A judicial cemetery

For the first time in 20 years, that is the period in which I have been practising law, our law courts, especially the superior ones, have gone silent. Nowadays when you attend court and move to the second floor, where our judges preside, no longer will you experience the hassle and bustle of previous years. I remember a time, and this not so long ago, when the superior courts were a hive of activity. Lately, we lawyers are now joking between us that unbelievably but true our courts are beginning to seem like a cemetery. In fact, in the past few months, the corridors of our law courts, especially where the halls of the superior courts are, have practically fallen silent.

The question that arises is whether all this is something positive or otherwise. Surely, however, the parliamentary secretary responsible for justice must be feeling a sense of satisfaction about the whole episode and is happily rubbing his hands. This, after all, has been his declared intention from day one.

In order to deflect as much work as possible from the superior courts, the present administration has embarked on some very radical amendments deeply affecting, among other things, our judicial hierarchy.

Primarily, the competence of the inferior courts, that is the Court of Magistrates, was greatly increased, and this in an exaggerated fashion, in one instance. As a point of interest, for example, when I first started practising law, a magistrate could only deal with civil cases regarding claims of up to the limit of Lm250. Although this limit today might appear ludicrous, increasing this ceiling so quickly to Lm5,000 might appear excessive.

The inferior courts are supposed to treat cases summarily without solemnity. For this reason traditionally these courts were endowed with jurisdiction to deal with minor cases. Claims of up to Lm5,000, when one considers local economics, can hardly be considered as minor. Today, magistrates have basically assumed the role of judges only lacking the solemnity of a superior court. Somehow this does not always feel right.

In the same instance the competence of the small claims tribunals was increased from dealing with money claims of up to Lm100 to a maximum of Lm1,500, thereby in practical terms assuming the traditional role of the Magistrates' Court in civil matters.

It must be pointed out that the government is now proposing to further increase the competence and jurisdiction of the inferior courts up to a limit of Lm8,000, which reform will continue to drastically decrease the number of cases being decided by the superior courts.

The bulk of litigation today and more so in the near future will no longer be conducted before the superior courts which, since time immemorial, has always been the case.

Again with the scope of further reducing the work competence of the judiciary, the government has introduced so-called forced arbitration. This innovative approach in the administration of justice could well be construed at giving leverage to the government to persist in detracting more litigation away from the ordinary courts. These amendments, together with others which give creditors executive titles without the necessity of filing a law suit, will undoubtedly in the near future further greatly reduce judicial litigation.

While some of these reforms would prove positive indeed, others would surely prove to be merely cosmetic, intended basically to enhance statistics while in substance basically deflecting litigation from one forum onto another.

Apart from all this, however, what truly had the greatest impact on the reduction of court cases before the superior courts was the introduction of outrageous new tariffs. These overbearing costs definitely had the effect of deterring individuals from seeking judicial redress. Unfortunately, these new tariffs are not accompanied by concurrent reforms to the legal aid system. The end result of this was that the costs of litigation today are hardly affordable to the common people. This is obviously severely undermining our judicial system because people are being deterred from resorting to the courts simply because of economic constraints.

It is difficult to analyse correctly the reasoning of this present administration in trying so hard to reduce so drastically litigation before the superior courts. It is true that for a long time the superior courts were literally bogged down with a huge backlog of pending cases and that, therefore, certain streaming of cases was indispensable. Here, however, the present administration is taking the easy way out and instead of introducing amendments to further enhance judicial proceedings, or increase the number of judges, it simply eliminates chunks of their competence.

In the circumstances, it would perhaps appear that the government has gone too far. It is important to have a judiciary which is capable of deciding at least as many cases as are filed but the way around this problem is not to circumvent the amount of cases to be filed but rather to increase the members of the bench, something which, for reasons still unknown, the government is not prepared to do.

Thus, for the time being and for their foreseeable future, the only part of the second floor of the court house which will remain bubbly and full of activity will be the Chamber of Advocates itself which will, in turn, in all probability also finally succumb to silence.

Dr Herrera is a Labour member of Parliament.