I read with interest the Justice Minister's contribution regarding the administration of justice. In this article we get a glimpse of pleasures yet to come regarding our law-courts. It seems that the government is intent on proceeding in similar fashion as it had been doing over the past five years. It seems that the minister keeps on toying with the idea that the only way forward is to continue to dismantle the jurisdiction of the ordinary courts and assign more and more work to the so-called Malta Arbitration Centre.

For years on end, myself and other parliamentarians have had the opportunity to criticise this vision. We have been stressing the point that by denying access to the courts to the common citizen we could be moving on shaky grounds on account of constitutional considerations. To my mind, the concept of forced arbitration is no arbitration at all but is in fact the creation of another tribunal assuming the function normally attributed to the ordinary courts of law.

As I had envisaged, the issue was finally referred to our Constitutional Court. In a particular case - Anthony Grech vs Claire Calleja - which was being heard before our Small Claims Tribunal, the constitutionality or otherwise of forced arbitration, in this case, legal notice 279 of 2005, was referred to the Civil Court. The court had to decide whether forced arbitration in all collision cases was tantamount to an infringement of article 39 of the Constitution and article six of the European Convention of Human Rights. These particular articles of law guarantee the right of access for everyone to the courts. Our Civil Court concluded that this was the case and declared the relative legal notice as incompatible with the relative constitutional provisions.

Undoubtedly, this judgment came as a bombshell to the government, which was determined to proceed with expanding the category of cases that had to be referred to arbitration. The judgment in question was appealed. Unfortunately, however, the Constitutional Court did not determine the issue once and for all. In fact, by a judgment of February 29, 2008 it only acceded to the appeal on a legal technicality.

It transpired that the constitutional reference had been made by a tribunal and not a court and, according to the Constitutional Court, such a reference could only be made by another court and not by a tribunal. Thus, the merits of this particular case were not dwelt-upon. On account of this, the only existing judgment which in substance deals with this issue remains that of the First Hall of the Civil Court. Therefore, we only have the opinion of a superior court judge who affirms the unconstitutionality of forced arbitration.

The matter has cropped up again in a different case. The local council of Marsascala, in a case it brought against the Water Services Corporation, has once again asked the Civil Court to determine the legality or otherwise of this burning issue.

This time round there is no avoiding determining the case on the merits because the constitutional reference has been made by a court of law.

In the light of all this, therefore , to my mind it is highly presumptuous for the minister to continue insisting on forcing more and more litigation onto our Malta Arbitration Centre. In the best hypothesis, the government's position is premature. It is expected that, at least, the minister should wait for the final outcome. If not, he could run into hot water.

The consequences of a ruling affirming what our civil courts have already had occasion to do could be draconian, to say the least. Such a decision could imply that all the awards given during the last few years by our Arbitration Centre in forced arbitration could be regarded as null and void. This would lead to a big crisis in the administration of justice. This time round there would be no excuses left for the minister because he has been forewarned even by a member of our superior courts.

At the end of the day one wonders what the government's agenda really is in this regard. It is a myth to state that forced arbitration or ad hoc tribunals diminish litigation. In truth, the only things which seem to improve are court statistics.

If you shift chunks of ordinary litigation onto other for a, our courts will obviously have fewer cases to determine and this will necessarily lead to shorter lists, giving occasion to the government to boast of having reduced court back-log. In truth, however, such work would still have to be dealt with elsewhere, leaving no practical gain.

Dealing with the judiciary in this fashion is far from positive and undermines the spirit of the Constitution, which upholds the fundamental principle of the three organs of state: the legislative, the executive and the judiciary.

Such reforms definitely go a long way in undermining the role, scope and prestige of the third pillar of state. A weakened judiciary is therefore not conducive to the best form of democracy because in all democracies this institution is, in the final analysis, there to uphold civil liberties.

I feel that the government should rethink its position on the matter.

Dr Herrera is a Labour member of Parliament.