Sealing off the gates of justice

Entering my office one morning I noticed a pile of pending judicial acts to be filed in court. I was taken aback at the volume. There was to my mind a whole mountain of such acts and this was very unusual.

Going through them, however, I soon realised that the underlying reason for this was that the persons concerned simply felt they could not afford to present them and thus practically abandoned their judicial actions.

This is what is being experienced by practically all practising lawyers. Statistics show a drastic fall in the number of civil suits presented before the superior courts this year. The substantial drop cannot be solely attributed to the fact that the jurisdiction of the inferior courts has been considerably increased. In truth, for most people litigation costs are proving too prohibitive.

I have followed with interest the recent cross-fire between Labour Member of Parliament Anglu Farrugia and Parliamentary Secretary for Justice Carmelo Mifsud Bonnici over the new tariffs.

I was bemused by the way the parliamentary secretary tried to deflect the criticism being levelled at him. Amazingly, he was audacious enough to even suggest that the new tariffs were in fact intended to mitigate the existing court costs.

In truth, if you ask any practising lawyer his opinion on this issue, he will surely contradict Dr Mifsud Bonnici's assertions. I fully concur with the position taken by Dr Farrugia when he presented a motion in Parliament aimed at repealing a number of these new cumbersome tariffs.

These new court tariffs apart, it is an undeniable fact that today litigation has become extremely costly and is no longer affordable to the lower middle classes downwards. This is extremely worrying indeed.

Court taxes introduced over the past few years have been deterring, unjustly, a lot of people from seeking judicial redress when the courts are supposed to be accessible to one and all without distinction.

This trend is surely unacceptable in a country that portrays itself to be among the most democratic and just. Free access to the courts should run part and parcel with the very concept of democracy itself. In a free country everybody should be entitled to assert his rights and not be prevented from doing so due to economic considerations. To me all this seems to be very unjust.

To add insult to injury, Malta still lacks a serious legal aid system which in other countries is practically taken for granted. Here, in civil cases, legal aid is awarded exclusively to persons who are just above the poverty line. When litigation was still considered fairly cheap and affordable to the masses, this system, albeit already somewhat archaic, was somehow workable. Today, however, this is no longer the case.

Litigation nowadays is hardly affordable to the average earner, let alone to the lower classes. If the government is intent on proceeding in this fashion and does not consider revamping completely the new court tariffs, then of necessity it must introduce radical reforms to our outdated legal aid system, thereby making it available to a far larger portion of our society.

Such amendments however would create their own ripple effects. Following such reforms the doors would be wide open to a large number of people seeking free legal assistance and much more work would thereby have to be farmed out to legal aid lawyers.

The workload in this area would increase tremendously. This being the case, the need manifests itself to reform the system completely. It must be pointed out that at present legal aid lawyers are selected by the minister responsible for justice. In this sense there exists a list of such legal practitioners and when the occasion arises the court will nominate that particular lawyer by turn.

This system will no longer be a practical one once, as sated above, the volume of work will increase considerably. In such a scenario it will prove far more practical and fair to allow for all practising lawyers to be eligible to act in legal aid cases, as happens in most other European countries.

The ideal system would be for a person to be entitled to choose as his attorney a person he trusts and has confidence in. It makes no sense to have a system whereby the minister imposes a select few and the particular plaintiff or defendant would have to give his brief to a legal practitioner who would have been imposed on him and in whom he might have absolutely no faith.

Again, till the volume of litigation farmed out in this direction is fairly limited, the system can, for better or for worse, function. However, once the scope of legal aid is extended, the system will collapse.

The gates of our courts of justice are being slowly sealed off for an ever growing section of society. Democracy and decency demand that these are once again opened wide for one and all.