Justice revisited

In his letter on justice, Karm Farrugia (September 15) made reference to the Minister of Justice's plea (September 4) against avoidable court litigations which, as the minister said, exacerbate the delay factor in dispensing justice. Mr Farrugia then quoted the popular dictum: "Go to court only when you are at fault".

The excessively legalistic and protracted attitudes, which characterise Maltese court practice, must be a frustration not only to the legislator, who himself may be at fault for equivocal, cumbersome or contradictory enactments, but to the party who, through no fault on his part, is taken to court even on dubious grounds of pretended right, or where police protection against repeatedly threatening behaviour is in effect tenuous or ineffectual, yet seemingly without any end in sight.

Mr Farrugia mentioned one obvious case of pika (pique) concerning a dividing wall. I shall limit myself to two cases which, by the criteria of the ordinary man in the street, surely would slot into the Minister of Justice's complaints both with regard to avoidability and to the delay factor.

Take a prosecution case in the Criminal Court against one accused of violent aggression in a neighbour's property, which has been fully heard and pleaded, with testimony sworn and submitted by several witnesses including the police officers concerned, albums of photographs of the scene having been made available to the court and sworn to by eyewitnesses and the perpetrator having actually confessed to his deed.

It is then "discovered" at the last minute, by the defence lawyer, that there was a slight imprecision in the wording of the charge as issued by the prosecuting officer.

Although for all practical purposes this inexactitude (say, whether the report had been lodged before or after the stroke of midnight) is altogether immaterial to the charge itself, and to the deed at issue, the court holds that, while noting that the perpetrator has no right to do such things, nevertheless stricti juris the magistrate cannot pronounce any sentence in his regard. Great!

Therefore, the case would have to start de novo and indeed, years later, so it still carries on, undecided.

If justice is to be done and seen to, however, should this apparently typical, readily expected outcome not be deemed an avoidable delay, if common sense had the better of conventional legalism?

Take a second case, involving government-certified title to property purchased as such. After some years, another party decides to contest this title. In spite of a specific law enacted purposely authoritatively to ascertain title, some government notice in the mid-1980s apparently subjected this legislation to a prescription of up to 10 years from the time that such title had been certified by the Office of the Registrar of Lands. This may be interpreted to mean that unless 10 years have passed, such title still could be contested, albeit if extraordinary, manifestly evident reasons for that exist.

However, once the whole matter is fully investigated through a mutually agreed arbitration-like procedure (on site inspection, contracts, witnesses, pleadings, changed situations, etc), and the title is reconfirmed to the title-holder, and once the Court of Appeal, itself after duly re-investigating the whole matter, again reconfirms the title to the title-holder, with all costs chargeable to the plaintiff, how on earth - after eight full years since the start of proceedings, and well over 10 years since the registration of the same title had been finalised by third parties - may a magistrate's court decide to start all over again, to see for itself? With more or less the same witnesses, the same contracts in place, etc. - in what is called, apparently, a kawza rivendikatorja (sic). This obviously to the detriment of the purchaser and owner, whose rights have been confirmed three times over and who, in the meantime, has of course been using the property in question.

With all due respect to our courts, lawyers and venerable old customs, is this not avoidable, in the circumstances? What about the delay, with the full enjoyment in peace of the property by the owner and his family - free from such endless harassment, aggravated repeatedly by violence - of property purchased so many years earlier with an officially certified title and which is intimately and logically connected to one's abode?

If I am not mistaken, there is jurisprudence in Strasbourg regarding such behaviour not simply in terms of ownership but in terms of human rights, with entitlement to compensation. But baroque habits die hard it seems, whatever ministers of justice may say and the public's outcry to boot. One would be excused for thinking that our courts were not busy enough, which clearly is not the case.

In the meantime, the brutal assassination of Gozo's leading lawyer remains unsolved.