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The Commission for the Administration of Justice is a sham. Its purpose is noble but so far the Commission has not proved to be anything more than ‘the trade union’ of the judiciary. The latest report on the workings of the Commission continues to prove my point.
It is the Commission’s job to act as a watchdog on judges, magistrates, lawyers and legal procurators. In fact the Constitution of Malta outlines the functions of the Commission which include the following: to supervise the workings of the courts; to advise the Minister of Justice on the administration of Justice; to advise the Prime Minister on the appointment of a judge or a magistrate; to draw up a code or codes of ethics regulating the conduct of members of the judiciary, lawyers and legal procurators; to draw the attention of any judge or magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of such court and to draw the attention of any judge or magistrate to any conduct which could affect the trust conferred by their appointment or to any failure on his part to abide by a code or codes of ethic relating to him, to exercise discipline over advocates and legal procurators practicing their profession and any other function as may be assigned to it by law.
This is the theory, but when it comes to practice it is a different matter. If you were to analyse the report of the Commission which was issued lately and which refers to the workings of the Commission between October and September of last year, you will know what I mean. The report, a mere four page report, is a disappointment and totally unacceptable in that it fails to analyse seriously the problems facing the administration of justice. The report deals mainly with the need to appoint more judges, with the need for judges to have backing staff, with the need for the retiring age of judges to be au par with that of the magistrates, with the pensions of judges, and the Judicial Studies Committee. In effect one page is devoted to the introduction, two and quarter pages whine on about the headaches of the judiciary, and three paragraphs deal with substance.
This is not fair and not just and not allowed by the Constitution that has placed the Commission there. If the judiciary wants to be in a trade union, let it do so, but for the judiciary to hide behind the veil of the Commission for the Administration of Justice is an injustice and a disservice to the Commission itself. The Commission knows the problems facing the administration of justice nowadays and the truth of the matter is that it does not want to make waves.
In its report, the Commission said that the delay of judgments in the Court of Appeal and the First Hall of the Civil Court can only be solved by appointing more judges. The Commission fails to mention how and why this backlog was created and failed to scold those who were responsible for the crisis. It is very easy to say that the solution is to appoint more judges, but that does not solve the problem. To solve the problem related to the backlog of cases, the Commission knows that the judges have to work harder, that work has to be distributed fairly, and that they need less political pressure, better management, adequate staff and resources.
Statistics for the year 2003 show that 1,517 new case were filed in the Civil Court and these were assigned as follows:496 to Justice Ray Pace, 337 to Justice JR Micallef, 129 to Mr Justice Gannino Caruana Demajo, 120 to Mr Justice Gino Camilleri, 117 to Mr Justice Noel Cuschieri, 114 to Mr Justice Geoffrey Valenzia, 98 to Mr Justice Tonio Mallia, 94 to Mr Justice Farrugia Sacco, and 8 to Mr Justice Joe Azzopardi (appointed judge in 2003).
The corridors of the Civil Court First Hall are now practically empty and the Commission acknowledges this by saying that the rise in court tariffs had its effect on reducing the backlog of cases. However, I never expected the Commission to justify this increase by saying that it is intended to discourage futile and vexatious cases. If the Commission is genuinely convinced that this is the case then I am afraid that it does not know what is going on. Futile and vexatious cases for people who have money are still the order the day. The increase in court tariffs is denying the people access to justice: the courts in the First Hall are empty not because there is now a deterrent to futile and vexatious cases, but because people can not afford to pay Lm375 registry fees.
The Commission knows that it was the other Commission, the Commission of the European Union, who instigated all this when in one of its acquis prior to accession, it ordered the Government to devise ways and means to decrease the backlog and so far, the scheme devised was to raise the tariffs, imposing time-limits and putting undue pressure on the judiciary and the advocates who are now no longer in a race for justice, but in a race for reducing the backlog.
I expected the Commission to report on this situation just as I expected it to report on other issues. Silent is the Commission on the Small Claims Tribunals whose claims are not small at all – it does not register the need for the chairpersons of these tribunals to be part of the judiciary so that independence and impartiality is safeguarded. Neither does it deem it fit to comment on any breach of the code of ethics by the judiciary or the advocates. May I remind the judiciary, that the code of ethics does not allow for notaries or accountants or whoever to share an office with a lawyer. Yet now some of these offices have become a one-stop shop. The Commission does not listen to the radio as otherwise it would not allow notaries to give legal advice as they are not authorised to.
The Commission did not anticipate that with Malta’s entry into the European Union the rules on procedure would have to be amended, nor that the judiciary would need support staff to help them with research on EU law now that EU prevails over our law. No it did not envisage this as otherwise it would have made recommendations to the Government to establish how pleas on EU laws are to be handled by the judge and how to send a reference to the European Court.
May I inform the Commission that the Court is in a state of limbo: Judge Valenzia is having a hard task trying to decide on whether he can order a warrant of prohibitory injunction so that a minor will not be allowed to leave Malta. Not that Judge Valenzia is stupid, but whereas before he only had Maltese law to consult now he has to consult Malta’s treaty with the EU and EU law itself because the Commissioner of Police has informed the Judge that he will not be able to obey the court order if it orders the issue of such warrant.
It is the same with court cases in which an EU regulation is pleaded. If I were to plead to the magistrate or judge that, for example, the satellite television tax is contrary to EU law, and he decides to make reference to the European Court of First Instance for advice, to date we do not have any law regulating this procedure so that to date nobody knows how this shall be dealt with. I am sure that the Commission is not familiar with these problems as otherwise it would have commented on this in its report. After all, one of its functions is to make recommendations to the Minister responsible for justice as to the remedies which appear to it, conducive to a more efficient functioning of such courts – at least, that is what the Constitution of Malta says.
For the Commission the remedy for a more efficient functioning of the courts is to increase the number of judges. Needless to say, the Minister of Justice jumped on the report and this week informed us that he intends to publish a white paper on new laws of procedure in civil and criminal matters. Scrap the idea Mr Minister – our rules of procedure are fine and they only need fine tuning.
Efficiency in the administration of justice is not secured by introducing new laws of procedure. Efficiency in the administration of justice is secured if administered by people who fulfill their duties truthfully and are not afraid to be an embarrassment.
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