Let’s go for specialised courts

While announcing plans to re-establish the Commercial Court as an independent entity to address commercial cases more efficiently, Prime Minister Robert Abela declared that the next step towards progress is the specialisation of the judiciary.

This is a move forward that I believe both our judiciary and the legal profession have been longing for. Specialisation often stems from the need to adapt to changes in the law rather than from any deliberate choice. In going for specialised courts, there is an overriding need to secure the protection of fundamental rights and the quality of justice, as well as the status of judges.

Generalist judges are sometimes referred to as novices at everything and experts at nothing.

The constant adoption of new legislation, whether at the international, European or domestic level, and changing case law and doctrine are making legal science increasingly vast and complex. It is difficult for the judge to master all these fields, while at the same time, society and litigants demand more and more professionalism and efficiency.

Specialisation of judges can ensure that they have the requisite knowledge and experience in their field of jurisdiction. An in-depth knowledge of the legal field in question can improve the quality of the decisions taken by a judge. Specialist judges can acquire greater expertise in their specific fields, which can thereby enhance their courts’ authority.

Improving efficiency and expertise in corruption cases is one strong reason for establishing judicial anti-corruption specialisation in our corruption-laden country.

Concentrating case files in the hands of a select group of specialist judges can be conducive to consistency in judicial decisions and consequently can promote legal certainty.

At the moment, our court system may find it impossible to set up specialised courts or an adequate number of specialised judges. Our judges, one must remark, have always been versatile and always proved themselves to have the ability to address a range of specialist matters. One must therefore be wary of having an excessive individual specialisation of judges, as this might hamper this necessary versatility.

We could perhaps emulate some EU member states where some specialist courts or tribunals consist of one or more judges with legal training and one or more members of the court or tribunal who are non-lawyers. Frequently, these “non-jurist judges” either represent one or another group of interests or have a specific expertise appropriate to the specialist court or tribunal concerned.

In Austria and Italy, for example, a stronger specialisation of the judiciary has been introduced in the last two decades, resulting in higher-quality decisions from which no appeal can or need be taken.

Professional judges may become specialist judges by several means. It may be using experience gained either as a specialist lawyer before appointment as a judge or as a result of experience in specialist work following the appointment as a judge. Alternatively, the specialist judge may have received specific training in a specialist area of the law or a non-legal area and then been appointed to a specialist court or deal with specialist cases in a general court.

Should we go for specialised courts, we should still permit a certain degree of versatility in the judges so that there can be flexibility in dealing with all types of cases at the higher level. This flexibility is necessary to ensure that appellate courts fulfil their legal mission to guarantee consistency in the interpretation and application of legislation and of case law. Also, this flexibility would ensure that a specialised area is not dealt with, at an appellate level, by too narrow a group of judges, who might then be in the position to impose their view in a certain field and thus prevent developments of the law in that area.

Of course, getting to the point of being able to establish specialised courts in the first place can be very difficult, and those behind the changes can face multiple problems and challenges from several quarters. Any kind of reform challenging the status quo disrupts the existing institutional structure and culture. As such, it is likely to meet resistance from various quarters.

Furthermore, many problems and challenges can arise once the new specialised courts begin their work. Resistance to the new specialised courts can be a pushback against a change to judicial culture, but it can also be a response to the tension between the political need and the internal needs of our judicial system.

The specialisation of courts can be carried out in the following forms: The creation of an independent system of specialised courts, the organisation of separate courts in our present system of general courts, or employing the formation of a specialised composition of the court.

Whichever form is adopted, specialist judges and courts must be provided with adequate human and material resources, especially information technology.

Above all, the role of the judge as a member of the judiciary must remain unaltered. The specialisation of judges cannot justify or demand any deviation from the principle of the independence of the judiciary in any of its aspects, namely the independence of both courts and individual judges.

The sustainability of any reforms brought about by the introduction of specialisation in our courts depends on many factors, but primarily it depends on judicial will or cooperation to adjust to the changes and political will and action to give effect to the changes in full.