The Maltese legal profession is deprived of gaining easy access to a complete law report on the Justice Ministry’s website. This is not the situation in several other countries who have in print and, lately, on the internet, the judgments of their courts and tribunals.
Were it not for advancements in technology, we would not have enjoyed – since 2002 – the judgments of the courts of justice and other tribunals online at the site run by the Justice Ministry, at least in so far as those judgments may be published in their entirety or in edited form. There are other internet sites which publish decisions by various tribunals such as those related to planning and financial services.
The Justice Ministry’s website also offers an important search facility which renders research less time-consuming. However, although more than 14 years have passed since the case law website was launched, there are still gaps which need to be addressed so that we, as a country, can boast of a complete law report.
This has to be contrasted with the laws of Malta on the same ministry website which are continuously updated and where government is providing an excellent service to members of the legal profession, the judiciary, academics, law students and the public at large. Moreover, not all judgments are placed on this website and court decrees are more often than not unavailable for pursuing.
Law reporting is not only important for the legal profession and for students studying law at the Faculty of Laws of the University of Malta. As all people should know the law – for, after all, the law is addressed to the citizenry and not only to the members of the legal profession – it is of utmost importance that landmark judgments delivered by our courts and tribunals are made accessible to everyone. There is a wealth of doctrine contained in these judgments which, nonetheless, are not easily accessible and end up being lost over the passage of time even if they are still relevant to the present day.
One source of information, apart from the ministry’s website, is newspapers that publish, normally on a weekly basis, a law report. In the case of the Times of Malta, a page every Monday is reserved for this purpose. Nevertheless, praiseworthy as it might be to publish a weekly law report in newspapers, this is not sufficient to make court and tribunal decisions accessible to the citizenry because these law reports are very limited in nature.
The time is ripe for government to draw up a strategy to address the missing gaps in our case law to render it accessible over the internet
There are a number of gaps in our law reports which require addressing in relation to old judgments of our country of the 19th century and early 20th century which remain valid to the present time. And I am not referring here to the wealth of decisions held by the legal documentation section of the National Archives at the Banca Giuratale, Mdina, which remain largely untapped.
If a short survey is carried out as to where the courts and tribunals decisions can be accessed, the following sources come to mind: from 2002 onward, the Justice Ministry website; and prior to 2002, there are diverse sources. These comprise: the official government-published Collection of Decisions of the Superior Courts of Malta; decisions of the Inferior Courts and tribunals published by Legal Publishing Enterprises; weekly summaries in newspapers; and publications which consist of a compendium of decisions arranged either by subject-matter or by the court or tribunal delivering them.
Publications like those of William Harding, Wallace Gulia, Oliver Gulia, Joseph Filletti, Ian Refalo, Philip Farrugia Randon, etc. as well as synopses of judgments published in The Law Journal, Id-Dritt, De Jure and other local legal publications become relevant in the absence of an inaccessible law report.
Yet all these publications remain nothing but a selection of decided cases. Innumerable decisions – not necessarily run-of-the-mill ones – are not even published and therefore one cannot really gauge their academic worth. They end up lost in the annals of history. The court registries house decisions from 1900 till to date (though not necessarily at the courthouse in Republic Street, Valletta). The National Archives at Mdina houses older judgments dating back to the period of the Knights of St John.
In order to render accessible this wealth of knowledge, it is indispensable that all court and tribunal judgments are scanned and placed on line. For instance, the decisions of the Employment Commission (which are very few in number when compared to those of the Constitutional Court) are not even available online and they do not pre-date 1974.
Decisions of the courts in Gozo prior to 2002, so far as I am aware, have never been published and therefore members of the legal profession in Malta are not privy to this vast literature.
Although years ago, the government did embark upon making the collection of decisions of the superior courts available online, strangely not all the volumes were scanned.
Today we do have the technology to make all this information available and I think that it is time to exploit it.
Foreign courts, where Malta was or is a party to proceedings such as the European Court of Human Rights, the Court of Justice of the European Union and the Judicial Committee of the Privy Council, all have their Malta cases available online.
The time is ripe for government to draw up a strategy to address the missing gaps in our case law to render it accessible over the internet.
Essentially it should bring together the Courts Division, the National Archives, MITA and representatives of other internet sites which publish tribunal decisions to identify the missing judgments, scan them and place them on the Justice Ministry’s website.
Ideally there should be only one such site where all judgments of all courts and tribunals are available in the same way that the government has only one site where all ministries, departments and statutory bodies upload consultation documents. Even the registers where these judgments are indexed should be scanned and uploaded on the internet as these are a useful tool for researchers.
As a second and subsequent step, the landmark judgments and decisions of our courts and tribunals should be translated into English to make them accessible to non-Maltese speaking researchers.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.