Opposition spokesman on Justice José Herrera told Parliament yesterday that Constitutional Court rulings - which had declared the provisions of mandatory arbitration as violating human rights - impinged on the validity of Arbitration awards. These awards related to claims made by public corporations, among others.

The first court judgment was delivered in 2007.

He said the opposition was not against alternate forms of solving disputes, but had always retained that mandatory arbitration did not constitute a proper court and normal court proceedings had to be applied. Voluntary arbitration was more common in past years. The situation today was that 99 per cent of arbitration cases were not held in the Arbitration Centre even though it was fully equipped.

The administrative tribunal set up by the Ministry of Justice was a step in the right direction, but it was wrong to set up so many tribunals without any judicial review which could only be made by the ordinary courts.

Malta was the country with the largest number of boards, entities and tribunals in the world, said Dr Herrera. Contentious issues, which were within the remit of the court, should not be delegated to administrative tribunals.

The opposition would be voting in favour of the Bill in second reading but would be presenting a number of amendments at committee stage to address these issues. He proposed that the official letter system could be used to avoid mandatory arbitration in certain limited cases. The official letter would show the intention to solve the dispute in an arbitration. If no answer was given within 10 days, the case would be automatically assigned to the voluntary arbitration tribunal.

Dr Herrera referred to maritime cases, saying that in the past, Malta had always had separate Maritime and Commercial courts. However, a civil court deciding all kinds of cases had been set up in the late eighties. Large law firms had been taking maritime arbitration cases abroad.

The judicial nature of commercial cases was different from that in civil cases. It was time to re-introduce the Commercial Court which could also hear cases on online betting, shipping matters, trusts and financial services among others.

As an aside, Dr Herrera requested a debate on the qualifications required for the appointment of a judge. Reality showed that 75 per cent of lawyers no longer practised in the courts but had expertise in different spheres. These should not be disqualified from holding office as judges on the premise that they did not have enough court experience.

Mediation could not function without the mandatory element. In the past, judges were considered excellent mediators. He praised Magistrate Dr Silvio Meli on the way of solving libel cases through mediation.

Dr José Herrera said the minister's proposals on mediation were correct but their relevance was minimal. The opposition had for years declared that it was against mandatory arbitration. Time had proven the opposition right with three court judgments which declared mandatory arbitration anti-constitutional.

The opposition did not have any intention to dismantle arbitration centres, but it wanted to ensure that the process remained voluntary. Arbitration was being held in the courts and was more costly where the cases were for small amounts. These could be heard by the Small Claims Tribunal.

He said the arbitration process had been denaturalised. The aim for an arbitration centre was not to tackle small claims but to attract international and maritime cases.

He was worried about mandatory arbitration because there was the temptation to assign more court work to mandatory arbitration. This process threatened to dismantle commercial litigations. It was never the intention of legislators to farm out interpretation of laws to private sectors. Laws had to be interpreted and judged by the Courts according to the Constitution.

Dr Herrera proposed that access to arbitration could be facilitated through an amendment which gave each side a limited period to declare whether they were disposed to go to arbitration instead of seeking redress in the Courts. Arbitration could only function if the two sides agreed on the arbitrator.

Statistics submitted to the Minister were erroneous and inexact. He would be asking more questions in Parliament to get the correct information.

Dr Herrera said things all boiled down to the performance of different judges or magistrates. Some gave quick sentences, others gave quick sentences of high quality and showed high performance while others, for some reason had low performance.

If a magistrate could conclude five times the number of cases as another, the average would change. When choosing new judges, politicians must choose only the best, with an eye on their track record, good sense and practicality.

The right judges could hand down sentences galore, while everything seemed to be frozen with others. The same held for arbitration, where litigating parties' lawyers went for those adjudicators that they knew would give them a quick sentence.

A judge's post was one of the highest standing in the country, guaranteed by the Constitution. The judicature was one of the three organs of the state.

Dr Herrera said another way of expediting cases before the lower courts was delivering sentences ex tempore. Then Justice Minister Tonio Borg had invited to Malta the UK's Mr Justice Rose, who had spoken on how British judges were judged for expediency. In the UK, 90 per cent of sentences were given ex tempore.

Pressing his point, Dr Herrera said he had recently defended a case of attempted murder before Mr Justice Joseph Galea Debono. The trial had lasted two days and the verdict had been quick. In contrast, when a trial was presided over by a judge with no jury he would have to retire and hand down a written sentence within a week.

Interjecting, Justice Minister Carm Mifsud Bonnici said that after Judge Rose's visit, Malta had been sensitive to the problem and enacted specific legislation.

Continuing, Dr Herrera said the current legislative powers of the rule-making board were going beyond those of the rule-making body made up of members of the judicature. He did not believe such a body should have too much power. There was nothing wrong in consulting judges, but the rule-making body should not assign cases itself for ex tempore sentences or otherwise.

When judges in the UK came up against something new and wanted to make new case-law over it, they pronounced themselves and gave it the weight of their standing. But whether or not to deliver sentences ex tempore was up to the judge to decide.

The trend in Malta seemed to be that ex tempore sentences were regularly delivered in the Criminal Court, but there was an apprehension about doing it in Civil Court. In summary cases the legislation was still the same as before the competence of the lower courts had been increased. Before, a magistrate used to have no sentencing power beyond six months' jail, but now he or she could send a person to jail for up to 10 years. The law still held that a member of the judiciary could decide not to give reasons for a sentence.

It was more important to have the right sentence in a case involving two years' imprisonment than in one involving €2,000. If judges had to write out their every sentence they could never keep up with the number of summary cases. The only solution was ex tempore sentences, and civil cases should be treated like criminal ones, complete with judges' notes.

Court procedures had largely been handed down through generations, and they should not be undermined.