Chief Justice warns of unconstitutional provisions

Chief Justice Vincent DeGaetano hit out at provisions contained in two legal notices issued earlier this year, saying they could give rise to constitutional issues and may also impinge on the independence of the judiciary.

Speaking at a ceremony marking the opening of the forensic year, the Chief Justice said that some of the provisions in legal notices 138 and 139 of 2004 were completely unacceptable to the judiciary. This was because they could be interpreted as giving the right to the director general of the law courts - "the lunga mano of the Executive" - to interfere in matters affecting judicial procedures and acts. Such a person, as well as other executive officers of the court, should both legally and constitutionally accept orders and directives only from judges, he added.

With such arrangements, the judiciary tended to become more dependant on the Executive, including on matters that could potentially affect the independence of the judiciary when it comes to judicial procedures and acts.

"I do not think the present director general will attempt to interfere where he should not - I think he realises what the consequences will be even if he only tries. However, even the mere possibility that he should try by virtue of the regulations is constitutionally unacceptable," the Chief Justice warned.

He said that this April he had taken up the matter in writing - he did not say whom he had written to.

He also spoke on the nomination of court experts, saying the time had come to review the procedure that laid down the way court experts are appointed in the Magistrates' and Criminal Courts.

"It is not acceptable that experts are nominated in situations when the law clearly says they should not be appointed; neither is it acceptable that they are nominated when they are not strictly needed or that they are appointed on an open ended term that leaves what to do and how much to do up to the expert...

"...the result is that those experts whose services are required and indispensible end up waiting for months, or more, to get paid," he said.

The Chief Justice said that in last year's speech he had pointed out the need for a serious investment in human resources. Although there had been a marginal increase in judicial assistants, there was still a lot of work to be done to increase the efficiency of judiciary teams, especially within the Magistrates' Courts.

For some reason, he said, people who could not properly perform the jobs they were assigned to were kept in the same post. Moreover, the reserve pool of deputy registrars was lacking.

There was also the need for the appointment of a second judge to assist Mr Justice Ray Pace in the Family Court. In order to overcome this need, the Chief Justice said, he had decided to assign a judge from the Civil Court's First Hall to work in the Family Court for a five-month period.

He spoke about the role of the mediator in the Family Court and the setting up of the Mediation Centre which, he hoped, would not turn out to be a white elephant as the Centre of Arbitration had been so far.

He mentioned the introduction of alternative dispute resolution and ex tempore judgements through which, after having heard the evidence and the submissions of both parties, a judge could move on to pass judgment without having to put off the sitting to have the judgment typed out before reading it out in court.

The Chief Justice spoke about the increased burden of magistrates who, as from the beginning of the year, started issuing arrest and search warrants.

This year a magistrate had been appointed to preside over Family Court cases of a criminal nature. The next step was to appoint a magistrate to preside over cases of child abuse and defilement.

Earlier, the president of the Chamber of Advocates, Robert Mangion, said that many lawyers believed there was the need for a law on the legal profession.

The chamber had already brought the subject up with the government and hoped that, by the end of the year, the law would have materialised. Such a law, he said, would not only regulate lawyers but also give a functional structure to the Chamber of Advocates as a regulator within the legal profession.

There was also the need to establish guidelines to regulate a lawyer's attendance when s/he was required in more than one hall at the same time. This problem was made worse in court sittings where all the cases of the day were appointed to be heard at 9 a.m.

Dr Mangion spoke about the murder of lawyer Michael Grech and encouraged the police to continue their investigations into the case.

He spoke about the need to reform the way in which judgments are executed, the role of mediators in the Family Court and the work carried out by the Judical Studies Committee.

Attending the ceremony were President Eddie Fenech Adami, the Parliamentary Secretary in the Justice Ministry, Carmelo Mifsud Bonnici, as well as judges, magistrates, lawyers and members of staff who were present.

In a court room characterised by sober, dark outfits, this year's turnout at the ceremony was lower than in previous years.

In a letter sent to Dr Mangion, Labour MP and lawyer José Herrera provided a possible reason for the poor turnout. In his letter, Dr Herrera said that for the first time in his 18-year legal career he had felt the need to boycott the ceremony as, like other lawyers, he felt that in the past year-and-a-half there had been radical legal amendments that negatively affected the judicial system.