‘Trust in independence of judiciary at less than half’ (April 12) is sadly most telling. Your editorial (April 1) criticises Magistrate Joe Mifsud for making “misguided recommendations” extraneous to the judiciary’s decision-making role. Add to this, the usurpation by the judges of the legislators’ role – where judges create law contrary to that which is clearly written – and the situation is indeed grave. I refer to a particular lawsuit in which I had an interest.
The judicial dispute referred to the calculation of an invoice issued by the Court Registrar concerning the fees payable to government and to lawyers in connection with two lawsuits. The lawsuits related to the termination of existing lease agreements, with a remaining period of circa 75 years. The facts are undisputed.
The COCP provides that the payment due is a percentage of a total made up of the annual rent multiplied by the remaining number of lease years. In maintenance lawsuits, it is the annual payment multiplied by a maximum of five years; in life usufruct it is the annual payment multiplied by a maximum of 10 years; in ground rent cases it is the annual ground rent, multiplied by the remaining number of years but limited to a maximum of 25 years.
There are two legal maxims involved. When the law is clear there is no room for interpretation – it has to be applied; and the law states what it wants. If it did not say it, it did not want it (ubi voluit dixit).
The law states what it wants. If it did not say it, it did not want it
In a final judgement Court of Appeal (18/2/2016 J. Silvio Camilleri et – no 20/21 - 2004), the tariff drawn by the Court Registrar applicable to the two termination of leases lawsuits was discarded and the rule applicable to ground rents – thus limiting the multiplier by 25 years - was applied. What was legally applicable to ground rent, was applied to rent, when the law did not say so.
The judgement followed, and went contrary to, previous judgements. The two contestations at first instance to the Court Registry’s bills based on the tariff had been heard per J. Tonio Mallia, who (28.4.2005 no 21/2004) decided on the correctness of the tariff in accordance with the clearly worded law, and by J. Caruana Demajo (9.6.2005 – no 20/2004) who decided to the contrary, that the limit of 25 years (as in termination of ground rent) had to apply.
The reasoning was that according to the judge’s subjective opinion the value of ground rent was greater than that of rent and therefore the payment in a rent lawsuit did not merit a higher amount.
The Court of Appeal per J. Vincent Degaetano et (4.7.2008) approved this latter decision. This judgement then underwent retrial proceedings on the basis of wrong application of the law, and on October 6, 2009 the Court of Appeal (J. Alb. Magri et) overturned this decision, deciding that the correct computation was by multiplying the annual rent with the remaining (unlimited) number of years as clearly written in the law.
The original lawsuits (2736/99; 1908/2000) had continued, with a similar process. At appeal stage, judgement (per J. Vincent Degaetano et - 14.5.2010) was delivered repeating its previous decision, but contrary to what was still in vigore per J. Alb. Magri’s retrial decision.
The retrial decision was constitutionally quashed (but that is another story) and the merit referred to the Court of Appeal. The above-said final decision (J. Silvio Camilleri 18.2.2016) was identically based on the second judgement per J. V. DeGaetano 14.5.2010. The strong pleadings raised to the contrary were not even discussed, much less rebutted.
Ironically the judgement stated the judges were not creating law. They were. They were not only creating law, which did not exist and thus making the legislature redundant, but imposing a provision, which the law did not want, and thereby creating an injustice.
This overstepping creates uncertainty both when lawyers tender advice and on the eventual outcome. When a lawsuit is instituted one enters a process governed by the provisions of an express law, and if the judge then interim creates new law the litigant emerges with a law different to that existing when the lawsuit commenced.
With clear-cut facts and clear-cut law, non–application of the law or any addition (or removal) of words or concepts by the judge, creates new law, which is by definition an injustice and which lies within the sole domain of the legislator, after due public debate.
It is not up to the judge to place in lieu of the law, what he thinks to be just.Otherwise there can be as many different subjective applications as there are judges. Ultimately if the judge has a conscience crisis he can resign.
Unless the judges believe in – and abide by - the boundaries of their role, no legislation can safeguard the inroads which the judiciary can effect. This is more worrying than “misguided recommendations it also contributes to lack of trust in the judiciary.
Hugh Peralta is a lawyer.