Parties may request replacement of judges in delayed cases

Parties to a court case pending for three years or more are being empowered under a new law to request the Chief Justice to replace the presiding judge or magistrate.

A similar request may also be made when a case would have been pending for judgment for 18 or more months.

The new procedures are part of a wide-ranging Bill to amend the Code of Organisation and Civil Procedure.

Parliamentary Secretary Carm Mifsud Bonnici, who is piloting the Bill, admitted before Parliament yesterday that the government had faced some criticism of these provisions. Some had argued that there could be instances of judges, for whatever reason, using this facility to transfer their cases to others.

But what interested the government most was that the people rightly expected justice within a reasonable time, and three years were considered as sufficient time for cases to be decided. Indeed, no one had criticised the three-year limit.

Dr Mifsud Bonnici said this Bill also provides for the raising of the competence of the Magistrates' Court in its civil jurisdiction to cases having a value of up to Lm10,000, instead of the current maximum of Lm5,000.

This change followed other reforms which had freed the Magistrates' courts from a large number of cases, notably after the introduction of the procedure where official letters claiming payment for debts would become executive title if they were not contested.

Although that procedure had been severely criticised when it was introduced in the middle of last year, up to 6,000 would have availed themselves of it by the end of this year.

It had been found that only a maximum of 15 per cent of official letters were being contested.

In view of the success of the system, this Bill was now raising the cap on claims for the settlement of debts to Lm10,000 from the current Lm5,000, Dr Mifsud Bonnici said.

Turning to another aspect of the law, Dr Mifsud Bonnici said the setting up of the Family Court in 2003 meant that the presiding judges in that court could specialise in that area.

This concept was now being extended so that two or possibly three judges would be assigned to focus exclusively on cases dealing with property and succession.

This decision had been taken for social reasons since close to a third of court cases touched on property and succession. There were currently 1,400 such cases before the courts, spread over all the judges. Having them considered by two or three judges was expected to lead to faster decision making. This would not only be beneficial to the people but also to the economy since fewer properties would end up being abandoned. The Bill provided that cases relating to the division of property and succession, would, when set for trial, be tried uninterruptedly to a conclusion.

Dr Mifsud Bonnici said that although no commercial or maritime sections of the civil courts was being created for the moment, the fact that some judges would be focused on family matters or property and succession issues meant that most of the cases before the remaining judges would be of a commercial nature, meaning that progress in that area was also to be expected.

The parliamentary secretary said this Bill also included measures to deter the filing of frivolous and vexatious appeals, many of which were eventually abandoned after being appointed.

The code was being amended so that the Court of Appeal or the Constitutional Court may award double costs against the appellant in favour of the respondent. In the case of an appeal from judgments of decrees given in causes initiated by sworn application, security for costs would have to be produced and deposited in court within six months from the date of the notification of the amount to be deposited. If the appeal was to be heard sooner than six months after notification, the deposit would have to be made not later than two days before the date set for the hearing of the appeal.

Dr Mifsud Bonnici said these procedures were expected to reduce the number of cases pending appeal by between 20-30 per cent.

He said that an area of concern was how in the First Hall of the Civil Court, there were between 600-700 cases waiting to be appointed. There was currently no term within which cases had to be appointed. To have cases pending for appointment for a long time created many difficulties, not least that of prescription.

Therefore it had been decided to move an amendment providing that cases would have to be appointed within two months of being filed.

Furthermore, it was being laid down that cases may not be put off for more than two months.

Dr Mifsud Bonnici said this Bill also included amendments dealing with the Rule-making Board which gave the Chief Justice more flexible powers on the assignment of judges. The board may also derogate the need, in some circumstances, for the courts to motivate their judgements, although, as a rule the reasons for all judgements should be explained, Dr Mifsud Bonnici said.

Opposition Justice spokesman Anglu Farrugia said the way developments in the law courts were evolving was worrying. Even a European Commissioner and the Commission for the Administration of Justice had been critical of some reforms, particularly the way how some cases were transferred for mandatory arbitration.

Referring to the official letters for the settlement of debts, Dr Farrugia said the new system still did not include remedies to deter abuse, and there had been cases were innocent persons were saddled with the payment of claims which had nothing to do with. There had been people who could not contest the claims in time for various reasons, such as because they were abroad. This procedure violated the right for a proper and fair hearing. It certainly was not the way how to reduce the court caseload.

That the capping of this procedure was being raised made the situation worse and the opposition would oppose it until the whole procedure was improved.

Dr Farrugia said the way the law courts were administered needed to be improved. Changing the law was important, but that had to be accompanied by a proper working environment. There could not be political discrimination in the way staff were promoted. Workers needed to be respected. There had never been a situation, like the present one, where practically everyone wanted to work elsewhere. There was confusion in many departments and important documents were being lost, mostly because of a lack of manpower or training.

The opposition could not but back procedures aimed at making court procedures more efficient, as long as such changes were well thought out. Clearly some judges or magistrates should not show themselves in public, having cases awaiting judgment for six to eight years. There were people at prison who had been awaiting final judgment for years.

Now the government was saying that when a judgment was pending for 18 months or more, a party may ask the Chief Justice to assign another presiding officer to that case.

But would that mean that the hearing would practically have to start again? What would that mean for the credibility of the law courts? Prudence dictated that a judge who would have heard a case in its entirety should be the one who delivered the sentence.

Dr Farrugia observed that Dr Mifsud Bonnici had said nothing about a clause in the Bill laying down that the President of Malta shall assign duties to the judges. He was not objecting to this as the President was the head of the judiciary. But he well remembered the strong attacks made against the Labour government when it suspended the Constitutional Court. Parliament had to be careful to safeguard the integrity and independence of the courts without any shadow of doubt that there was some form of influence. The Bill laid down that when the Chief Justice re-assigned a case because it would have been pending too long, he would file a report to the Commission for the Administration of Justice. But what could the commission do about it?

Dr Farrugia augured that the new procedures on the hearing of cases on property and succession would work well. It was unacceptable that a huge volume of property was subject to litigation and remained vacant for many years. The Opposition therefore agreed with this section of the Bill, although it disagreed that the Partition of Inheritances Tribunal would be dissolved.

Interjecting, Dr Mifsud Bonnici said cases currently pending before the tribunal would continue to be heard there, but there would then be no further need for it because better procedures were being created.

Referring to the provisions on how cases may be put off, Dr Farrugia said one needed to be careful not to introduce situations where doors were closed, without the possibility of them being reopened, to the detriment of the common man.

Furthermore, he felt that all presiding officers should motivate their sentences in sufficient detail. Judges should also explain their decision on who was to meet court costs.

He also warned that the new procedures on early deposit of security of costs for appeal cases could mean hardship for some people.

Dr Farrugia said that the opposition was again insisting on the intorducion of amendments to the Code to ensure that those who were eligible for legal aid would be able to select the lawyer in whom they had confidence. There were various ways how this could be done. In some countries, for example, lawyers were expected to volunteer work for two weeks per year.

The opposition disagreed with the clause in the Bill providing that companies would not be eligible for legal aid. Companies which were bankrupt should still be able to fight for their rights, Dr Farrugia said.