Joseph Muscat rocks the boat

A certain Joseph Muscat certainly did, though this one does not happen to be the Leader of the Opposition.

I am referring to the landmark decision given by the Civil Court in its constitutional jurisdiction, in the names of Joseph Muscat vs The Prime Minister et, decided on May 29. The courts have declared that forced arbitration is a misnomer and that the relative legislation is anti-constitutional.

It should be noted that during the last Legislature there was a heated debate in Parliament on the matter. On the one side, Anġlu Farrugia and myself, and on the other, for the government's side, Carmelo Mifsud Bonnici, argued this concept at length with a certain degree of furore.

The government had been intent at shortening the list of pending court cases at all costs, even if certain measures to be taken would only lead to cosmetic changes. The then minister responsible for justice had come out with the idea of assigning chunks of court litigation in a mandatory fashion to arbitration. From the opposition side, we had argued, for various reasons, that this went against the spirit of the Constitution because, in practice, it would be denying access to the courts, which right is inherent and guaranteed.

The debate revolved around the promulgation of Legal Notice 279 of 2005. This meant that all collision disputes were added to the list of cases to be heard by mandatory arbitration. The government's direction in this sense caused a pandemonium even within legal circles. It was perceived, rightly so, that the government could be thereby encouraged to proceed on assigning evermore litigation forcefully to the Arbitration Centre. The outcome of all this would be the dismantling of the ordinary jurisdiction of the Civil Court.

Notwithstanding the objections of one and all, the government's obstinacy persisted. To date, the list of cases, which are mandatorily assigned to the Arbitration Centre, has grown unproportionately.

It must be remembered that, some months back, the courts had already had occasion to decide similarly (Anthony Grech vs Claire Calleja et, constitutional application decided by Mr Justice Tonio Mallia).

In that case, however, the government was lucky in that the judgment was revoked on a technicality on appeal. The appellate court, however, even then, did not disturb the merits of the judgment. The minister, however, did not take heed and failed to take the essential legislative measures to circumvent drastic consequences. As stated, once again, the courts repeated their stand about the unconstitutionality of the law in question. Undoubtedly, the government will appeal again but this time round it would be, to say the least, wise for the minister to take remedial action.

In the meantime, though this particular judgment has gone practically unnoticed due to the hype of the European parliamentary elections, a crisis is brewing. No doubt, a vacuum exists. There are no fore where to deal with issues regarding collision cases, litigation over condominia and cases against Enemalta, among others. Potential plaintiffs in such cases are, on the one hand, precluded from seeking redress before the courts while, at the same time, they must seriously consider the legality of referring them in a mandatory manner to the Arbitration Centre, whose legitimacy is now in serious doubt.

Worse still, the numerous awards given over the years by the Arbitration Centre could also eventually be challenged not only locally but elsewhere. The consequence of all this could be, to say the least, exasperating. Amazingly, all this notwithstanding, there has been no immediate response from the Ministry of Justice. I feel the matter today has become one of major concern and must be tackled legislatively and administratively, with urgency. Otherwise, there could be a backlash.

These arguments apply similarly to the issue of the right to legal assistance during interrogations. In the Salduz vs Turkey case, the European Court has affirmed and crystallised this right. Furthermore, in the aftermath of this landmark decision, numerous constitutional references have been occasioned, challenging statements made under the prevailing regime. Even here, however, the government has surprisingly failed to react.

The consequences in this regard could be even more far reaching, because more than two-thirds of all criminal convictions are acquired on the bases of statements released by the accused. Already a number of criminal cases have been stultified for this reason, and worse will follow. Here again, the government is also invited to take the bull by the horns and come up with a satisfactory solution or else another Joseph Muscat will rock the boat once again.

Dr Herrera is a Labour member of Parliament.