The rule of law does not collapse only when certain institutions fail to act on serious and persistent allegations of wrongdoing by people in high places. Delays and inefficiency in the administration of justice also undermine the notion of the rule of law.
Chief Justice Emeritus Vincent De Gaetano told The Sunday Times of Malta: “I have been a lawyer for over 44 years and a judge for close to 26 years and my assessment of the system has changed very little: we have basically a good legal framework with a judiciary that is, for the most part, dedicated but with endemic problems of delays and inefficiency which no government has sought to address in a holistic manner.”
Litigation in this country being as attractive and popular as a fireworks display on a coronavirus-free summer night, the courts are, admittedly, overloaded.
De Gaetano, a former European Court of Human Rights judge, admitted that having precise statistics is difficult. However, he noted that figures listed by the Council of Europe’s European Commission for the Efficiency of Justice, which refer to 2016, paint “a dismal picture, particularly with regard to the length of time it takes to dispose of cases on appeal, both civil and criminal”.
The European median for civil cases in appeal stage stood at 122 days.
Compare that with 783 days in Malta’s case. It gets worse in criminal appeals where the European median is 77 days but a staggering 1,025 days for cases before Malta’s Court of Criminal Appeal.
When Dr De Gaetano ended his term as chief justice in 2010, cases would have to wait for just over a year for a first hearing before the Court of Appeal, down from almost three years in 2002. He has been informed that the waiting time has now shot up to close to five years.
As a rule of thumb, he noted, the reasonable time requirement would be violated, in terms of both the constitution and the European Convention on Human Rights, if a case is not decided within four years at one level of jurisdiction and within six years at two levels.
Way back in November 2013, a commission headed by another former judge of the ECHR, Giovanni Bonello, had referred to the matter of delays by describing it as one of the areas that is most criticised in the administration of justice. Noting that a number of reasons contributed to such delays, the Bonello Commission had proposed measures to address the issue. Still, the problem persists.
Compared to other countries Malta ranks on the low side in terms of the number of judges it has per 100,000 population. The same applies to prosecutors, though lawyers abound.
Dr De Gaetano listed some of the issues he thinks are contributing to prolong court proceedings: unnecessary litigation, committal proceedings that drag on and on (in England, such proceedings were abolished seven years ago), lack of staff and resources at the Attorney General’s Office, not enough court halls...
Only last June, the ECHR chastised Malta after concluding that it had taken the courts over two levels of jurisdiction more than 17 years to decide on a case ironically dealing with lengthy proceedings.
It is surprising such complaints are not more common and more numerous. But that is definitely the wrong yardstick to use when measuring whether justice is being meted out within a reasonable time.