the guilty persons refused to pay up and disposed of their assets. Now the bill rightly laid down that court marshalls could not act as debt collectors, doing away with the possibility of abuse, and if the person concerned was found to have disposed of his assets, he could be held responsible criminally and not just civilly and could be sent to prison. Indeed, the jail term of three months laid down in the bill could be too short.

Referring to changes made in the competence of the courts, Dr Herrera said that libel cases now fell within the competence of the magistrates' courts as the maximum amount of damages which could be awarded was Lm5,000. While he felt that this limit should be raised, he also felt that at least, independently of the damages that could be awarded, libel cases, because of their nature, should continue to be heard in the superior courts, much like the bill provided that cases involving questions of ownership of immovable property would continue to be heard in the superior courts.

Other speakers will be reported in another issue. The bill was later given a second reading.