Impractical reforms

Recently in Parliament, the government faced strong criticism for implementing radical reforms in the administration of justice too rashly. At times, these reforms are proving impractical and run counter to accepted juridical notions. This has been the case with regard to the far-reaching reforms implemented in arbitration, which have raised more than a few eyebrows.

For some time now, all collision cases are being referred to forced arbitration. When I state all collisions, I mean that in practical terms this is the case as rare are the instances where damages sustained on vehicles exceed Lm5,000, which is the limit of the exclusive competence of the Arbitration Centre.

It seems to me that, when such legislation was being promulgated, the responsible minister forgot all about Gozo. Gozo being an island, for practical reasons it has always been deemed necessary to cater for it specifically, even with regard to judicial matters, as has been correctly stated in Parliament lately by Gozitan MP Justine Caruana. Interestingly, we see that the only municipal court that exists is the Gozo Court. This court, though presided over by a magistrate, enjoys also superior jurisdiction. To facilitate matters even further for the people of Gozo, more amendments were introduced. Today, for example, appeals are also held in Gozo, and now, periodically, a superior court judge attends purposely to hear such appeals.

This notwithstanding, all of a sudden, the Gozitans are being denied excess to their court with regard to a substantial percentage of their litigation because, undoubtedly, collision cases are among the most frequent. Today, such litigants have no option but to refer their litigation to the Institute of Arbitration, situated in Valletta.

This makes no sense whatsoever as it causes undue inconvenience to litigants, especially if the claims in question would be of little consequence. Thus, the irony is that while in more serious and important matters Gozitans can sue before their own court, in less important issues they now have no option but to resort to arbitration in Malta.

The minister should have treated Gozo in an exceptional fashion even in this regard. The best way would have been to exempt the Gozitans from the provisions of forced arbitration. Furthermore, the impracticality of coercing people into forced arbitration is proving manifest in other circumstances too.

Collision claims of low value amounting to a few hundred liri are now no longer practical to pursue because of the excessive costs of arbitration. Previously, minor collision suits were heard and tried expeditiously before the small claims tribunals. The necessity of removing such claims from such ad hoc tribunals and transfer them to what today, for all practical and legal purposes, another ad hoc tribunal is beyond comprehension. The cost before the small claims tribunals is far lower and the procedure far less cumbersome from that being employed by the Arbitration Centre.

The formalisation of arbitration and mandating it through the Arbitration Centre is, ironically and in practical terms, having the opposite effect of that desired. Previously, when arbitration meant the consensual determination of disputes before a chosen arbiter, members of the legal profession would regularly and casually resort to this mode of resolving disputes. Today, however, because of the burdensome new procedures introduced over the years, lawyers seem to be far less keen in referring disputes to arbitration and practically only resort to it when it is compulsory to do so.

The end result of all this, though there are no statistics to prove it, signifies that far fewer disputes are in fact being resolved by arbitration than previously. The truth is that once you formulate too many procedures before the Arbitration Centre and even start granting it compulsory jurisdiction, then you would be creating a parallel court. This is not merely proving to be impractical but surely also runs counter to the spirit of the Constitution which clearly defines how a court of law should be constituted and lays down the necessary safeguards for its independence.

Dr Herrera is a Labour member of Parliament.