The government last Friday published a white paper proposing changes to improve the administration of justice. In this interview, Parliamentary Secretary Carmelo Mifsud Bonnici tells Matthew Xuereb about the government’s plans to make the system more efficient.
Are you blaming the judiciary for the problems in court?
Not at all. The government does not want to start a crusade against the judiciary. On the other hand there is a problem that has to be solved. We are trying to motivate these people to work faster but ways of doing so still have to be discussed. I don’t think the situation would change much if we appoint another judge. What we need is the state to correct any anomalies in the law which are slowing down the court processes. The ex tempore judgements would also cut down on the time it takes to decide a case and there are also other proposals which aim to help the judge or magistrate.
Another idea being proposed concerns remedies for unnecessary delays whereby if a lawsuit has been pending before a particular member of the judiciary for three or more years, a party to the case may present an application to the Chief Justice requesting that the presiding member of the judiciary be changed and the case assigned to another. Around 70 per cent of the cases have already passed the three-year mark. This is an extraordinary remedy.
But the workload will increase elsewhere….
Yes, you’re right, but bad light will be shed on the member of the judiciary who is changed. The judge or magistrate is paid by public funds so he has to be accountable. People want to look at the judiciary as being composed of people who are honest and have integrity, which is true, and as people who are fast in their work.
The administration of justice costs the government Lm3.7 million. Out of this sum the government recovered Lm1.5 million, most of them from tariffs charged in the registries of the civil court and Lm620,000 from criminal cases.
How did you prepare the white paper?
The white paper has been in the making for around a year with a number of changes which many lawyers always dreamt of. As a lawyer there are many things which I always thought should be addressed better in court.
The time factor is one of the most frequent complaints heard from people who come into contact with the justice system in Malta. Many people who file a case in court feel sorry that they filed the case in the first place because of the time it takes for the judgement to be handed down. At the moment the reputation of the law courts is that these dispense justice correctly but it takes years to do so. Imagine ordering a suit to wear for work and the tailor tells you that you can pick it up in five years time.
The court has to understand that we are not living in a world where the Maltese society revolves around it. A long-winding case has an effect on the social well-being of the parties involved. Moreover, it also has an effect on the country’s economy because if I filed a case to retrieve Lm20,000 which someone owes me and it takes the court 10 years to hand down the judgement in my favour, the Maltese economy is being affected because there is Lm20,000 less in the economy.
Possible investors take the judicial system into consideration when considering whether to invest in a specific country. Our present system is under scrutiny not only by the Maltese citizens but also by those who have social and economic relationships with Malta.
The world development report issued by the World Bank states that: “Once a court has been established, its efficiency is defined in terms of the speed, cost and fairness with which judicial decisions are made and the access that aggrieved citizens have to the court.” In addition, the report states that: “Countries differ significantly in terms of the duration of simple civil litigation related to commercial disputes. It takes less than three months to reach a judgement on small debt collection, equivalent to five per cent of Gross National Product per capita, in Denmark, Japan, New Zealand, Singapore and the United States. In contrast, it takes more than two years to reach a judgement in Colombia, the Czech Republic, Kuwait, Malta, Mozambique and the United Arab Emirates.”
But it pays lawyers to procrastinate….
We cannot generalise. It does not pay all lawyers to procrastinate. If a lawyer drags on and on, he will have to study the case over and over again before every sitting. So at the end of the day the lawyer will suffer more. There are lawyers who do not charge their clients every time they have a word with them. How am I going to create the right incentives to change the mentality of Maltese people that it will not take the court ages to hand down a judgement? This is why most of these proposals in the white paper have been included.
Not only time is a deterring factor. What about the court expenses?
Court expenses do not motivate people to file a lawsuit. The amounts of cases have reduced drastically in recent years and court expenses surely had an effect on this. There were many cases which were filed just for pique. Now, with the expenses involved, it doesn’t pay me to file these types of cases.
But this affected people who were in the right but could not afford….
There were people who were affected and others who were not.
Any plans for a revision to bring the administration of justice closer to the people?
The administration of justice will be brought closer to the people if we manage to get lawsuits to be decided faster. My experience as a lawyer is that people are prepared to pay as long as there is no delay. People used to ask me if they could pay a little bit extra to speed up the process. I am sure that the court expenses affect some people but the time factor is more important. The drive is to reduce the problems which are lengthening the time it takes for a case to be decided.
One of the proposals is to have one judge who will only preside over cases which involve property and these cases will be heard like a trial by jury. There are around 800 pending cases involving property because most of these cases are complicated.
How many pending cases are there?
There are around 7,240 civil cases, 1,013 pending cases before the family court, 1,735 civil inferior cases, 2,178 small claims, 8,418 criminal cases and another 1,620 criminal cases with a compilation of evidence.
What about the proposal of ex tempore judgements?
Ex tempore literally means off- hand, without preparation. There are some cases where ex tempore judgements, without going into so much detail, can speed up the proceedings. On the other hand, not explaining the reasoning behind the decision taken by the court may be a disservice so we have to strike a balance in certain cases.
There is a proposal to stop the media from publishing the names of people charged in court. Are we going to start protecting criminals?
No, that is not our final aim. Everyone charged in court is innocent unless proven guilty. Trials by the media can be very damaging but there will not remedy once the damage is done. I will mention just one case: someone who was accused, outside court, of corruption. He had to leave his job and he and his family faced many problems. The media put him in bad light with allegations of corruption and his case was brought before the Corruption Commission which found no wrongdoing on his part. What remedy does he have? What we are saying is that we should strike a balance between what the public is entitled to know and the extent of information being received by the public because people who were portrayed as criminals were not in fact criminals. As things are today, there is no balance and it can lead to abuse. This service is turning into a disservice.
The last question and I will let you get on with your work. What are your expectations on this white paper and do you expect consensus from both sides of the House?
A lot of work was put into this document. I am sure that a lot more has to be done but you have to start from somewhere. However we are taking the bull by the horns to improve the judicial system. I had people tell me that it would better if nothing changed. On most points I expect consensus but on others I cannot expect this. The most important thing is that we are discussing these issues. After receiving feedback I will either improve on what has already been proposed or delete the proposal altogether. I would rather have the former than the latter.