Law and disorder | Reuben Balzan

Along with traffic and the state of the roads, the situation at the law courts has slowly but surely risen to become a number one cause for national complaint. And - again, not unlike traffic and the state of the roads - the situation seems to be steadily getting worse with each passing year.

Recently a video was uploaded to the internet, showing a queue stretching from the entrance to the law courts on Great Siege Square, Valletta, to the corner with St John's Street a block away. This, it seems, is now business as usual on certain weekdays; and until an explanation was issued by the Office of the Prime Minister (published separately on today's Letters page), the queues were attributed to security procedures.

As I meet Reuben Balzan, President of the Chamber of Advocates, for this interview, it seems natural to kick things off with an allusion to this selfsame phenomenon. He almost sighs as I describe to him the mutterings of complaint: not just about the queues, but also - perhaps more significantly - about the much longer delays in the actual implementation of justice in this country.

We've all heard nightmare stories about particular cases dragging on for 30 years and more... and most of us will have our own experiences of struggling to get to court in time for a hearing, only to be told that one's case has been deferred for the umpteenth time.

Balzan admits the issue of delays in the administration of justice may be denting public perceptions of the justice system as a whole. Nor is he impressed by justifications given by court officials that the queues were the result of changes to security.

"I am unaware of any change to the security procedures. There is still just one metal detector to walk through, as there was before. Nor is it clear why there were so many cases allotted on that particular day. However, the situation does need to be addressed, as otherwise it will only create added delays."

Balzan supplies another possible cause for such delays: namely, an apparent lack of communication, which results in too many cases being allocated to be heard on the same date. Many of these hearings, Balzan explains, will be criminal cases in which the accused has to appear for each sitting or face a possible penalty.

"This might explain why the number of people entering the building on one particular day may be much higher than on others," Balzan adds. "This issue could be addressed by a review of the system whereby such cases are allotted in the first place."

Balzan reminds me that on top of this problem there is another: "One of the worrying statistics that emerged from the recent discussion involving the Justice Reform Commission was that, at the present rate, it would take eight years for all current cases to reach closure - if no new cases were filed in the meantime."

He says this with a look of gloomy despair - and not without good reason, for this very week (like all other weeks) a number of new cases were initiated on top of all the old ones that are now steadily queuing up outside the door. Meanwhile, the rate of new cases being filed before the Malta law courts is considerably higher than the rate at which older cases are concluded. So unless drastic action is taken, Malta's backlog of cases can only be expected to grow exponentially.

As it happens, the caseload is decided directly by the Chief Justice, and interestingly enough both he and Balzan alluded to ongoing efforts to 'review' the same system in their respective speeches to mark the opening of the Forensic Year (1 October).

Perhaps unsurprisingly, both highlighted slightly different aspects of the same review: Balzan, who represents the interests of lawyers, chose to emphasise what is perhaps the thorniest aspect of the proposed reform - the issue of discipline among the judiciary, which has assumed vital importance following two high-profile corruption cases in the past decade, as well as individual complaints directed at particular magistrates over various issues.

Balzan appeared to refer to specific cases in his speech, alluding to "one or two judges who feel justified in passing inappropriate comments while presiding their cases", among other examples of injudicious behaviour.

The Chief Justice, on the other hand, deplored the lack of human resources that (he seemed to suggest) lies at the heart of most, if not all, of the problems concerning court delays.

These were Judge Silvio Camilleri's exact words: "There are currently no fewer than 29 vacant secretary posts, which means that no fewer than 13 members of the judiciary do not have the necessary support to operate efficiently."

Let's take these two issues one at a time, starting with the resources issue. One way of interpreting the Chief Justice's complaint is that the problem might be solved (or at least alleviated) just by throwing money at it. But is it really as simple as that?

"It is undeniable that the law courts lack the resources to cope with the caseload," Balzan begins, pointing towards another of the more striking findings of the Justice Reform Commission report (which he also raised in his 1 October speech). "Look at it this way - Luxembourg, which has a population comparable to Malta's, has 188 judges and magistrates. Malta only has 42..."

Building on this same comparison, Balzan points out how the European norm works out at an average of 18 judges per 100,000 persons. In Malta, the ratio works out at just over half - 9.3 - the optimal figure.

As for non-human resources, Balzan points out that the proposals made public by the Justice Reform Commission include some that would require an injection of funds. "We saw the report, and while some people may have reservations about some of the proposals, I think we can all agree that the document provides a good basis for discussion. But if you look at the proposals, you will see that they cannot all be implemented without spending money. I hope that government allocates the necessary resources to enact them..."

But this also means that the problem can be addressed by simply appointing new judges and magistrates to the bench. So if it is such a simple matter to solve, why wasn't it solved years ago? Balzan sympathises with the question, but adds that the situation is slightly more complex than that.

"Malta needs to appoint new judges and magistrates, no doubt; but the issue of delays is only one aspect of the reform. Another involves the procedures governing how judges and magistrates are appointed in the first place."

Malta is arguably unique among European countries in this respect: judges and magistrates are nominated directly by the Justice Minister, and subject only to approval by cabinet. In a country where such decisions are rarely questioned internally, this gives the minister full discretion to arbitrarily pick and choose whom to elevate and whom to pass over, with the only 'qualification' necessary being a record of eight years working as a lawyer.

Oddly for a representative of the legal profession, Balzan openly questions whether working as a lawyer should be even considered as a requirement. "Being very good as a lawyer does not mean that you will be very good as a judge," he points out. "The two positions involve completely different responsibilities, and the skills involved are different, too. I'm not saying that good lawyers don't make good judges - but it doesn't follow automatically that they will."

This is however a minor consideration, compared to Balzan's other concerns about the status quo. "The real problem concerns accountability. It is not just that there is discretion in the appointment of judges; part of the issue is that once a judge is appointed, you're basically lumped with him."

Problems, he adds, arise when one or two members of the judiciary start abusing their position. "It becomes a question of how to address the abuse without chipping away at the independence of the judiciary..."

This same situation is perhaps best exemplified by the curious case of Anthony de Pasquale, a judge who refused to hear cases in the 1990s, officially in protest against the establishment, in 1993, of the Commission for the Administration of Justice (more about this institution in a minute). He subsequently survived a parliamentary vote for his own impeachment, thanks to the support of an Opposition which claimed, at the time, to be 'upholding the independence of the judiciary'.

This case alone homes in on the precise flaw underpinning the entire system: being a Constitutional appointment, a judge requires a two-thirds majority to be impeached. In practice this proves impossible to achieve in all but the most exceptional cases. And while most judges are aware of (and uncomfortable with) the absurdity of this situation, in practice it is every bit as difficult - some would say impossible - to achieve the parliamentary consensus required to actually change it.

Besides, without entering into the merits of the de Pasquale case, it remains a fact that the independence of the judiciary is not a matter to be discarded lightly. Balzan is emphatic on the point that any solution must respect and ideally strengthen this same independence.

"I feel the moment you politicise justice, you will have taken a first step down a slippery slope," he goes on, adding that - contrary to public perceptions - it is the magistrates and judges themselves who are most uncomfortable with this situation. "The judiciary is among the first to want a reform of this state of affairs. I don't think they are comfortable with the situation at all. Remember that it is in their own interest to defend their reputation."

Nonetheless the situation seems truly hopeless from an outsider's point of view. If you can't sack a judge for political reasons, and you can't change the system whereby they are appointed or removed for the same political reasons, what options are you actually left with? 

Balzan points towards the existing Commission for the Administration for Justice as the vehicle to address such matters... even if the Justice Reform Commission has separately proposed setting up a whole new entity specifically to deal with discipline. Given that the JRC's proposal is for the members of this new body - for argument's sake let's call it a Commission for Discipline - to be appointed by the President of the Republic, who already heads the Commission for the Administration of Justice, isn't it really a case of too many commissions spoiling the broth? 

"I disagree with what is being proposed by the Commission for Justice Reform, to create a new Commission which would be made up of five or six members who are chosen by the President at his discretion after consultation. The question of discipline should remain within the CAJ, and the composition of the CAJ should remain as it is: a mix of election by the judiciary and ex-officio posts."

But there is a slight irony in there somewhere. The President of the Republic is himself a political appointee, and the same considerations regarding the removal of judges also apply to his office.

"Yes, but having the president at the helm raises the stature of the Commission... and though it is true that he is chosen by politicians, the Constitutional role requires the president to be outside and above the constraints of parliament..."

Interestingly enough, the incumbent Dr George Abela has himself publicly questioned the wisdom of entrusting the president with the task of monitoring the justice system, arguing that he doesn't feel qualified to do so.

"That is his opinion, and as such it has to be respected. But I happen to agree with the current composition of the CAJ. The president doesn't have the same discretionary powers of a minister... As far as I am aware he only has a casting vote."

So how would Balzan reform the system to remove the excessive discretion without undermining the judiciary's autonomy?

"The CAJ should retain its current composition but should be given the 'teeth' it needs to actually do something if it finds that a complaint against a member of the judiciary is justified.  Currently, the CAJ can investigate following complaints, but if it concludes that a complaint against a member of the judiciary is justified, it can merely draw the judge or magistrate's attention to it."

And the judge or magistrate is free to ignore the CAJ's recommendations? He nods. "This is why the CAJ should be equipped with the power to impose sanctions on members of the judiciary in cases where complaints are justified."

Some people out there may however doubt a proposal whereby judges or magistrates may find themselves being disciplined by their own colleagues - which is admittedly a crude way of putting it, but still, the CAJ is ultimately composed of judges, too.

Balzan sees no particular problem in this regard. "Personally I believe in self-regulation. When cases like the bribery scandal break out, it is the judiciary that feels most hurt and let down. And it is not easy to judge your own colleagues."

Nor is it easy to talk about the justice system without leaving important parts of it out of the picture; and I feel I cannot end an interview with the president of the Chamber of Advocates without asking his opinion about a situation of grave concern to anyone who finds himself under arrest at the Police Headquarters in Floriana.

In 2008, Malta enacted laws to ensure that arrested persons are offered access to a lawyer, but six years later we discover that this access is limited only to any point before (as opposed to during) interrogation. And much more seriously, lawyers often advise their clients not to avail of this right, as it could conceivably work against them in court.

"I am certainly in favour of the right to have one's lawyer present during interrogation, but this is only one aspect that needs to be addressed. One of the reasons many lawyers will advise against consultation at that stage is that, unlike all other European countries, the police are not obliged to give information about the case to the lawyer. This means that you can call your lawyer, but he or she will not able to advise you because he or she won't know what the case is about."

Meanwhile, incoming Police Commissioner Peter Paul Zammit has publicly stated that he agrees with allowing lawyers to be present during interrogations. Does this in any way change the state of play regarding the legal rights of persons in police custody?

"Not really, no," comes the reply. "Irrespective of this development, the defence lawyer should be given access to all the information held by the police about an individual being interrogated."