The Malta Independent 26 May 2024, Sunday
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The unfinished business at the Law Courts

Mark Said Sunday, 14 April 2024, 07:42 Last update: about 2 months ago

Timely delivery of justice is necessary to promote access to justice and procedural fairness, even in times of crisis. While the Maltese justice system is no stranger to court backlogs and delays, the COVID-19 pandemic increased pre-existing challenges by forcing our courts to postpone large waves of criminal, civil, and family cases. As a result, judges and court administrators identified, to different degrees, a need for our courts to implement proactive and effective strategies in the short term to help move cases forward quickly, fairly, and effectively for all involved. Whether the desired results were delivered or not remains an open question.

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Anecdotal evidence suggests that our courts are still being disproportionately impacted by adjournments and delays, whether warranted or not. This could be due, at least in part, to many cases being held up in courts of first instance and not advancing to the appeal stage. As such, while our courts will be looking to address their current caseload and any anticipated floodgates of litigation that might arise from multiple issues, appeal courts may wish to plan for a possible surge of cases in the near future.

While a longer-term reduction of delays might involve broader considerations relating to legal reform, institutional and technological resources, and alternatives to formal litigation, our courts may achieve important efficiencies within existing frameworks by promoting a culture shift amongst all participants in the justice system in the short term. Such efficiencies may, in turn, alleviate some of the legal, institutional, or resource-related challenges initially identified.

Whatever our political persuasion or our particular conception of justice, there can be no doubt that Maltese today expect a just society. They expect fair laws and practices. And they expect justice in their courts. Yet, there are still too many challenges to be overcome in assuring Maltese men, women, and children a just and efficacious justice process.

It is a pity, though, as we have all it takes for Malta to boast of a strong and healthy justice system that is looked to by other countries as exemplary. We might not have well-appointed courtrooms, but they are presided over by highly qualified judges. Our judges are independent and deliver impartial justice, free of fear and favour. There is still not enough public confidence that judges and magistrates are committed to rendering judgement in accordance with the law and based on the evidence, or that corruption and partisanship are non-issues. The authorities have to work harder on these issues in order to make amends.

Yet, like every other human institutional endeavour, justice is an ongoing process. It is never done or fully achieved. Each decade, each year, each month, and indeed each day, brings new challenges. Malta's society is changing more rapidly than ever before. So is the technology by which we manage these changes. Thus, it should not come as a surprise that Malta’s justice system, in 2024, faces challenges. Some represent familiar problems with which we have yet to come to grips. Others arise from new developments and require new answers.

The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is therefore critical. Unfortunately, many Maltese men and women still find themselves unable, mainly for financial and related reasons, to access the Maltese justice system. Some of them decide to become their own lawyers. Our courtrooms occasionally experience litigants who are not represented by counsel trying to navigate the sometimes complex demands of law and procedure. Others simply give up.

The Maltese legal system is sometimes said to be open to two groups: the wealthy and mega companies at one end of the spectrum and those charged with serious crimes at the other. The first have access to the courts and justice because they have deep pockets and can afford them. The second have access because, by and large, their large illicit financial gains enable them to pay the most highly paid and established criminal lawyers.

It is obvious that these two groups leave out many Maltese. Hard hit are the average middle-class Maltese. They have some income. They may have a few assets, perhaps a modest home. This makes them ineligible for legal aid. But at the same time, they may be quite reasonably unwilling to put a second mortgage on the house or gamble with their child’s college education or their retirement savings to pursue justice in the courts. Their options are grim: use up the family assets in litigation, become their own lawyers, or give up.

The result may be an injustice. A person injured by the wrongful act of another may decide not to pursue compensation. A parent seeking custody of or access to the children of a broken relationship may decide he or she cannot afford to carry on the struggle, sometimes to the detriment of not only the parent but the children. When couples split up, assets that should go to the care of the children are used up in litigation, and the family’s financial resources are dissipated. Such outcomes can only, with great difficulty, be called "just".

On the civil side, there are also a number of reasons why lawsuits have become longer. Although Maltese rules of procedure impose limits on the production of evidence, they are still too broad, allowing parties to canvass issues that are not relevant and material to the issues in the litigation. This results in longer and more expensive proof and a larger volume of evidence being placed before the trier of fact at trial. The expanded use of expert witnesses has also lengthened trials. Efforts at reform are underway but are hardly making any headway.

Lawyers are increasingly finding the difficulty of their tasks greatly increased, driving up the costs for their clients. Judges are all the more stressed and burned out, putting further pressure on the justice system. And so it goes. The bar and the bench are attempting to improve the situation. Some modest progress is being made. All this is good. Yet much more needs to be done if access to justice is to become a reality for ordinary Maltese.

 

Dr. Mark Said

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