Myth of judicial reform

It is called a ‘judicial reform’ but in reality it is no more than an attempt to justify an improvement in the working conditions of the judiciary. I am not saying that the judiciary is not entitled to a better salary and pension, far from it. What I am saying is that it is not fair to give the impression to the public that come October the judicial system will have improved.

It is useless to tell judges and magistrates to work longer hours when they are not given the tools to do so or a decent office to start with- Anna Mallia

The pretext – that if the judiciary holds sessions in the afternoon it will reduce the case load – is a myth. If the Minister of Justice has a problem keeping the staff at the courts until 1.30 p.m. in summer and 5.15 p.m. in winter, it is not fair to barter better conditions of work with afternoon court sittings.

The public may not know it but our law of procedure and subsidiary legislation, among which legal notice 279/2008 as subsequently amended, provides for a number of ways to decide court cases without delay. However, as the Italians say, “tra il dire e il fare c’e’ un mare”! It is easy to impose deadlines and introduce new procedures on paper, but no reform can be effective without producing the necessary logistics and infrastructure.

It is useless to tell judges and magistrates to work longer hours when they are not given the tools to do so or a decent office to start with. Every court sitting demands a hall, a judge or magistrate, a clerk, a messenger, a technician when evidence is recorded, and co-ordination between the registry of the courts and the office of the judge or magistrate.

Lately we have been witnessing a number of unnecessary delays.

These are caused by the inefficiency of the court registry, where the staff is not properly trained, by the cumbersome process of notification, by the stultification of the process in the appeals stage and by the process whereby the judiciary makes appointments.

Sometimes a case cannot be held because the records have been mislaid. Nobody is brought to book in cases like this and the party seeking justice has to search every corner of the courts to trace the records, meaning that court action comes to a standstill.

Most of the staff fail to check whether there is any follow-up needed before they shelf the records of the case for the date of the next hearing.

The judges and magistrates cannot appoint the next hearing at a closer date because the records of the case take more than 24 hours to reach the court registry, it takes another 24 hours by the time the judge authorises the summoning, another two days for this to reach the court marshals, and by the time the pink card of the riferta is inserted in the court records another four weeks will have elapsed, to say the least.

There is a blatant abuse in the legal aid system. I see a number of cases being instituted because they are free of charge and for no other reason. In addition, when the beneficiaries of legal aid money are awarded property, the law does not require that they refund the court expenses and the cost of the legal services provided free by the taxpayer. In criminal cases, I cannot understand how legal aid is provided to parties who can afford to pay for their bail and not for the lawyer.

The party winning the court case is being penalised unnecessarily. This by being forced to pay for the registry costs even though the case is still sub judice, awaiting to be appointed before the Court of Appeal, and by having to beg for a copy of the judgment and for the final bill of costs to be issued by the Court Registrar.

The procedure of calling the case “rikors ġuramentat”, or sworn application, is creating havoc and confusion because the staff is not in a position to decipher what forms part of the court case and what does not. A case in point is the filing of applications for the revocation of a precautionary warrant. Such applications are inserted in the records of the case when the correct procedure is that they ought to be dealt with in a separate file.

There is a delay in the appointment of appeals. Suffice it to say that the Court of Appeal is only now, in August 2012, appointing appeals which were filed in 2010. In this case the appellate court works in the afternoon as well and still it cannot cope with the caseload. I am sure there must be a way to assist the Court of Appeal in both the Inferior and the Superior courts so that the public may get a better perception of the system.

The appointment of judges and magistrates seems to be primarily based on whether they are in the good books of the executive and not on merit. It is useless to have a good track record in your career as a lawyer or magistrate because what counts is not meritocracy but other factors.

The system rewards the lazy: the legislator allows the Chief Justice to change the magistrate or the judge who has a case that has been pending for three or more years or if a judgment has been awaited for 18 months or more.

If the Minister of Justice wants to improve the working conditions of the members of the judiciary, let him go ahead, but this should not be done under the pretext of a so-called judicial reform.

There will be no reform until the system is revamped. This will be done through an exercise in logistics, by recognising that the staff working at the courts are not just civil servants but also para-legal staff, and by providing the necessary tools for the public to get a good return for their money.

After all, the courts are financed by the public, and they do expect a good return.