Luigi Pirandello is one of my favourite writers. Apart from the fact that he was the inspiration behind the choice of name for my son, he was a master in showing how art and illusion mixes with reality and how people see things in very different ways. In his writings and plays he illustrated, most remarkably, how words are unreliable and reality is at the same time true and false.
The Parliamentary Secretary responsible for justice, the gentlemanly Dr Carmelo Mifsud Bonnici, is on a course to hell in trying to speed up the administration of justice. It seems that the Deputy Prime Minister has given his junior minister a free hand in overhauling the Code of Organisation and Civil Procedure, as Dr Borg’s attention is currently fine-tuned to deal with internal party squabbles, rising crime figures, a disenchanted police corps, an ailing economy and unsustainable influxes of immigrants, a tall order indeed. This week, in his preamble to the media, announcing his next dose of “reforms” to Court procedures, Dr Mifsud Bonnici boasted that his Government has managed to reduce substantially the number of cases pending before the superior and the inferior courts.
He then went on to quote statistics, emphasising, with glee, that in August 2005 there were no fewer than 1,578 cases pending before the Magistrates’ Courts, whereas today this number has been reduced to 1,335, thanks to the introduction of the executive judicial letter in lieu of due process before the ordinary courts.
I thought that if there was, in fact, an improvement – a reduction of a mere 240 cases – it was rather poor considering the pomp with which the novel judicial letter was introduced in Parliament last year. The reduction amounts to a silly 20 cases less for each magistrate in nearly a year. A reform that had to radicalise the then prevailing regime would be expected to halve, at least, the number of pending cases.
Indeed, later on in his speech Dr Mifsud Bonnici mentioned that the executive judicial letter is such a success that it is now an accepted practice and no fewer than 300 of these letters are filed in the registry every month. A simple mathematical computation will leave me with no doubt about the patent failure of the executive judicial letter. If there have been no fewer than 300 letters filed every month since their introduction in November 2005, then an average of 3,000 letters must have already been filed by August of this year – which means that 3,000 letters have had the effect of reducing the backlog by a mere 240 cases before the Magistrates’ courts. In reality, what is happening is that the great majority of debtors, notified according to law with executive judicial letters, are filing objections and rejecting the claims in terms of section 166A of the Code of Procedure. The objection renders the judicial intimation useless and unenforceable.
All this means that creditors who have resorted to the use of the executive judicial letter and have then been faced with an objection filed by the debtor have had no alternative but to resort to judicial proceedings in the ordinary way. It is true that some intimations that have not been objected to by debtors may have served their purpose, although it still needs to be seen whether creditors have been able to recuperate their money. But it is also true that the majority of creditors have sought, or are contemplating seeking, ordinary recourse to litigation by the filing of lawsuits when the judicial letters they file meet with an objection in terms of law.
Of course, the creditor will have had to pay substantial amounts of registry fees to file the executive judicial letter in the first place, depending on the value of the claim – which means that apart from being time-consuming, the new system is also a good revenue generator for government and an added cost to business, depending on the side from which you are seeing things – in true Pirandellian style. The fact is that if the judicial letter does not produce the intended result, the creditor will have to pay his way to the courts again to file a lawsuit.
I know for a fact that many lawyers are bypassing, or contemplating bypassing, the new executive judicial letter and are directly filing litigation in court in the traditional sense. This is not about being conservative, it’s all about being practical. I also know that big corporations and public liability companies, having longer lists of debtors on their books, are thinking along the same lines and that they have received frantic calls from government sources asking them not to abandon the executive judicial letter so quickly. Government is reducing the administration of justice to a shameful game of statistics.
As part of the general reform of the administration of justice, certain classes of cases have been transferred from the ordinary courts to the Malta Arbitration Centre. Dr Mifsud Bonnici conveniently forgets to include the number of cases now pending before the arbitration centre with the official number of cases pending before the courts. The fact that a case has been transferred to another tribunal does not mean that that case does not fall under the general category of litigation. On account of the “reforms” introduced over the last couple of years, it is high time for Dr Mifsud Bonnici to introduce another reform on the compilation of statistics. Instead of harping on about court statistics only, he should look at the wider litigation statistics before he starts blowing any trumpets. He will learn that the results are not the same.
Pirandello wrote: “I think that life is a very sad piece of buffoonery; because we have in ourselves, without being able to know why, wherefore or whence, the need to deceive ourselves constantly by creating a reality (one for each and never the same for all), which from time to time is discovered to be vain and illusory... My art is full of bitter compassion for all those who deceive themselves; but this compassion cannot fail to be followed by the ferocious derision of destiny which condemns man to deception.”
Dr Gulia is main opposition spokesman for Home Affairs