Assessing the judicial performance

I followed with interest the annual report of the Commission for the Administration of Justice. The commission, which is spearheaded by the President and the Chief Justice, has come up with a number of recommendations aimed at expediting judicial proceedings. In my opinion this is a very laudable exercise.

Sadly, it seems that notwithstanding the substantial reforms that have been made with regard to judicial proceedings and the increase in the members of the judiciary, still the endemic problem of a substantial backlog of cases persists. The answer to this, however, is definitely not the one which has been constantly expounded to by the Minister of Justice and his Parliamentary Secretary.

The ministry, in order to reduce pending cases, has come up with a puerile solution. The government has expressed its intention to limit the jurisdiction of the ordinary courts by introducing so-called forced arbitration, create ad hoc tribunals and increase the competence of the Small Claims Tribunals in an exaggerated fashion.

Undoubtedly these proposals are totally unacceptable in a democratic state. Such reforms will greatly diminish the stature of the judicial organ of state. Furthermore, it is anti-constitutional to deny citizens the right of access before the courts. It is all well and good to introduce and encourage alternative modes of settling disputes. These, however, must always remain optional.

Furthermore, it is ridiculous to keep expanding the competence of the Small Claims Tribunals since by doing so we are circumventing the dispositions of our Constitution which lays down in black and white the criteria of how members of the judiciary are to be appointed.

Slowly but surely the chairmen of the Small Claims Tribunals are being attributed the powers of the ordinary members of the judiciary and this without the safeguards contemplated in our Constitution. This is a very dangerous practice indeed. The commission has come up with a far more reasonable and acceptable solution. It has been suggested that in order to tackle the persisting backlog, the number of judges will be increased for a period of time.

It has also been suggested that the retirement age of the members of our judiciary should be increased. I fully adhere to these recommendations. In fact I had suggested in parliament that the retirement age of the members of the bench should be extended but my suggestion had found strong opposition from the then Minister of Justice Austin Gatt.

Hopefully, now after the recommendations of the commission this issue could be reconsidered more favourably. In this respect it would be perhaps opportune for the retirement age of our magistrates to go up to 65 while that of our judges should go up to age 70.

More often than not the cream of the legal profession are senior lawyers who would be in their late 50s and, therefore, early retirement automatically precludes the appointment of such persons to the bench to the detriment of the better administration of justice. This seems to be the general trend in most countries. In the UK, for example, judges retire at 75, in Italy senior judges retire at 70 while members of the European Court of Justice must not be over the age of 75.

Another suggestion made by the commission is also worth implementing. It has been suggested that in this day and age it is more practical for judgments to be brief and to the point since this would prove to be a more expeditious way to deliver judgments.

In summary proceeding in the Magistrates' Court a formula should also be found for judgments to be delivered there and then after the hearing, which is the case in summary criminal proceedings.

The government would do well to take heed of these recommendations and not persist in radical ideas, which could harm irrevocably the traditional notion of the administration of justice.

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