Competing tribunals

In an analysis of the performance of the arbitration centre a few months ago, I had underlined the fact that, to date, the number of cases referred to the centre for arbitration was insignificant and did not justify neither the capital investment nor the recurrent costs involved.

I had even said that perhaps it would have been better for the government to channel a substantial part of the money being spent at this institute to the ordinary courts.

The government's response to such criticism was to declare its intention to pass legislation to coerce litigants in certain instances to refer their disputes to this institute. This is wrong and makes no sense juridically. The very essence of arbitration emanates from the mutual consent of all parties involved in a suit to settle their disputes amicably outside the courts before a chosen arbiter.

Arbitration emanates from a contract agreed upon by the litigants. Therefore, forced arbitration is simply a misnomer. This form of arbitration is no arbitration at all but signifies the creation of a separate judicial institution usurping the ordinary jurisdiction and competence of the judicial organ of state.

Lately, the minister of justice has gone on record declaring that he would soon introduce legislation decreeing that all collision cases involving claims of under Lm5,000, but not dealing with personal injuries, will be dealt with by a kind of forced arbitration before the institute in question. Again, this is not arbitration. The government is here simply creating further ad hoc tribunals.

The minister tries to justify this by stating that the scope behind such reforms is to further reduce the backlog from the ordinary courts. Even here, however, the government's reasoning is fallacious. Over the years the competence of the Small Claims Tribunals has been substantially increased for this very precise reason and today a substantial number of cases which would have ordinarily been tried by the courts are now being heard before adjudicators presiding over these tribunals.

These tribunals are today akin to the justices of the peace on the continent. These have a limited jurisdiction and are still subject to judicial review at an appellate level. However, under no account can these tribunals be construed as forming part of the judiciary but the cases referred to them ease the backlog from the courts. What is incredulous in the government's line of argument emanates from statistics given by the minister with regard to the collision cases in question.

It results that this year only 68 such cases were presented to the Magistrates' Courts in Malta while six such cases were presented to the Magistrates' Courts in Gozo. On the other hand, 303 such cases were presented to the Small Claims Tribunal in Malta and 20 in Gozo. Thus, the reforms being proposed by the government will hardly affect, if at all, the backlog of cases before the courts.

In fact, such reforms will in essence divert cases from the Small Claims Tribunal to new tribunals. To say the least, the logic behind this is bewildering.

We created tribunals to ease the pressure from the ordinary courts. Are we now going to create further tribunals to ease the pressure from the existing ones? Where will this end?

The truth is that it is extremely dangerous and against the spirit of our Constitution to persistently dilute the original jurisdiction of our judiciary because by doing so we reduce its relevance.

It is true that in the new European constitution governments are encouraged to create alternative fora for the resolution of disputes. The same constitution stresses however that such institutions should always be resorted to voluntarily, thereby affirming the individuals' rights to access to the ordinary courts in all instances.

To me the approach being taken by the government is putting in a state of disorder the Maltese traditional notion of the administration of justice.

Dr Herrera is the Labour Party's spokesman on the Central Bank, financial and maritime services, the Malta Stock Exchange and statistics