The influx of foreigners taking up residence in Malta in recent years has piled pressure on the courts and it is only thanks to the judiciary and their staff that the “system has not collapsed”, the Chief Justice said on Monday.
Mark Chetcuti flagged the “phenomenon” in his speech at the start of the forensic year.
Although progress has been registered, “we must admit and cannot continue to mask the reality of a system that is not producing the results expected within a European democratic state,” observed the Chief Justice.
Particular reference was made to the Criminal Court, the Family Court and the Gozo courts which were “barely staying afloat” with the ever-increasing workload due to the number, diversity and complexity of disputes pouring in.
Such a “phenomenon” was particularly caused by the large volume of persons and legal entities which, over the last few years, have taken up residence in, or set up legal ties with Malta.
The judicial system, including the number of judiciary, the human resources in court, the space available as well as procedural laws, was not equipped to cater for such influx and it is “thanks to the judiciary and the current staff that the system has not collapsed in spite of this phenomenon.”
Civil courts emergency: “the writing is on the wall”
At present, the 10 judges presiding over the civil courts each get an average of 240 new cases a year, delivering judgment on 150 to 200 annually.
Each of these judges has an average of 500 pending cases.
Given such a volume of cases, “the Civil Court is today facing the impossibility of coping and delivering judgment within a reasonable time,” said the Chief Justice, calling upon the State and all those involved to come up with a solution “not tomorrow, but today”.
This picture spelt “the biblical writing on the wall” and although there were no “magical solutions”, the situation needs to be addressed because the civil courts could not keep up at this rate.
Inquiring magistrates
Magistrates’ Courts were not in a much happier situation, the chief justice said.
Magistrates are flooded with an “enormous” and varied caseload, often having to handle criminal and civil cases in one day.
An additional magistrate to hear domestic violence cases has helped to ease the pressure but the volume of work has not changed.
The solution lies in creating specialised courts while also doing away with the “false and senseless distinction” between magistrates and judges.
The government’s recent proposal of issuing a fresh call for magistrates who will be assigned inquiries is a step in the right direction but nonetheless, “only the first step”.
The framework should focus upon the setting up of an authority tailored to handle exclusively inquiries, functioning from an autonomous building, incorporating all technical and forensic skills as well as staff and “full-time” specialised experts to assist the inquiring magistrate in reaching timely conclusions.
Shortening the compilation of evidence procedure must also be accompanied by adequate infrastructure and not merely a simplification of legislation.
“Justice calls for diligence,” he said.
Speed and efficiency may lead to justice, however, unless the path is paved well ahead, it can “lead to serious injustice both with the accused as well as with the society that the law is meant to protect”.
Two proposals and more
Matters currently handled by a judge presiding over the Court of Voluntary Jurisdiction could easily be assigned to a retired judge, thus easing the workload of sitting judges.
Another proposal concerned the setting up of a specialised court tasked with hearing administrative disputes, similar to that existing in the rest of Europe.
Having media officials is a “dilemma” that crops up from time to time.
"Is society mature enough for such an office? Who would provide the funding? And to what extent should the judiciary interact with the media?"
As for keeping the judiciary in check, rather than leave this task entirely in the hands of the Chief Justice, there ought to be an internal structure monitoring judicial standards and flagging any issues to the Chief Justice.
“Commitment and sacrifice”- the judiciary’s life
Those who venture into the judicial office must shoulder their office with a great sense of responsibility.
It is an office that calls for “commitment and sacrifice,” where the judge or magistrate must take a step back from social and public life, often drawing his family along the same path.
Without detaching himself from the reality of life, a member of the judiciary cannot in any way be involved in social and public life, in a manner not compatible with their role, especially in a small island like ours harbouring familiarity.
The judge or magistrate leads a very limited private and social life, maintaining silence.
“But we ventured into this with eyes open,” Chetcuti said.
On the other hand, it is “greatly disappointing” to come across comments and allegations about the judiciary which, do not only lack a factual or legal basis, but are intended solely to “hurt” the subject.
Such comments by journalists, opinion writers or even high-ranking public officials cast a shadow on the judiciary, interfering in the exercise of their duties and even worse, hitting hard “the personal dignity of the [member of the ] judiciary and his family.”
Criticism about varying sentences, especially in criminal cases, are sometimes justified.
However, such criticism may be addressed not only by having a sentencing policy tailored by the judiciary themselves, but also by amending relative legislation as necessary.
If parliament is truly sensitive to public needs and functions in the best interests of society, then it should tweak the laws to curtail the discretion of the judiciary on sentencing and certain procedural aspects which may interfere in the course of justice.
“Justice 2030”
The new president of the Chamber of Advocates, Peter Fenech, said the chamber was looking towards the achievement of an efficient justice system by 2030 after a technical and comprehensive audit followed by an open discussion among stakeholders and a plan of action to reach this goal.
He observed that the justice system was often targeted by negative criticism.
There had been various positive measures to remedy the situation but rather than seek strategic action, changes often came about by way of reacting to some crisis that cropped up from time to time.
An audit on the administration of the law courts was recently conducted but surprisingly enough, the chamber- a central stakeholder- was not consulted, remarked Fenech.
It was time to address various issues, such as whether it was “too cheap to litigate,” he said.
Space was another concern. Should the law courts continue to operate in Valletta, questioned Fenech, observing that over the past 25 years, the authorities have missed out on several opportunities to acquire properties in the vicinity of the Valletta law courts building.
The time has come for the chamber to move out of the law courts building too.
Identifying the shortcomings and inefficiencies in the system could best be done by carrying out a technical and holistic audit, followed by transparent discussion among all stakeholders.
Their conclusions would serve as a springboard for a plan of action to achieve an efficient justice system that would truly serve society.
Anti-money laundering and countering financing of terrorism- addressing the challenges
Fenech flagged the challenges faced by the financial sector, particularly triggered by the emphasis on anti-money laundering and countering the financing of terrorism.
The regulator in the sector, namely the FIAU, had issued a large number of guidelines or “implementing procedures” but those alone did not suffice and some need clarification.
There was also a need for more training, practice and ongoing dialogue to better explain such guidelines and adopt a more practical approach.
A sense of “apprehension” permeated this sector to such an extent that many professionals were walking away from this field.
“Unless we pay attention, we might overload this sector with rules and more rules which, other advanced countries, including EU member states, are not calling for,” warned Fenech.
"We need to understand why such “controls” are being enforced more rigorously locally than in other states."
He said the chamber was proposing a round table conference among all stakeholders so as to analyse in a transparent manner the progress registered over the past five years.
This conference would also address the problems met along the way, the consequences of adopting “a risk-based approach” and the manner in which anti-money laundering was addressed in different EU states, thus projecting the way forward.
Sentencing policies
Fenech said sentencing policies may guide both the judiciary as well as lawyers when advising clients.
Such guidelines would also help reduce the number of cases, the burden of evidence and also cut down on court delays, ensuring justice in the shortest and reasonable time.
Certain offences may be decriminalised and other cases may be assigned to the Magistrates’ Courts, tribunals or other organs.
The code of ethics and discipline for both the judiciary and the legal profession should be updated too.
“Everyone considers himself a journalist”
Journalism and the media were the fourth pillar in a democracy, but they were not sufficiently acknowledged and protected so as to fulfil this essential role, said Fenech.
In the wider sense of the term, everyone considered himself a journalist, having a “sacrosanct” right to express himself or herself.
Misinformation, especially on social media, caused harm and errors in any publication should be corrected immediately.
However “prevention was better than cure” and all should avoid “embarrassing situations” which place the legal profession at the centre of public debate.