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Bill 27 is the kind of bill which you must take note of. This is a bill which, once again, is the result of the Government’s inability to tell the judges in their face that it is not happy with their performance. It all started in the Judge Anton Depasquale case when the Government’s motion to impeach the judge was not successful. This was something which the Government did not forget or forgive.
So it embarked on a campaign which erodes as much work from them as possible; to the extent, I believe, that there will come a time when their impeachment will come automatically, only this time it will take a different form altogether. First, we had the local tribunals, then the court tribunals, then the magistrates’ jurisdiction elevated to decrease the workload of the judges, and now we have Bill 27.
Bill 27 is a very dangerous bill indeed. It allows you to invent that you are owed money of an amount less than Lm 5,000, it allows you to notify me illegally, it allows you to get an executive title, even if the amount is barred by prescription, if I do not reply within thirty days, it allows you to take my money without my knowing it.
On my part, I will end up not only with the money taken illegally but with having to fork out money in a court case to try and explain to the court that what you have done was illegal and that I want my money back.
How, if at all, I will get this money back, believe me I do not know.
Let me explain why this bill will be the license to illegality if it is passed by Parliament. Imagine that you know that I am going to be abroad and so you notify me at home or at my work place. Of course, the family will little know that if I do not reply within 30 days it means that I am acknowledging the debt. So you will automatically be crowned my creditor. It is the same with notification. We all know how many false declarations are made in court that the defendant still lives in such and such an address so that they can be authorised by the Courts to publish the judicial letter in the newspapers.
Our courts no longer hold the practice to oblige the plaintiff to produce an extract of the latest electoral register which shows where the defendant is living so that it is convinced of his present abode before authorizing the publication. The end result is that this notification will be tantamount to a court judgment if you do not reply within 30 days.
This is a very serious matter which should not be taken lightly because from now on one is obliged to leave instructions at home or at your place of work so that any letter which you receive and which was filed in the Magistrates Court be referred immediately to a lawyer. You must also now have in hand a copy of the Government Gazette because without knowing it you will end up with less money in the bank or with your furniture seized by the court.
The bill makes it so obvious it is another attempt to undermine the judges. It allows the plaintiff to decide to have the lawsuit which was started before the judge to continue before a magistrate. Unbelievable but true.
But this is not all: the bill also proposes that cases relating to traffic accidents and condominium must go to arbitration and the term ‘Mandatory Arbitration’ is for the first time in our civil procedure.
First we had mandatory mediation in the family court, now we have mandatory arbitration. This means that you must, whether you like it or not, go to arbitration if you have a motor traffic dispute.
Now whether the arbitration centre is going to move to the law courts, I do not know, but I would not be surprised. The court has already branched out as a mediation centre, as a tribunal centre and now the likelihood is that it will also become an arbitration centre, keeping in mind the fact that the arbitration building does not have adequate space.
The sad thing about it is that there is no such thing as the Mandatory Arbitration that has been devised in bill 27. First of all, in other countries it is the Supreme Court that is empowered by the law to promulgate rules and adopt procedures to establish mandatory arbitration and not the government. Secondly, not all civil claims which fall within the jurisdictional amount automatically force it into arbitration. Also, a party who believes he or she has a reasonable basis for removing the matter from arbitration may move the court for such relief prior to hearing. The award can also be rejected and the case proceeds to trial but no additional evidence may be heard except upon leave of court for good cause shown.
Whether this procedure shall be more or less costly than the court system, we do not know because Bill 27 says it shall be the Arbitration Centre which will determine the costs and the fees.
What I do know, however, is that the insurance companies have already expressed that they will be more costly than the Small Claims Tribunal. And incidentally, chairmen of these tribunals were not allowed to hold more sittings to save on expenses. So I would not be surprised if this mandatory arbitration was introduced as a measure to cut on government expenses.
There is no doubt that Bill 27 is another attempt by the Parliamentary Secretary for Justice to ease the court congestion or rather the judge’s congestion, I would say. He knows that his only control on the judges is to try and take from them as much work as possible and sell the bill to the public as a cheap, fast and effective relief. But what the public should know is how bill 27 is more geared towards the abusive than towards the abused.
It is so evident that statistics and not justice is the word and the bill does not provide for an efficient execution of the title. What is the point of going through the fast track to get an executive title and then find you at a snail’s pace trying to have the title enforced. Dr Carmelo Mifsud Bonnici knows that execution is a laborious task: first file executive warrant, than file a judicial letter in case of garnishee warrants, and then plead with the banks to deposit the moneys in court, if any, and then plead with the court to authorise you to take the money. And in the meantime all these expenses will have to be deducted from the amount awarded to you on the fast track. So Bill 27 ought to regulate the execution of titles as well.
I believe that our Parliamentary Secretary for Justice ought to divest himself for some time from his executive role and invest the robe that he had before his appointment. It is so sad that such initiatives such as Bill 27 are coming from somebody whose family - and he himself - always advocated the rules of natural justice and the independence of the judiciary. It is true that the Executive must check the judiciary and vice-versa, but now we have come to the point where checks on the judiciary are only carried out by reducing their workload.
Bill 27 awards the judges of the Court of Appeal and the magistrates as the good guys and the judges of the Civil Court as the bad guys. It also puts the public and us lawyers as the joker between them!
If only ‘Page 13’ was still alive!
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