In preparing for justice reform, there are some fundamental issues that need to be addressed. Some have already featured in the first report of the Justice Reform Commission. The independence of the judiciary needs not only to be preserved but strengthened while the need for methods of supervision and discipline are being considered. Some time back, I had made suggestions in this newspaper on how we can strengthen one angle of this issue by reforming our approach to the retirement of judges and magistrates. I suggested that retired judges should be eligible to constitutionally-designated offices and should not go back into the legal services industry after retirement.
This delicate issue needs to be delicately handled.
Allow me to give some other perspectives on the debate which, so far, may not have been considered.
We need to recognise that the effectiveness of the judicial system affects the country’s economic performance. This is an issue that goes beyond the obvious point relating to delayed payments and enforcements. The evident unwillingness of all governments, for many years, to approach the project, also from this perspective, needs to be addressed.
Malta has changed and it now relies on completely different economic motors, almost always promoted and supported by very focused legislation with particular, and usually innovative, underlying principles. If these are not appreciated by the courts, let alone if they are disregarded completely or misapplied, the country suffers as it threatens the economic project and attractiveness of the country.
The judicial system is part of every economic project - as it is of every social project - and it must perform sensitively to the project assumptions and with high levels of competence and effectiveness.
We may not now have a problem with maritime but we need more focus for investment services, capital markets, insurance, banking, trusts, aviation, gaming and digital/IT services, apart from the general underlying aspects of corporate, taxation and employment legislation, which apply to these new economic sectors.
Speed is critical but so are substantive competencies.
Even casual observation of what is happening in competing jurisdictions overseas will show that the courts and their expertise are among the attractions of a jurisdiction and the opposite is also true.
One cannot but notice the overwhelming importance that criminal law and related issues are given in Parliament, maybe because so many MPs, who are lawyers, practise in that sector.
The same can be said for the justice reform project so far.
I would just like to pass a word for commercial law (and the underlying civil law) and its issues, which need attention. It is commercial law, in all its sectors, which is keeping this country going and growing.
Again related is the approach one adopts to the law of procedure, which often becomes an end in itself rather than a tool for organised management of litigation.
The reform commission is addressing many aspects. We need, however, to consciously adopt a strategic starting point or overarching principle and then be as innovative and creative as possible to the reform of procedural rules.
The dominant principle should be ‘substance over form’ and we must seek to reduce the minefields that may be a pleasure to many lawyers and their clients but are a major deficiency of the system. So let the starting point be amply clear: that procedure is only there to help justice to be achieved and for the process to come to a quick and proper end.
The recent proliferation of human rights contestations against existing and new laws, which sometimes seek to modernize and reform, is a very serious issue which causes major havoc, especially relating to immovable property, which is such an important economic asset. We really need to create an institutional solution for this problem.
I had suggested a Supreme Court so that these kind of issues may be efficiently addressed without unbalancing the whole legal system, which is what we have today with repeated attacks on laws and conflicting decisions of the courts. Any lawyer can promote an argument to contest any law on constitutional grounds and many do. So we need quick and consistent resolution to these kind of issues, with final decisions, constituting binding precedent on lower courts.
Specialization in the legal profession has far outpaced the same within the judiciary and the only way we can address this aspect, which is at the basis of the success of the economic growth of corporate, maritime, gaming, aviation and financial services, is to cater for specialized judges in specialist courts, with a collegial and strategic orientation supporting enhanced learning and competence, which then leads to speedy resolution of issues.
Today, many are exploiting lack of knowledge of specialist laws and that alone is a cause for delay which needs to be recognised as well. We used to see this in maritime cases 30 years ago but, thankfully, that does not happen any longer. The jurisdictional chaos which the existence of a Commercial Court used to created until the Commercial Court was abolished was a well known problem and in all legislation creating new courts we must not allow the same issue to emerge as we have just done on rented property issues, where we have new chaos. There are solutions against this happening and we must embed them consistently in all relevant legislation.
The effectiveness of the judicial system affects the country’s economic performance
As specialists are likely to come from specialized sectors of the profession, the line of thought that only court lawyers should be appointed as judges, because of their specialization in procedure, is a killer. There is no incompatibility between knowledge of the law and knowledge of procedure, or vice versa. All lawyers can become specialists in both substantive law and in procedure, so doors should not be closed to anyone, especially in the short term where education in specialization for judges is something that needs to be enhanced.
Lack of knowledge on procedure is clearly a risk that can cause delay and so, like in everything else, only competent lawyers should be allowed to be judges.
And if this means imposing a longer mentoring and training system on non-court lawyers, that is what we should do, just as we should ensure that judges presiding over specialist disputes have specialist competencies, through experience or extended training.
The approach taken by the commission almost hints at a split in the legal profession and if we do go that way let’s make sure we formalise it and reflect it even in the University education and in the warrant requirements. In this way, at least, we can get a qualitative outcome on all fronts. I don’t see, however, how that solves the need for substantive specialization, which our courts need to have.
Just as we should consider introducing a Director of Public Prosecutions, which would be distinct from the Attorney General, so too should we consider introducing an office for the drafting of legislation, for exactly the same reasons.
The Attorney General is overburdened and we need too many laws, which are increasingly very technical and need specialization. The legal system needs consistency and coordinated development, not to mention the urgent requirement for the updating of laws. This is required to sustain and maintain our incursion into new economic opportunity areas.
We have been failing for too many years in this respect and many very successful laws are crying for revision after a few years of great results. Delegating this function to third parties is a good stop-gap solution but even that needs serious coordination as every new law is intricately linked to others and is only a step in a longer and larger process, which needs continuity. This too has constitutional ramifications and we see how laws are not being changed when courts find them lacking. We cannot afford to maintain the system we have today.
Another very interesting aspect that may be considered is the legal status of what is called an amicus curiae. I have seen this very successfully used in overseas systems and it allows specialist focus groups (usually voluntary organisations like Bar or industry associations) to submit their views on particular points of law in proceedings. This supports the courts with legal research, industry knowledge and impact assessment in relation to the legal issues being debated in any law suit that is of major importance to any sector.
It is at the discretion of the judges, it is no greater cost to the system and ensures that key legal issues, which affect the whole legal, commercial and social system, are not decided on the very limited basis of the interest of the parties to the suit, disregarding the major social, economic or commercial impact on the rest of the country. In the USA, this is one way the courts rise to very specialist levels of knowledge, freely supplied by the interested sectors of society.
Finally, let’s prioritise the law regulating the legal profession as it has become critical on several fronts, not least of which being ethics and discipline of the profession, continuing education (both procedure and substantive law), clients’ accounts and insurance. This is a sensitive service sector like others that needs serious regulation.
May I express gratitude and admiration to the members of the justice reform commission for their hard and diligent work so far and trust that the above suggestions will prove useful to them.
Max Ganado is managing partner of Ganado Advocates.