The Maltese Constitution, which is the supreme law of Malta, makes us proud of its limpid language, carefully crafted to protect the fundamental rights and freedoms of the individual. On paper, it guarantees, among other things, due protection of the life, liberty and security of the person and the protection of the law.

One of the relevant provisions enshrined in the Constitution states that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”

This constitutional imperative is, often and extensively enough, being honoured mainly in the breach. The gravity of the situation has been highlighted by a ruling of the European Court of Human Rights, which found that Meinrad Calleja’s right to liberty and security had been breached, because the time he spent in preventive custody awaiting trial (four years, 10 months and 20 days) “on a charge of which he was acquitted”, was not justified.

Having considered all the circumstances of the case, the court further found that the duration of the proceedings (seven years, eight months and 17 days)

was excessive, and failed to meet the “reasonable time” requirement.

In parenthesis, the outline of the Calleja story run as follows In November l995, he was arrested and charged with drug trafficking. On 15 May l996, he was charged with aiding and abetting in the attempted murder of Richard Cachia Caruana in Mdina on 18 December l994. On 4 April 200l he was convicted and sentenced to l5 years imprisonment and fined Lm30,000 for drug trafficking – a crime for which he is still serving time. On 1 February 2004, he was acquitted in a trial by jury, of the charge of aiding and abetting in the attempted murder of Cachia Caruana.

Mr Calleja, who had the necessary resources to take his case before the European Court to stand up for his rights, was awarded €5,000 for pecuniary damages and €4,832 for costs and expenses incurred.

Implications

The strictly legal implication of the European Court’s decision is best left to the legal experts. The only authoritative voice to be heard on the matter (so far) was that of the Attorney General, who reportedly told l’orizzont of 12 April that the European Court “sent a clear message to the Maltese courts and the government, which have to pay for this exaggerated delay”.

The issue is not of exclusive interest to the lawyers and constitutional experts. It is of vital interest to the average citizen who is concerned about his rights and liberty.

Statistics published last year indicated that, as of last August, there were no less than 13,200 cases pending before the courts, 45 per cent of which (nearly 6,000) had been pending for three years or more. These figures excluded the number of trials to be tried by jury. 1,215 cases were pending before the Court of Appeal.

There are very many reasons which explain why certain court cases can be time-consuming – and they are not confined to instances where lawyers or clients excel in their skills in the art of litigation. The burning issue is the unreasonable delay and the apparent inability of the powers-that-be to give flesh to the solemn guarantees enshrined in the Constitution.

Workload

It is an uncontested fact that the judiciary is overworked. The statistics quoted above give an indication of the sheer size of the workload.

As recently as last February, the Chief Justice referred to the problem of “real time justice” in the course of a newspaper interview (The Times, 5 February) and pointed at “the accumulated backlog”. In his view, this is “due principally to the fact that, for years, no one – executive, legislative, judiciary – did anything to apply the concept of “efficiency” to the administration of justice.

The result was some amendments to the Code of Civil Procedure (and even some in the field of Criminal Procedure), which, not only proved to be unworkable, but also had the opposite effect of that desired, as it actually increased the backlog.

The Chief Justice suggested two years ago that retired judges might be asked to step into the breach, at least until the backlog is disposed of. The proposal was not taken up. The Commission for the Administration of Justice advanced the same proposal in its fourth report, with the same result.

From time to time, there have been unsubstantiated suggestions that the odd member of the judiciary might not have been as assiduous or as productive as his colleagues, with the implication that the same individual or individuals are deliberately not doing their best, or are wasting their energies elsewhere.

Such specious charges have never been corroborated and, if only for this reason, do not merit attention.

Accountability

The fact remains that the courts are not delivering justice in reasonable time in a significant number of cases, and that the problem has been brought to ‘international’ attention.

The independence of an independent judiciary is sine qua non to democracy. The courts should not be harassed in the exercise of their duty. Their duty is to adjudicate impartially and without interference according to the law

The question that arises is whether or not the courts are accountable for their administrative and personal performance. That is, whether certain members of the judiciary are indifferent and whether or not they manifestly pull their weight, like the rest of their colleagues. And, if not, who is there to call the shots.

It appears that the time has come for the Commission for the Administration of Justice to carry out a critical and detailed review of the way it is performing its constitutional assignment. One of its constitutional functions is to supervise the operation of all superior and inferior courts and to submit any recommendations, or to propose such remedies it deems necessary or desirable, to the responsible Minister for a more efficient administration of justice.

The Commission is also empowered to advise the Minister of Justice on all matters that have to do with the organization of the administration of justice.

It may very well be that the Commission for the Administration of Justice has taken a number of initiatives in this direction in the past. If it did, it has not come round to suggesting solutions that would effectively protect the citizen from preventive arrest of grossly exaggerated duration. Neither has it delivered in terms of ensuring a fair hearing in reasonable time in the clamorous case that was redressed only after reference to the European Court of Justice.

The resulting situation merits serious public debate without the distractions of a media circus.

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