Act now

Some years ago I wrote an article, published in The Sunday Times, entitled 'Act now or!' about the overall state at the Law Courts. All parties involved in the administration of justice, be they judges, magistrates, lawyers and administrators, have all contributed in varying degrees to the crisis we have today, which with the very recent judicial scandal has assumed very serious proportions.

Loss of dignity, lowering of moral fibre and ethical values, lack of discipline and self discipline, and disrespect for the public, who is there to be served, have all taken their toll.

Years have passed, no remedial action has been taken and a state of constant regression was witnessed each year. The lack of space in the Court establishment further aggravated the loss of a dignified image so essential for a Court of Law.

In spite of my repeated pleas in public and private to expropriate the then Embassy Theatre, which would have resolved the space problem and ensured a dignified image to the Law Courts, my pleas were never given serious consideration.

Nowadays there is no further distinction between the Superior or High Courts and the Inferior or Magistrates Courts. Magistrates and Adjudicators use Court Halls of the High Court to hear police cases and other small claims. Lawyers and referees have their sittings on benches in the corridor that remind one of the times of Charles Dickens.

The crammed Court Registry has after eight years that it was planned and preparations made, moved into a dignified place occupying the former Valletta Police Station. It is already small and it would soon have to expand to where the Archives are currently housed.

The Court House needs a dignified, distinctive setting, which is not currently there, and any piecemeal expansion into Strait Street will only serve to aggravate this problem. In a matter of 20 years unless the structural problem is resolved and one continues to build higher on the existing building, the Law Courts would have to move somewhere else or be demolished and reconstructed in a manner to suit the times.

In spite of all this, we have been told repeatedly that there is more than enough space, and the problem was with the proper allotment and distribution of the existing halls. This logic has proved miserably wrong.

The recent judicial scandal has alarmed one and all and put in focus our Courts in their entirety. One started to identify and analyse their strengths and weakness. Way back in 1992 and in subsequent years Parliament, on my initiative, amended the Code of Civil Procedure in an attempt to change a culture and a method of hearing court cases piecemeal.

The Commission for the Administration of Justice was created to ensure discipline among the judiciary, removing executive interference as had regularly happened under previous administrations. Unfortunately the commission failed miserably to impose discipline and to ensure that Judges abide by and apply the Code as amended.

No action was ever taken to ensure that the behaviour of some judges and magistrates on the Bench conformed with what dignity dictates, and some still sip cups of coffee while hearing a case, besides adopting other unbecoming behaviour in the courtroom.

No system was imposed to ensure as much uniformity as possible in judgments and convictions. No action was taken to ensure that judges and magistrates set the right example and start hearing court cases on time, thereby respecting the public, who are expected to be there on time.

No action was ever taken against anybody for breach of the Code of Ethics. The President of the Court of Appeal was granted powers, formerly exercised by the Minister of Justice, not only to further guarantee judicial independence but also to raise the all-round standards of the Bench, to those of the old school.

The system of Judges' Assistants was introduced in my time as minister and was based on the American model but this was unfortunately bastardised on implementation. The Judges' Assistants, who were envisaged to be appointed full time from judge-material lawyers, were intended to participate with the presiding judge in the hearing of the cases, and would also hear evidence even on their own.

However, they have become a very poor substitute for the former legal referees. Part-time lawyers or lawyers of no particular calibre were appointed with the functions of former legal referees just to collate evidence. The judicial assistants were conceived to create a pool of potential future judges, but this is no more possible under the circumstances.

On the contrary, we are very worse off because legal referees used to hear evidence and give an opinion in a report to the Judge, something that the judicial assistants do not do, and were not intended to.

The administrative set-up of the courts is extremely weak. Clerks, court ushers, new marshals, deputy registrars - all have to learn their job through practice by trial and error, without any prior preparation and training. The result is that, even after years of practice, when a difficulty arises which is not run of the mill, the system fails.

Even in the top echelons of the administration, unlike what happened traditionally, I understand that only recently has a lawyer been appointed as director. The last lawyer, Dr Kevin Aquilina, a very efficient, prolific and capable lawyer, left the Law Courts, to join the Broadcasting Authority as its chief executive.

The situation in the administrative set-up should be urgently redressed, and the best possible clerks selected to work in the Courts.

The Deputy Registrars when I graduated as a lawyer were experienced and authoritative top civil servants who proved to be indispensable support to the presiding judges. They all ended their careers after years of service in the Courts, as heads of important government departments. At the time there was continuity in their jobs, with quality being the hallmark, and judges could rely completely on their support.

Our legal aid system is out of touch with the times and needs urgent updating as several people in need do not qualify for legal aid and the system certainly does not give the professional service it should. The needy have no right to choose their lawyer.

In civil matters, where costs are now sky high, we should adopt the British system of legal aid, where the client has the right to choose a lawyer. The situation at present is unfair and people in need do not get efficient, professional service.

Having identified the long-term problems with the court administration and the judiciary, I had in my time as Minister instructed the late Dr Edgar Mizzi to prepare a draft proposal and a bill to address the deteriorating situation at the Courts.

As the obvious problem was lack of proper motivation to attract the right people to the right job, be it administrative or judicial, he advised and prepared a draft bill, which was still under consideration by Cabinet in the time I left the Executive.

He suggested that the administration and the judiciary should be made separate from the Civil Service, as the Judiciary is one of the powers of the state together with the Executive and Legislative. Consequently, he suggested that the conditions affecting judges and magistrates should be equated to those of ministers, if not better, both as regards salaries, pensions, allowances, social standing, etc.

This change would have attracted top-notch, mature lawyers for the post, enabling them to end their successful, prolific legal career as illustrious, prestigious judges and magistrates of the state. Then it will not be difficult to find the right mature, proven, capable, learned and morally ethical lawyers to accept a judicial post.

What is interesting is that the top civil servant advising Government at the time, had agreed with the proposal, in his advice to the prime minister. Similarly, to attract the best possible brains to the administrative set-up, Dr Mizzi suggested that a corporation be set up to administer the Court Registry, assigning officials the title and functions envisaged by the Code of Civil Procedure.

This would have enabled the recruitment of the most suitable, capable persons for the job at the right salary and with appropriate conditions of work. The corporation had to organise ongoing in-house courses and training to enable everyone to appreciate and understand his responsibilities and functions according to law.

Unfortunately this draft bill never reached publication or debate, and we have been going on as before for the past eight years, with deteriorating conditions and the impossibility of recruiting the better qualified people for the job.

Nothing was done in spite of the fact that Courts are considered to be of supreme importance in any civilised, progressive and democratic society, where they should be an indispensable, independent balancing power among the organs of the state.

To best resolve the existing negative, declining state of affairs, a collective effort is to be mounted between the state, lawyers, the judiciary and the administrative officials. They all have to work hard, with determination, efficiency and responsibility, and organise diligently the workings of the Courts without any delay.

The recent crises in the Courts has called into serious question their prestige, credibility, authority, efficiency and performance, and this has to be counteracted immediately with a studied transparent and precise plan which one has to ensure will be strictly adhered to.

I still advocate that the bill prepared by Dr Mizzi be passed through parliament, upgraded if need be. Only in that way will dignity and credibility be restored, by attracting the right people for the job.

The new chief justice has the experience, capability, discipline and righteousness that are so indispensable for a Court of Law. I am sure he will be up to the huge task ahead of him to rebuild the dignity, trust, authority, confidence and efficiency that are expected of any Court.

He has to ensure that his fellow judges and magistrates uphold and apply the law of procedure, start sittings on time at least out of respect to the public and to look punctual and efficient, hear cases with the least possible delay by guiding witnesses in their evidence to just what is relevant to the matter at issue and pass judgment on due date without interminable adjournments.

Furthermore he must ensure that judges' behaviour on the Bench upholds the image of dignity and respect that should prevail in any Court of Law.

Lawyers, in turn, should organise themselves in firms or associations to ensure that a lawyer is always available to attend a case that is called and is about to be heard. They have to be very ethical in their approach, and have to prepare themselves well, and in a professional manner for the case to help the Court as a true amicus curiae and to give the client the best possible professional service.

The Commission for the Administration of Justice should play its proper supervisory part with efficiency to ensure that the administration of justice in all its sectors is well oiled and working, as it should. Governments have to understand that our Courts have an indispensable political and social function and cannot be treated as the Cinderella of the state.

The Courts' needs should always have top priority and litigants should be given constant attention. Government must ensure that the Courts should maintain the necessary prestige and dignity, organisation and efficiency, and be given all necessary funds as behoves such an important power and function of a modern, civilised and democratic state.

Maltese Courts should respect their highest traditions. Let everybody play his part in this process of quick and lasting restoration.