The law, the court, and I: from the personal to the universal

Everyone talks about a seemingly endemic malaise in Maltese courts, and many of those who go to court for justice often end up suffering greater injustices along the way. At the same time, confidence in the independence of members of the judiciary is widespread. I am also aware that most members of the judiciary work hard.

So what accounts for this endemic malaise? The most visible part of it (and what people lament about most readily) are delays or cases dragging out, but after much research I see the delays not as a cause of the malaise, but simply one of the symptoms. And in the past few years I have started seeing a new contradiction: misguided efforts to tackle the delays (based on the fallacy that the delays are a cause, or independent from other elements) that are making the situation worse, creating further processes and hence new delays, and making the sense of injustice more emphatic. That’s the kind of contradiction that emerges when you focus more on a symptom and less on the underlying, widespread problem.  

And this is what I am preparing to diagnose and show. I am preparing a series of articles – and artworks – that will be part analaysis and diagnoses, part specific stories and court cases, that will serve to illustrates the nature of the endemic malaise of Malta’s justice system, and the ordeal it exacts on people who resort to court in a bid for justice. 

I gained insight after 9 years researching Malta’s justice system, being involved in various cases in various courts, constant discussions with court sources at various levels, discussions with jurists and lawyers, and thousands of hours spent reading laws and judgements and studying legal concepts and procedures. There is an idea that if you spend 10,000 hours doing something, you become an expert in it, and that is where I am: an expert by virtue of my 10,000-hour toil of research. 

The stories shall, among others, cover themes such as the following:   

• in civil courts, case management not structured enough by most courts (some courts do get it right, I will also write about these to inspire others);
• court staff not sufficiently trained, and demotivated, as well as chronic shortage of staff; 
• lawyers made gatekeepers to the justice system – the registry would even reject a pleading not signed by a lawyer, something that is at odds with law – and some of them abusing of that gatekeeping role; 
• the accountability system for lawyers and members of the judiciary faulty in law, and weak or compromised in setup (this is important because errant or incompetent members of the judiciary and lawyers end up causing a lot of problems for their colleagues and litigants); 
• people who go to constitutional courts for redress in a range of cases end up spending more out of pocket to litigate than is awarded in constitutional courts after they win; 
• the committee that appoints members of the judiciary not being thorough enough in assessing candidates, and failing to check for track record or quality of decisions and case management in assessing candidates for promotion from magistrate to judge;  
• pressure on members of the judiciary to be expedient resulting in hasty judgements and/or poorly thought-out decrees, in turn further clogging the system by appeals and human rights cases; 
• no accountability for court experts who get it wrong or create delays due to indifference or incompetence; 
• badly-written laws, with provisions that are unworkable and perplexing and even illegal (or in clear breach of human rights principles), something that creates endless litigation and human rights cases; 
• tribunals that make bad decisions that then generate further appeals in court, further straining the court system – worse of these tribunals is the planning tribunal, which often makes a travesty of law or legal principles;  
• the police are also part of the problem, especially in minor cases, simply processing the cases and escalating them to court to let the magistrate decide – instead of deciding themselves whether to prosecute on basis of law, evidence, and proper investigation (the law actually obligates the police to investigate thoroughly before charging, but in many cases this is not happening). This further clogs the system – and creates injustice to people – by unwarranted prosecutions;   
• and much more

Court processes are also outdated and inefficient, and there is a tendency in some quarters to enforce rules of procedure pedantically.

There is also no excuse for not having a more modern, online-based system as other European countries have, especially given the money that is now being poured into the justice system. 

In fact, the endemic nature of the malaise of the justice system can be encapsulated by this paradox: Malta now has the highest per-capita expenditure on justice in the EU while simultaneously having the longest delays and one of the worst track records in the European Court of Human Rights, Europe’s highest human rights court. (This has been extensively documented by justice grandee and retired judge Giovanni Bonello, who served at the European Court of Human Rights for 8 years.) 

Another thing that is creating systematic problems is the quality of many graduate lawyers, especially the ones that are employed by the State Advocate and, to a lesser extent, the Attorny General. The State Advocate are the lawyers that advice departments and state entities, in some cases draft laws or assess drafts, and represent State organs in court. I have seen pleadings, and submissions, by many of the lawyers of the State Advocate that oddly get it wrong on basic principles of law (and it makes you wonder what they were learning at University, or whether they learned much beyond parrot-type memorisation). I see a similar pattern when it comes to lawyers employed by government departments and entities. 

I am able to write about all of this thanks to my status as the 10,000-hour-expert. I have also participated in misconduct proceedings against a lawyer, and made two official complaints against members of judiciary. 

I shall name the series The Law, the Court, and I. The ‘I’ in the campaign or series title represents the travails and struggles of the story protagonist (the personal), which then serve to draw out, and show us, larger truths about what is what is wrong and why.  

Through such revelation I also seek to inspire community interest.

Community interest obviously needs a community: fill in the form below to subscribe to a newsletter specifically about this series. In addition to announcement on publication of new stuff, the newsletter will also at times have exclusive content not published on this website or elsewhere.