Fundamental imperatives

The Malta Constitution, which is the supreme law of Malta, makes us proud of its limpid language, carefully crafted to protect the fundamental rights and freedoms of the individual. On paper, it guarantees, among other things, due protection of the life, liberty and security of the person and the protection of the law.

One of the relevant provisions enshrined in the Constitution states that "whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law".

This constitutional imperative is, often and extensively enough, being honored mainly in the breach. The gravity of the situation has been highlighted by a ruling of the European Court of Human Rights, which found that Meinrad Calleja's right to liberty and security had been breached because the time he spent in preventive custody, awaiting trial (four years,10 months and 20 days), on a charge of which he was acquitted, was not justified.

Having considered all the circumstances of the case, the Court further found that the duration of the proceedings (seven years, eight months and 17 days) was excessive, and failed to meet the "reasonable time" requirement.

Mr Calleja, who had the necessary resources to stand up for his rights before the European Court, was awarded €5,000 for pecuniary damages and €4,832 for costs and expenses incurred. The strictly legal implications of that European Court decision is best left to the legal experts. The only voice heard on the matter (at that time) was that of the Attorney General, who reportedly told l'Orizzont (April 12, 2005) that the European Court "sent a clear message to the Maltese courts and to the government who have to pay for this exaggerated delay".

The issue is not of exclusive interest to the lawyers and constitutional experts. It is of vital interest to the average citizen who is concerned about his rights and liberty.

Statistics published ever since indicate long lists of cases pending before the courts, an impressive number of them pending for three years or more. These figures excluded the number of trials to be tried by jury and others are also pending before the Appeal Courts.

There are very many reasons which explain why certain court cases could be time-consuming - and they are not confined to instances where lawyers or clients excel in their skills in the art of litigation. The burning issue is the unreasonable delay and the apparent inability of the powers-that-be to give flesh to the solemn guarantees enshrined in the Constitution.

It is an uncontested fact that the judiciary is overworked. The statistics give an indication of the magnitude of the workload.

I recall the Chief Justice referring to the problem of "real time justice" in the course of a newspaper interview (The Times, February 5, 2005) and pointing to "the accumulated backlog". In his view, this was "due principally to the fact that, for years, no one - executive, legislative, judiciary - did anything to apply the concept of "efficiency" to the administration of justice.

The result was some amendments to the Code of Civil Procedure (and even some in the field of Criminal Procedure) which not only proved to be unworkable but had the opposite effect to that desired.

The Chief Justice once suggested that retired judges might be asked to step into the breach, at least until the backlog is disposed of. The proposal was not taken up. The Commission for the Administration of Justice advanced the same proposal in its fourth report, with the same result.

From time to time, there have been unsubstantiated suggestions, that the odd member of the judiciary might not have been as assiduous or as productive as his colleagues, with the implication that the same individual or individuals are deliberately not doing their best, or are wasting their energy elsewhere.

Such specious charges have never been corroborated and, if only for this reason, do not merit attention.

The fact remains that the courts are not delivering justice in reasonable time in a significant number of cases, and that the problem has been brought to "international" attention without being redressed.

The independence of an independent judiciary is sine qua non to democracy. The courts should not be harassed in the exercise of their duty. Their duty is to adjudicate impartially and without interference according to the law.

The question that arises is whether or not the courts are accountable for their administrative and personal performance, i.e. whether certain members of the judiciary are indifferent and whether or not they manifestly pull their weight, like the rest of their colleagues. And, if not, who is there to call the shots.

It would appear that the time is overdue for the Commission for the Administration of Justice to carry out a critical and detailed review of the way it is performing its constitutional assignment. One of its constitutional functions is to keep an oversight on the operation of all superior and inferior courts and to submit any recommendations, or to propose such remedies as it deems necessary or desirable, to the responsible minister for a more efficient administration of justice.

The Commission is also empowered to advise the Minister of Justice on all matters that have to do with the organisation of the administration of justice.

It may very well be that the Commission for the Administration of Justice has taken a number of initiatives in this direction in the past. If it did, it has not come round to suggest solutions that would effectively protect the citizen from preventive arrest of grossly exaggerated duration. Neither has it delivered in terms of ensuring a fair hearing in reasonable time, in the clamorous case that was redressed only after reference to the European Court of Justice, or ever since.

The resulting situation merits serious public debate without the distractions of the media circus.

jgv@onvol.net