Herrera views bill as being "dangerous and unconstitutional"

Labour MP Jose Herrera said yesterday that a bill to amend the Code of Organisation and Civil Procedure was dangerous and un-constitutional and he would be prepared to challenge it before the Constitutional Court.

The bill provides that in actions for the recovery of a debt which does not exceed Lm5,000 the creditor shall file an official letter to be served upon the debtor and where the debtor does not oppose the claim within 30 days, the letter shall have the same effect as a court judgment.

It also provides that traffic disputes which do not involve personal injury and do not exceed Lm5,000 will be settled by mandatory arbitration before the Arbitration Centre.

In a speech characterised by interruptions and off-microphone remarks across the floor, Dr Herrera said he had serious reservations on this bill and viewed parts of it as being unconstitutional. Indeed, as soon as he was involved in a case falling within its provisions, he would challenge this bill before the Constitutional Court and, if necessary even go before the European Human Rights Court in Strasbourg.

Aspects of this bill, he said, were dangerous as they interfered in the separation of powers and weakened long established judicial proceedings.

Unfortunately, despite criticism, the minister of justice was being stubborn. He was not holding proper consultations and making radical reforms which attacked judicial proceedings used for centuries.

Dr Herrera said he had met the president of the Chamber of Advocates, Robert Mangion, who told him that the Chamber had commissioned two reports from independent experts on the implications of this bill.

The chamber had told Parliamentary Secretary Carmelo Mifsud Bonnici about the drafting of the reports and the parliamentary secretary had, basically, replied that the Chamber only had a week to produce them before the bill became law.

This, Dr Herrera said, was arrogance by the government over a very sensitive and delicate subject.

Dr Herrera said the provisions on mandatory arbitration did not make sense. To say that there would be "mandatory arbitration" was a misnomer and a legal stupidity. Recourse to arbitration had to be agreed voluntarily between the parties.

This bill was dangerous because it was effectively creating a system which would operate in parallel with the courts and the Minister of Justice could direct cases from the courts constituted in terms of the constitution, to a structure which operated in a casual manner and without a structured way.

On the pretext that some judges were not performing as they should, the government was dismantling the courts.

Dr Herrera said that rather than "mandatory" arbitration, what the government needed to do was create the environment where the people voluntarily agreed to take their case for arbitration. Unfortunately, the culture of arbitration before the centre had not taken root.

Dr Herrera observed that 90 per cent of traffic cases with a value of under Lm5,000 were currently heard by the Small Claims Tribunal. Thus cases before the tribunal would now end before the Arbitration Centre. This was not the way to handle the administration of justice.

The constitution laid down there should be a judicial organ and laid down who should judge the people, establish case law and interpret the laws. Interpretation of the laws could not be carried out in a casual way in an arbitration centre.

One could, in a worst case scenario, appeal decisions of the Small Claims Tribunal on points of law before a court. This was not possible in cases before the Arbitration Centre.

Dr Herrera said he also had reservations on the aspects of the bill dealing with bills of exchange and the recovery of debts although he agreed that in some aspects, the amendments were a step forward.

Clearly however, particularly in the case of the latter, better safeguards were needed. He did not agree with the proposed procedure when the amount being claimed was not liquid and certain. He also felt that the procedure as proposed could give rise to abuse, particularly in the way a claim was calculated.

Dr Borg pointed out that at present, when a person did not appear for summons, he lost his case.

Dr Herrera said that cases were lost on the basis of a decision by a judge and not automatically and a judge could still request evidence from the person making his claim.

Concluding, Dr Herrera urged the government to put off this debate to after the summer recess and hold consultations, involving the opposition, so that the provisions of the bill could be fine tuned.

Other speakers will be reported tomorrow.