Judicial crisis, mark two

After the debacle that ensued re­garding the right of access to a lawyer during interrogation, a new one has emerged. It must be said that this could prove to be even more far reaching.

...the minister will face great difficulty in attempting to exonerate himself from political accountability- Josè Herrera

A few years back, in order to facilitate, encourage and expedite arbitration, the Arbitration Centre was launched. Notwithstanding the hype surrounding the launching of this institution, unfortunately, this did not take route. Statistics will show that few and remote were the cases voluntarily referred to this centre. The reason behind this lack of enthusiasm was the fact that arbitration here was too formalised, costly and bureaucratic. On account of this, people seeking to reach out-of-court settlements preferred to adopt the old formula and, when necessary, seek informal arbitration as used to happen before.

Perhaps in order to justify the expense incurred in this investment, by law, certain minor litigation involving disputes such as those regarding the condominium law were to be referred to mandatory arbitration. So far so good and no polemics ensued. This attitude, however, changed drastically once the present Minister of Justice took over the reins of this ministry, first as parliamentary secretary then as minister himself.

The temptation arose to try and find alternative ways in order to diminish the lists of pending cases, perhaps for statistics’ sake. The government came out with the novel idea of assigning in a mandatory fashion chunks of litigation to the arbitration centre, thereby limiting excess to the ordinary courts. The amount of cases so assigned was quite far reaching and it became clear that this would turn out to be the future trend.

This attitude did rock the boat. The minister was forewarned that he was taking a precarious road and that prohibiting access to the courts in this fashion would be anti constitutional.

The spirit of the Constitution makes it amply clear that it is the judicial organ of state that is, as a general rule, empowered to interpret and enforce the laws of the state as elsewhere. The persistent farming out of litigation to the arbitration centre was thereby leading to a parallel court and a different manner of interpreting our laws from that envisaged by the Constitution.

Notwithstanding the criticism made by legal circles and the opposition, the minister pressed on ahead.

Today, cases covered under chapter 387 of the Laws of Malta dealing with mandatory arbitration include disputes regarding condominium issues, cases connected with electricity and water services, any voluntary damage to property involving vehicles and others. As a result of all this, hundreds of cases have now been referred to this centre.

As a result of all this, a number of constitutional cases were presented before the courts intent at obtaining judicial pronouncements declaring the invalidity of such legislation. The Court of First Instance, in three separate judgements, acceded to the requests and upheld the principle that limiting access to the courts in this fashion was tantamount to a breach of the Constitution.

These judicial precedents were duly communicated to Parliament and I myself had occasion to bring same to the attention of the House.

The minister did finally take heed.

It must be stated that the minister, perhaps on the insistence of the opposition, did pass relative amendments thereby abrogating the notion of forced arbitration. This notwithstanding, however, he has to date, as had happened in the mayhem regarding the right to legal assistance during interrogation stage, refrained from implementing the relative amendments.

On September 30, a landmark judgement by the Constitutional Court was delivered in the names H. Vassallo and Sons Limited vs Attorney General. This decision overturned a previous judgement delivered by that same court only a few months before under the presidency of Chief Justice Emeritus Vincent De Gaetano and declared the relevant provisions of law regarding forced arbitration as anti constitutional. The ripple effect of this ruling could prove to be far more overwhelming than those judgements dealing with the right to legal assistance during interrogation stage as already mentioned.

The minister’s hard-headedness has again proved to be disastrous even though, to date, amazingly, everything has been kept on the quiet side. It must be pointed out that there are hundreds of cases pending before the arbitration centre that have been so referred to in a forcible manner and which are now in a state of limbo. Furthermore, it must be declared that numerous persons who need to file cases so far covered by the relevant law have no idea where to go. On top of this, the validity of numerous cases decided in this fashion has yet to be determined.

Notwithstanding all this, and unbelievably so, the ministry has kept its silence and, yet, matters continue to complicate themselves. In this particular instance, I dare say that the minister will face great difficulty in attempting to exonerate himself from political accountability.

Dr Herrera is shadow justice minister.