'Measure to hasten court procedures may be counter productive'

A proposed law which will make it possible for a party to a delayed court case to request the Chief Justice to replace the judge has raised concern on both sides of the House of Representatives.

The provision, which forms part of a Bill to amend the Code of Organisation and Civil Procedure, will enable either party to request the replacement of the judge when a case would have been pending before the courts for three years or would have been awaiting judgment for 18 months. The decision by the Chief Justice will be taken in camera and will be final.

Nationalist MP Mario de Marco said he had reservations about this proposal. He could understand the good intentions of the mover but he feared that this clause could create rather than solve problems. One of the most important principles in court was that of hearing evidence viva voce. When a case was transferred to another judge, the new judge would have to give judgement without having had the opportunity to hear the evidence directly from the witness, he said.

Furthermore, there could be abuse because the request could be made not only by the party which had lodged the case - and had an interest in its early conclusion - but even by the defence. There, therefore, existed the risk of this facility being used to complicate matters and actually prolong the procedures as the new judge would have to review everything.

Dr de Marco observed that everyone had a right to a fair hearing within a reasonable time and when this did not happen, the people could seek a remedy in terms of the Constitution.

He felt, therefore, that there should be self-discipline and auto-regulation by judges. If anything, the Commission for the Administration of Justice should be given greater powers to act as a watchdog over those judges who did not conclude cases before them within a reasonable time.

Gavin Gulia (MLP) said that although he agreed that something had to be done about cases pending before the courts for more than three years, he did not agree that a party could request the Chief Justice to transfer the case to another judge. That would mean penalising the judges who worked hard and cleared their backlog. He also did not agreed that a party could file this request without the need for a lawyer. The lawyer was there to advise the client and also to lead the client to respect the administration of justice. The system could lead to abuse by those interested in delaying proceedings.

Furthermore, the system could lead to fresh delays since the judge assuming a case from another judge would have to go over the evidence all over again. The important element of hearing evidence in person would be lost. Indeed, the case would be further lengthened if the new judge insisted on rehearing important evidence all over again, for this reason.

José Herrera (MLP) said it was disgusting how some judges repeatedly put off cases or judgments, but he did not agree with the way the minister was addressing the problem. What criteria would the Chief Justice apply when he received a request to replace a judge presiding over a case that had taken too long to be decided? And wasn't there a risk that a lawyer might deliberately delay proceedings so that the judge could then be replaced? This could also impinge on the separation of powers.

Justice Minister Tonio Borg said he believed most cases should not take more than three years in court.

While there were factors over which he, as minister, had no control, there were other areas where legislative measures could be taken to get things moving. For it was unacceptable that there were people who had been awaiting a judgment for over three years, in some cases for much more. He knew of a case where a person had awaiting judgment for eight years. This measure would now enable these people to request the Chief Justice to assign the case to another judge.

Dr Borg denied that this Bill somehow impinged on the separation of powers between the executive and the judiciary. It was this government which had separated those powers. Before 1993 the Minister of Justice had the power to assign judges as he pleased. That was changed and the minister had to act on the advice of the Chief Justice or explain his reasons not to. So did it make much of a difference that the Chief Justice could transfer a judge from one case to another in particular instances when a case was delayed?

Parliamentary Secretary Carmelo Mifsud Bonnici, who is piloting the Bill, said in his winding up that he appreciated the comments made.

But this was a battle against the legal mentality that every case should take longer than three years. Every case could be decided within three years and he was sure that a judge could ensure that proceedings would not take any longer.

Indeed, official figures showed that over the past two years, nearly 70 per cent of new cases, including some which were very complicated, had already been decided.

The work that was being done was therefore bearing fruit. But there still remained the problem of those people complaining they had been awaiting sentence for five years, or cases pending before the courts for up to 20 years. It was no consolation to tell these people that they were not alone. This Bill gave them an instrument to possibly see movement in cases which had been jammed for years.

Earlier in the debate Dr Gulia said that despite the good intentions behind the amendments, he was sceptical that they would bear the desired fruit.

If anything, the fact that this Bill was being moved proved that other reforms in the administration of justice had not succeeded. While all litigation up to a few years ago was handled by the courts, the ordinary courts had since been divested of their exclusive competence and a myriad of boards, tribunals and centres had been created. He did not think this was helping the administration of justice. Instead of the number of cases having been reduced, they had been shifted from the ordinary courts to other institutions. What the opposition agreed about was that sections of the ordinary courts specialised on particular areas.

The government knew that despite its reforms, it had not managed to speed up the administration of justice, especially in the Superior Courts. This Bill, therefore, represented one last, and draconian attempt at addressing the delays by making it possible for cases to be transferred from one judge to another. But this was a feature which reflected lack of confidence in judges.

Referring to the system introduced last year for the recovery of uncontested debts, Dr Gulia warned that it was dangerous to raise the capping to Lm10,000 from Lm5,000.

The defects of the system needed to be eliminated first. In the ordinary courts, the judge asked creditors for proof of their claim. The new system did not include this requirement, and thus an official letter making a claim for payment of debt became an executive title if the debtor was not able to contest it on time.

It was at least positive that in terms of the Bill, an application filed by the debtor to rescind executive title obtained under this procedure would be appointed for hearing within two weeks.

Dr Herrera said he objected to amendments which gave the Chief Justice some of the powers of the Minister of Justice. It was generally a mistake to change the role of the Chief Justice.

The Chief Justice was a judge whose role was to preside over the Court of Appeal and the Constitutional Court. Over the past few years, however, the Chief Justice had been assuming several administrative functions, which, he felt, was a mistake as it went against the concept of separation of powers. A distinction had to be made between the powers of the executive and those of the judiciary.

The Lord High Chancellor of the UK used to operate in this way too, but lessons had been learnt and the system there was changed.

Dr Herrera observed that the Bill provided that the Chief Justice could designate a senior magistrate. But why did the senior magistrate have to be appointed by the Chief Justice? And would the choice be made on the basis of seniority? He felt that the choice should be made in this way, so as not to discourage anyone and not to open doors to nepotism.

The Bill also spoke about the designation of a Deputy Chief Justice.

This position existed in the past with the last Deputy Chief Justice being Joseph Flores. He was not against having a hierchy among judges, but not for the purposes of administration among the judges.

Furthermore one also needed to remember how a Nationalist government had introduced an amendment to the Constitution providing that if the Constitutional Court was not appointed, the most "senior" judge would automatically take over. The measure had only been used once, by his father in the schools dispute.

He feared that the amendment being moved in this Bill was not in line with that clause of the Constitution in terms of what constituted seniority. Would it be length of service?

Dr Herrera said the new system for recovery of uncontested debt was working better than he had originally thought it would but one had to be very cautious about raising the cap on claims in view of the nature of the procedures. He felt that if the cap was to be raised that should only be done for certain cases not to risk injustices.

Turning to the clause of the Bill empowering the Rule-Making Board to remove the need for motivation of certain court judgments, Dr Herrera said that in the UK when judges came to give judgements, they would listen to the parties, understand the case and give their judgment there and then without having to write it down. Such a system could be started immediately in civil cases in the inferior courts, as was done sometimes in the criminal court. He believed this was a good amendment.

He, however, disagreed that the Bill was laying down that lawyers should perform two weeks of work voluntarily. It was not that he did not agree that lawyers should volunteer their services sometimes, but having a law saying that a list would be drawn up naming lawyers who had to work free of charge did not make sense. Clients risked not being given a good service if there was an imposition on the lawyers. What was needed was an overhaul of the legal aid system. The courts should have the power to chose whoever they wanted or the party should be given the right to chose. And lawyers should be paid adequately for legal aid services.

Dr Borg said he welcomed Dr Herrera's positive comments about the procedure for the recovery of uncontested debt. Some said this procedure lacked safeguards, yet it was the same procedure used in the EU. And there were fewer safeguards in so called guillotine cases where decisions were even taken when a party did not turn up. The minister denied that these amendments had been moved because other reforms had failed, as claimed by Dr Gulia.

There was no denying, he said, that the caseload of the law courts and the various tribunals had been reduced. However, more amendments were being presented with the aim of further reducing the number. These amendments were first announced nearly two years ago, so it was not a question of reforms having failed.

Dr de Marco said it was good that one of the magistrates would be appointed Senior Magistrate, giving magistrates a point of reference. The Bill, however, did not say anything of how the choice was to be made, such as whether it was to be the person who would have been magistrate for longest. Neither did the Bill specify the role of the Senior Magistrate.

Still, the fact that the government was proposing the designation of a Senior Magistrate would help give greater, and deserved, dignity to the college of magistrates. It would give the magistrates a focus to their internal meetings with the Chief Justice and in their meetings with the public.

The fact that this Bill was raising the competence of magistrates to cases having a value of Lm10,000 was an expression of confidence in the magistrates. The magistrates, however, also needed to have better tools at their disposal to help them function more efficiently. For example, there needed to be a pool of judicial assistants to help them in the preparation of cases. This would be more importance now that the competence of the courts was being doubled and greater preparation was needed. Another amendment would change the composition of the Rule Making Board. The difference was that the judge nominated to the board would be ordinarily sitting in the Court of Appeal.

He was not yet convinced as to why the change was being made and the idea behind it should be explained better. His suggestion was for the judge to be chosen from those sitting on the Appeals Court, the Criminal Court and the Criminal Appeals Court.

He also wished to see more rules being made by this board because there were too many divergences in the procedures followed by judges and magistrates and there was a need for uniformity. That included the way cases were appointed and called, creating problems for lawyers and witnesses.

Dr de Marco asked why, in terms of the Bill, warrants for lawyers would henceforth be issued by the government, rather than the President.

Turning to legal aid, he too called for the system to be thoroughly reviewed. The drawing up of lists of lawyers to provide legal aid had been a source of criticism because of the way lawyers were chosen. But there was also an issue over the fact that lawyers providing legal aid were under-paid.

In the interests of justice, the list of legal aid should include experienced lawyers who should be adequately compensated for their service.

It was good, that through this Bill, the minister would henceforth raw up the list of legal aid lawyers in consultation with the Chamber of Advocates and the Chamber of Legal Procurators.

Referring to amendments on the procedure for the collection of uncontested debts, Dr deMarco said he felt that any further raising of the cap on claims should, he felt, be made following debate in Parliament, rather than through legal notice.

Dr de Marco said that this was a positive Bill which should, however, be refined.

Winding up, Dr Mifsud Bonnici said that far from eroding the independence of the judiciary, as Dr Herrera had implied, this Bill actually strengthened it.

This Bill was removing from the minister what were seen as administrative duties but which actually involved judicial activity. Decisions which to date were exercised by the minister on the advice of the Chief Justice would now be decided directly by the Chief Justice. There was nothing unconstitutional in this.

Dr Mifsud Bonnici said this Bill was part of a process of reform which started years ago and which would continue with proposals for the setting up of an Administrative Tribunal.

The parliamentary secretary pointed out that although judiciary work last year increased by 60 per cent, the backlog at the courts dropped by 20 per cent, due, in no small measure, to the reforms which had been carried out.