Although members of the judiciary are very well intentioned to conclude a case as expeditiously as possible, there are certain factors that are beyond their control. Yet, such factors must be addressed because the management of a case does not depend only on the good intentions of the judiciary.
The parties and their legal counsel have to be brought on board. The court administration must also cooperate towards achieving this goal and so must the other two organs of the state: the Legislature and the Executive.
The difficulties that impinge upon good case management have over the years included the following: lack of space in the courthouses; not making the best use of spatial resources; inadequate support staff; insufficient resources; poor conditions of work; unattractive work packages and, worse still, a meagre pension for the judiciary; demotivating factors; increase in workload but no comparable increase in judicial human resources; proliferation of new legislation; lack of recourse to specialised courts; insufficient recourse to alternative means of dispute resolution (arbitration and mediation); delaying tactics by the parties; absence of parties and their advocates during sittings; amending legislation piecemeal in a haphazard way without any forward planning; lack of regulation where needed; lack of judicial manpower plan and judicial succession planning; inadequate courthouse security; judicial vacancies not promptly filled; and making best use of information technology to deliver justice.
The government finds funds for its own projects. But the judiciary do not have the power of the purse. If justice is high on the government’s priorities it should find funds for a new court building. The government has, for instance, found the necessary funds to build a new Parliament for Malta.
But the justice sector has never been on the government’s top list of priorities. For instance, the government could have easily expropriated the adjacent cinema complexes before they were developed into a shopping arcade. That would have been an excellent solution rather than having to develop property in Strait Street.
Moreover, full financial and managerial authority has to be given to the judiciary over the Courts Division so that the judiciary is not dependant on the Executive for human resources or for running the courts. In this way the independence of the judiciary is extended not only insofar as the decision making process is concerned but even to ancillary matters that impinge upon such independence.
This measure should be coupled with a better disciplinary regime for the judiciary to ensure that all its members deliver and behave properly.
The current constitutional judicial impeachment procedure is not proportionate to the infliction of a punishment for a minor disciplinary offence such as punctuality, conduct outside the courtroom, dress, conflicts of interest, putting off cases for judgements with the case being decided five years later, etc.
The removal of the judiciary should be depoliticised and left to the Commission for the Administration of Justice to deal with in a serene fashion.
Access to justice is a human right and so is the hearing and determination of a case within a reasonable time. Case management is essentially a tool to implement this human right. Each time the judiciary fails to make best use of this tool this is tantamount to a denial of a human right – the right to a fair hearing within a reasonable time.
Unfortunately, there have been situations where the Constitutional Court or the Civil Court, First Hall, sitting in its constitutional competence, find that another court has breached the reasonable time criterion of the Constitution and/or the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Nonetheless, the court structure is not equipped to deal with the increasing workload.
Although the members of the judiciary and judicial output have increased over the years, such an increase was not proportional to the increase in workload and the complexity of the law.
We urgently need a vision statement for the courts of justice.
The Commission for the Administration of Justice should carry out such exercise.
Prof. Aquilina is Dean of the Faculty of Laws at the University of Malta and a former Registrar of Courts.