Chief Justice: Under-resourcing of Civil courts an ‘emergency situation’

The under-resourcing of the Civil Courts is an “emergency situation” that is not being addressed with the required urgency, Malta’s top judge has said in his speech marking the start of the new court calendar after the Summer break.

Chief Justice Mark Chetcuti pulled no punches in his speech marking the start of Sena Forensi, with wide-ranging criticism of the judiciary’s impossible workload, shortage of quality staff, and the exploitation of the lack of public understanding of the law to advance “hidden goals.”

Mr. Justice Chetcuti stressed the need for more specialised courts and related registries to ease the current bottleneck. Thanking the Justice Minister for issuing a new call for members of the judiciary to staff the commercial section of the Civil Court, the Chief Justice said he hoped that the decision would soon be taken to have specialised courts, served with premises, administrative registry, and a dedicated cohort of clerical staff.

Although two new judges had been appointed to the Court of Appeal, over the past 18 months the number of new Constitutional cases had increased to such an extent that it had caused delays to civil and commercial cases, Mr. Justice Chetcuti said, while thanking the minister for the practical measure of appointing the new judges before the retirement of those they will be replacing, saying he hoped this would become the new norm.

Photo: James Bianchi/mediatoday

He thanked the two judges who will be retiring this year, Mr. Justice Joseph R. Micallef and Mr. Justice Tonio Mallia and paid tribute to their long and upright service, as well as for their contribution to the understanding and implementation of the law.

There was also a need for updated technology and adequately qualified staff, said the Chief Justice. Even though the problem had been mitigated somewhat last year by the recruitment of more staff, “the need for quality staff is still felt at every level.” This aim is only possible if attractive conditions and constant training are provided, he said. “It is useless to have a clerk, for example, who doesn’t write well in English or in Maltese, or registry workers who do not recognise the types of acts which they handle.” Without an adequately trained staff complement it would not be possible for the judiciary to perform their duties, he said. 

Not enough awareness of how the courts work

Chetcuti said he was of the opinion that there was not enough understanding about working in court, how procedures are carried out and the interactions between the judiciary, the parties, and the lawyers, especially in the working of certain laws which capture the public’s interest. Also why some judgments appear inconsistent or unclear, when in the vast majority of cases, this is due to lack of knowledge on the part of the power and discretion of the court. “How can you have an opinion on a legal event which is not explained properly in a critical, clear and objective manner without any other hidden interest?”

Whilst access to the courts is a fundamental right, the judge pointed out, it did not mean that this access will necessarily give the person success in obtaining the desired outcome.

The judge must apply the law but also protect society from those who seek to undermine the law or hold themselves above it. “The justice system must be close to the people,” he said, going on to say that this requires the people to have a basic understanding of the role of the judiciary, the court officials and procedures. 

This knowledge was needed in every sector, “starting from schools which should foster knowledge of how the justice system works, especially where rights and obligations of citizens in a democratic society are concerned.”

The Chief Justice suggested educational programs be created and broadcast in collaboration with the justice system, dealing with the various legal disciplines and their implementation. The resources available to the Ministry for Justice would be of great help in this endeavour, Chetcuti added.

“Alongside this, the legal profession must be an authentic and disciplined one, aimed at helping avoid unnecessary obstacles to cases being heard in court and maintaining “the delicate balance between the duty towards the client and loyalty to the judicial process.”

This move had to take place today to avoid further unnecessary damage, he said.

“In spite of all this, we must admit, and cannot continue to hide from, the reality of a system which is not giving the expected results in a democratic European state,” said the judge.

The Criminal, Family, and Gozo courts as currently staffed are “just about keeping their head above water,” in handling the increasing number of cases of ever-greater complexity, “caused in my opinion, by the great number of people and legal entities which in recent years have come to live or have some legal connection with Malta and whose legal problems must be addressed by our courts.”

The problem was most acute in the Civil Courts and the Courts of Magistrates, Chetcuti said “because the situation is such, that in my humble opinion, is equivalent to an emergency in the judicial sector which must be addressed with the required urgency.”

Although statistics show an increase in Civil and Constitutional court cases, year on year, the number of judges and magistrates had remained almost the same, added the Chief Justice. Every member of the judiciary cleared 150 cases every year on average, he said, “one every two days.” “Every judge of the Civil Courts has an average of about 500 pending cases on their lists. The picture that emerges from this number is the Biblical writing on the wall. It is impossible for the Civil Courts to keep up and administer justice within a reasonable time with this volume of pending cases.”

While promising his full commitment to get through that backlog, he urged the State and all those involved in the sector to find a solution “today, not tomorrow.” 

“False” distinction between magistrates and judges

The lower courts, which fall under the remit of Magistrates, were also drowning in work, said the Chief Justice. Nearly every magistrate hears every type of case, criminal, civil and sometimes a mix of both, in the same day. While welcoming the addition of a magistrate who will only preside over domestic violence cases, the Chief Justice insisted that his firm belief was that the situation would never start to get better before the courts are divided into specialisations, “and with them removing this distinction which to me today, is false and pointless, between magistrates and judges,”  each court accommodating an adequate number of members of the judiciary.

Magisterial inquiries

“The greatest wound,” said the Chief Justice, “is the procedure and volume of magisterial inquiries and compilations of evidence which completely hinder the operation of the Courts of Magistrates.” He welcomed the upcoming call for applications for inquiring magistrates, saying that it was a first step towards the creation of an autonomous Inquiring Authority which would serve the technical and forensic needs of inquiring magistrates.

Operating from an autonomous location, they must be able to conclude within a short time and be furnished with sufficient staff and equipment.

In addition to the recently created Commercial Court, Malta also needed an Administrative Court to handle cases dealing with public administration, said the judge, pointing out that such courts exist in every other European country.

“Quality and efficiency cannot be reached if we continue to think that judges should do a bit of everything.”

Personal conduct

The judiciary bore a great responsibility, being entrusted by complete strangers with issues relating to their liberty, property, family, income and human rights, Chetcuti reminded. 

“Together with this responsibility comes  the commitment and sacrifice to do our best and not disappoint society, rather that we should become worthy of its trust through our actions.”

“To do so we must keep our distance from every act, whatever it may be, that could lead to behaviour that gives rise to negative comments.”

The Chief Justice reminded the members of the judiciary that they must maintain awareness of what is happening around them, but at the same time could not continue to participate in social or public life in manners that are incompatible with their position.

Judgement must be delivered clearly and without fear of criticism, with a clean conscience borne of the knowledge of the law and relevant facts “and with a sense of justice, right and humanity.” Chetcuti urged the judiciary to hold back from using hurtful words. “We must be stern with those who deserve it, but this is not a licence for lack of restraint.” On the other hand neither should they permit misbehaviour before the courts from anyone, said the Chief Justice.

“It is not easy for the judiciary to spend years living without certain freedom of expression or action, with your mouth closed and a very limited private and social life and with your families suffering too. But we chose to do this freely, with our eyes open.” The judiciary deserved to be adequately compensated for their service, he added.

Mr. Justice Chetcuti expressed great disappointment at instead of hearing constructive criticism aimed at improving areas of weakness, “hearing or reading declarations, comments allegations and suppositions which are not only factually or legally baseless, but which are clearly aimed at hurting the individual member of the judiciary.”

“It is painful to hear or read on the media, from journalists or opinionists and sometimes also from high ranking and powerful officials in the public administration…who by their actions are publicly casting a shadow over the member of the judiciary in such a way as to trip them up, weaken them, in their duties or worse, the dignity of the individual member of the judiciary or their family.”

“When this is done maliciously, with the aim of deceiving, or chip away at the public trust in the judiciary or the justice system, for other hidden reasons which definitely are not aimed at ensuring justice is done, this is disgusting.”

“If you want a strong judicature, do not try to break its foundations,” said the Chief Justice, describing it as a “dangerous game” while promising that “the judicature will not succumb to provocation or intimidation, wherever it may come from.” He stressed that the judiciary’s silence should not be interpreted as a sign of weakness, but as “the essence of the spirit of those who are called to judge others,”  assuring those present that they will continue to do their duty without fear or favour.

Is society mature enough to have a Court media office?

Chetcuti said he was regularly faced with the dilemma of whether or not to have a Court media office. “Are we mature enough as a society to have a media office in court? And if such an office is to be set up, who will finance it? Who will be responsible for it? Up to what point should there be interactions with the public and social media? Where do we draw the line?”

The Chief Justice said that when we have the proper answers to these questions, while catering to Maltese cultural idiosyncrasies, then the time has come to set it up.

On the other hand, he stressed that the judiciary must also be accountable for its actions and was not above the law.

Chetcuti observed the often negative public comments underneath media articles about the sentences meted out to criminals.

While stressing that every case must be dealt with on its own merits, he suggested a sentencing policy be drafted internally by the judiciary. “But there is another solution. Laws are made in Parliament,” he pointed out. Parliament should have its finger on the public pulse and if it felt that the judiciary had too much discretion in sentencing, it had the power to reduce this discretion to avoid these complaints, “which I have no hesitation in saying, can be more than justified.” 

There was no point in criticising the judiciary for using the discretion afforded to them by law, he said.

Policing the judiciary

On the other side of the coin, Mr. Justice Chetcuti also proposed a strong structure for the monitoring and internal discipline of the judiciary, to address difficulties before they become larger problems, as well as to address shortcomings “with the seriousness and severity that is expected.”

He proposed an internal standards watchdog to constantly scrutinise and monitor the behaviour and comportment standard of the judiciary. Every issue that could “stir particular attention” would be referred to the Chief Justice in order to allow him to have the facts and act as required by the Constitution. 

The Constitution already empowers the Chief Justice to send misbehaving members of the judiciary before the Commission for the Administration of Justice. But to do so the Chief Justice must be armed with facts which have been confirmed independently and objectively, Chetcuti said, adding that the Chief Justice should also be subject to this oversight.

As things stand, it is just one of the wide spectrum of judicial, administrative and European work that is expected of him, said the Chief Justice. “To act as the police and prosecutor as well is no longer practicable, besides the fact that the Office of the Chief Justice to date does not have the administrative setup required to assist him in carrying out his various functions.