Integrity and delivery in our courts

Last January I had written an article in The Times entitled 'Making the Courts work,' in response to a statement by Justice Minister Austin Gatt. He had made public newly-compiled statistical data to show that, on the whole, court delays were decreasing.

That was at about the same time that a new Chief Justice, Dr Noel Arrigo, had been named to replace Dr Joseph Said Pullicino who, as anticipated, had retired (and been appointed chairman of the Broadcasting Authority).

The main bottleneck and backlog was (is) the Court of Appeal, at the presidency of which we now have a third chief justice (the otherwise unanimously acclaimed and highly respected Dr Vincent De Gaetano) within the space of nine months - everything but a normal gestation period, in this case.

Dr Gatt said this much so far as the Court of Appeal was concerned - there was the main sticking point. He went on to add, however, that he had no intention of limiting the right to appeal in any way.

Can the system change?

In her lead letter 'Delayed justice' (The Times, August 27), Catherine Grixti of Gzira expressed an all-too-understandable dismay at the fact that her 75-year-old father had a case pending for three years now.

He had been summoned to court repeatedly, "only to find out that, after a long wait in the corridor, the case is put off for some unknown reason". She added:

"Apart from the witnesses involved in the case having to take leave several times for nothing, and obviously he is not exactly a teenager who has so much energy to spare, I ask: When is the system going to change? When will the court have most cases concluded as soon as possible?" As soon as possible, did you say?

Dr Arrigo's rise to fame made me discover that when one of the judges (or more) in an appeal court changes, the defence lawyer, appealing against the sentence handed down after due process in the first instance, may ask that the same case should be pleaded all over again. However comprehensible, that was hardly a straw in the wind so far as a decline in delays was concerned.

And the more so now when the chief justice has changed yet again - so soon after the other one had started hearing many of the same cases all over again. Adjectives and expletives deleted.

It is true that various court fees have been greatly increased, presumably as a deterrent against a litigious and often petty streak (not uncharacteristic of this place), damning though that is to those who have to suffer it (in the absence of a final judgment).

Thus, a prohibitory injunction hopefully to safeguard against any repeated aggression can now cost the injured party, in court fees alone, as much as Lm62.

As court delays are proverbial, a common ruse effectively to prevent justice from being done is to delay it for years by lodging an appeal; and perhaps simultaneously opening another case about much the same thing before some other court; and then preferably to ask that the same case start being heard all over again every time a member of the bench disappears and is replaced by another one. Long live some members of the legal profession.

This apparently customary manner of dealing would seem to apply indiscriminately, even where specific laws are supposed to regulate such things as rights of ownership and deeds of sale; and/or initial prescription; and/or a comprehensive remedy on the mutual understanding that, whatever the outcome, it would be respected by both parties (sic). End of story, ha, ha.

As if such pettiness were not enough, the all too familiar "rimandata ghas-sentenza", followed by "rimandata", "rimandata" and "rimandata" again, when one presents oneself in court on the mistaken assumption that a sentence would indeed be delivered on that day, should stop once and for all.

Once a case has been heard, pleadings, witnesses and all, the judges, and a fortiori the presiding judge, should more or less make up their mind. I believe that guidelines regulating judicial procedure to prevent delaying sentence repeatedly already exist, but who guards the guardians in this respect?

Minuting the drift of a case

If the Minister of Justice is considering piloting changes in legislation concerning aspects of procedure, might I humbly suggest that, for a start, the court be obliged to take and register a note of where a judgment is heading, noting - if only in point form - the main constituent elements of the case in view of an eventual delivery of final sentence about it as it progresses from one sitting to another.

Such a gradually minuted, decision-oriented procedure, which would seem a pretty normal one to follow, would prevent a succeeding chief justice from facing the predicament of possibly finding absolutely nothing, not a word, from his predecessor, to indicate what would have been more or less surmised, pending the formal writing down and delivering of a sentence.

I may be wrong, but I get the impression that there is a 'judicial' tendency to trust much of the decision-making exercise to memory, until such time as somebody (be it the chief justice or another member on his bench) actually gets down to dealing with the file, quite fat by now, finally to commit pen to paper by writing down a sentence for handing down, on that long-awaited and fateful day when the word "rimandata" will not be uttered again.

Such a succinct, gradually integrated procedure, by way of an updated aide memoire, would seem to suggest itself all the more in cases where it is known beforehand that a change of judge would be occurring shortly, for whatever reason, in that court.

It is hardly fair on those concerned that in his last sittings before retirement, a chief justice should limit himself to a casual verbal indication, or body language, as to what the likely outcome of a case long before him would be, without anything firmly put down in writing.

Citizens, we have been told, have the right to know when something goes horribly wrong. Well, clients have rights too. As it happens they are also citizens, who may be thirsting for justice and right, or who, for that matter, may be 75 years old.

Multiplying the case

There's more. Not only is justice delayed justice denied; it is a sure recipe for further increasing, rather than decreasing, cases before our courts.

The repercussions of such delays over the years - three, four, five - can assume a certain gravity, extending what could be a relatively straightforward matter from civil to criminal jurisdictions, and before various courts, and possibly in different places.

In the absence of a decisive remedy by means of an unequivocal judgment, especially at the appellate stage, other actions and counter-actions may follow in the attempt to presume or to re-assert a right at law, possibly with multifold aggravating consequences.

But what are the clients' rights when faced by such consequences with the passing of the years, as a result of the court's own inexplicable delay? Are there none which can be claimed against those entrusted with the responsibility to decide, to get it over and done with, without counting and listing the passing years?

Is it mandatory that there be only one bottle-necked Court of Appeal for anyone and everyone? Cannot the existing guidelines to expedite matters at least be seen to? Cannot legalistic vexation be severely punished, rather than allowed to thrive and prosper?

To help matters along further, all we need is a merry-go-round of judges thus to start all over again every time; and to ensure that rights of appeal are in no way curtailed or restrained, irrespective of specific regulatory laws, and supposedly prescribed deadlines, and mutually endorsed understandings, and so on.

In the light of all this, I concluded my January article by saying that I did not envy Dr Arrigo one bit. Blinded and thrown off my horse altogether by the further bright and laser light that has now been shone on the 'workings' of our courts, most notably the Court of Appeal itself, I can in all honesty say that I envy Chief Justice De Gaetano so much less.

Equally, in rendering our country this service at such a painful and difficult turn, I wish him God speed, in the national interest. And, above all, in the interest of the administration of justice itself which, in spite of everything and of everyone, still must be done and seen to be done. I hope.

He is, as he humbly admitted, fallible too; but at least we all know that he is a fine gentleman of truly international standing, and don't we still need such gentlemen around here.

If the president of the Chamber of Advocates is right, he was one of two or three most suitable judges who could have been chosen; that is, to put the public's mind at rest insofar as honesty, integrity, discipline and ability were concerned. Delivery also matters.

Alone, however, he will not beat the system, such as it is.

Professor Frendo is chairman of the Refugee Appeals Board.