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Are these people completely mad? How could they propose anything like Bill 27 if they were compos mentis? Dr Carmelo Mifsud Bonnici’s brainchild would make it the law that any claim for payment of a sum up to Lm 5,000 would become the equivalent of a judgment within 30 days of service on the debtor if he does not reply.
Service of a judicial letter has become little different from the delivery of any other registered letter. I have known cases where the court accepted as a valid service the receipt of a judicial letter at the wrong address with the defendant’s name incorrectly spelt. It had got to him months late but proceedings carried on regardless of objections right up to judgment.
What if that service of a judicial letter had been an erroneous claim for payment of Lm 5,000 on somebody who earns Lm 2-3000 per year? I would not like to be that victim’s lawyer. How would I ever explain the insanity?
I would not even want to be the creditor’s lawyer. A client may assure me that his claim is kosher, but I would never really be able to tell. If taking up the cudgels for him meant that his debtor would be competently represented and able to put up a fight, I would be able to make the creditor’s claim for a debt which is “certain, liquid and due” with a lighter heart. If it meant putting my hands in the debtor’s pockets without any court being involved to oversee the proceedings, I would find it simply disgusting, ethically impossible.
It has been argued in its defence that Bill 27 is intended to simplify matters for creditors who are avoiding litigation because it has become too expensive. Just imagine what it has become like for the debtors. Take a Joe Borg who runs into a bad patch. Once the first creditor uses the Mifsud Bonnici system, Mr Borg can expect a blizzard of judicial letters from everybody and anybody with the faintest hope of a claim against him. It is immediate bankruptcy without bankruptcy proceedings. The man is doomed for life: every claim becomes a debt judicially (or is it extra-judicially?) confirmed with warrants of seizure and sales by auction to follow. There is no means of extinguishing the debts and no regular competition of creditors. It is a legal smash-and-grab process.
Of course the Mifsud Bonnici stroke of genius allows the debtors to file proceedings to contest the issue of warrants. But there is a catch to it: if the vultures are circling over you, you have probably already lost access to any money in the bank. Everything you own is seized by the creditors. Now go find a bleeding heart lawyer to defend you for free. Of course the best lawyers in the land will fight one another to take your case. Of course. Until your creditors have ripped you apart sufficiently, you will not qualify for legal aid.
Assuming that you do run into a Good Samaritan in a lawyer’s gown, you still have to fork out the costs to file proceedings in your defence. The creditors balk at the prospect, how about you? Do you have a good begging bowl? Keep fit, you may have to sell your body to keep ahead of your creditors any day soon.
Just imagine if it had been a Labour government proposing this version of ‘The law as a means of oppression.’ Thank God it is the self-proclaimed natural party of government rooting for Shylock. It is utterly inconceivable that the Greens could ever come up with anything like this. With an absolute majority in parliament, the PN can ride roughshod over the chorus of objectors and convince them further that this country needs to put an end to absolutism and the divine right of mega-parties.
The compulsory arbitration proposed in the Bill is just the cherry on top. Compulsory arbitration? It’s a contradiction in terms. Arbitration implies a consensus between litigants to opt for a faster and hopefully less costly solution to their dispute outside the formal judicial process. It requires their joint consent to waive the constitutional guarantees of impartiality and independence assumed to be available in the long way round. Compulsory? The Minister substituting his will for the consent of the parties in dispute?
The whole thing smells of failure. The courts have become a social and commercial bottleneck with excessive delay favouring defaulters and delinquents of every sort. The government’s response was to make court proceedings infernally expensive. Justice just for the rich? Fewer cases because nobody can afford justice? Now creditors are complaining that they cannot recover their money because it costs too much to even try. PN solution: do away with the judicial process altogether.
As a rival politician I could not have hoped for a better instance of the government blowing both its feet off. As a lawyer, I feel humiliated. As a Maltese I am simply appalled. The Mifsud Bonnici proposal is likely to bring untold misery to thousands of homes across the country. In each case the tragedy will be personal, significantly shameful, and kept as private as possible. The resentment will be immense and unyielding. It will not even improve things for creditors in the truly difficult cases.
The Minister of Justice should provide access to justice to all persons, debtors and creditors, the accused and the public through the prosecution. He should reform, not destroy the judicial system. He should not be busying himself to short circuit the system, nor to make a mockery of it. His abysmal Bill 27 will be defeated, if not in parliament, before the European Court of Justice. He is about to have us certified as the armpit of Europe on the scale of values and principles his party spouts so often.
Dr Vassallo is Chairperson of Alternattiva Demokratika - The Green Party
harry.vassallo@alternattiva.org.mt
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