Chamber of Advocates president calls for sentencing guidelines, strategic investment

The President of the Chamber of Advocates has called for strategic investment in the legal sector, rather than management by crisis, in a forward-looking speech marking the courts resumption of their regular schedule after the Summer break.

The Chamber’s new president, lawyer Peter Fenech, made his maiden speech to the President of the Republic, State Advocate, Attorney General, Speaker of the House, Justice Minister and shadow Justice Minister and the assembled judiciary and members of the legal profession.

Before Fenech’s address, a minute of silence was observed in tribute to Judge Philip Sciberras, whose death was announced earlier today.

The justice sector has problems, Fenech said. “We appreciate that some are being addressed, others unfortunately being left adrift; and still others which are not easily solved in a short timeframe. I know that I will, as I have already, be given the opportunity to raise these problems in the proper fora, give proposals about how they might be addressed and insist on solutions.”

Fenech praised the appointment of new judges before their predecessors retirement, a first which he said he hoped would not be a one-off exercise. “We believe that this will lead to the justice process in cases being handled by retiring judges will be able to continue without time-wasting or hiccups.”

The legal challenges faced by Malta, both in the courts as well as in the financial sector meant that the country could not maintain a static status quo in the coming years, Fenech said.

He called for a collective holistic analysis of the situation and the desired destination. “We must ensure that the investments which are being made in this sector, the finances being spent, are invested strategically and not in reaction to crises which crop up from time to time.”

Addressing the judges directly, Fenech said : “Times are changing, there is no place for the culture of being afraid to make the necessary changes.”

The legal profession, as a whole, needed to accept and embrace the changes required to the sector. “I’m talking about the politicians, the judiciary, the lawyers, the legal procurators and all the workers in this sector.”

Failure to move with the times will lead to irrelevance, he warned. “We will end up with a sector which doesn’t attract new blood, a sector which is frustrated and inefficient.”

Every person holding a justice sector-related responsibility had a lot to offer if the spaces required were created to allow the situation to be analysed in a non-controversial environment, he said. This would allow the establishing of facts and the discovery of the solutions which would “ensure justice for everyone, so that truly every person living in Malta will be the same under the law.”

“When I say everyone, I am referring first and foremost to those entrusted with the governing of the country, members of Parliament, the entire legal profession - judiciary, lawyers, legal procurators and all those who work in this sector - but also and no less to the media, civil society and all citizens.” It was everybody's responsibility to embrace these solutions and then genuinely and competently work towards achieving them, he said.

“Time to introduce sentencing policies”

“The time has come to once again discuss sentencing policies,” Fenech said, pointing out that without such policies the appointments of new judges and magistrates brought with them uncertainty. “The time where new judicial appointees believe they have the right to change the direction of legal principles which have been employed for years, without a researched justification, is over.”

Sentencing policies would provide a reference point both to the judiciary who must decide on the cases before them, as well as to the lawyers who are called upon to advise their clients, he said.

It would also reduce the length of proceedings by avoiding the exhibition of unnecessary evidence to help conclude cases within the shortest reasonable time.

By way of example, he pointed to the computation of disability in personal injury cases and the compensation awarded in constitutional cases dealing with human rights, as well as acquittals in criminal cases before the courts of magistrates after the complainant does not participate.

The Chamber stressed the need for de-legislation of certain sectors and the de-penalisation of certain crimes in the coming year, also urging a rethink of what issues should be addressed by the inferior courts, and which should be dealt with before tribunals or other structures.

The ever-growing number of judiciary and legal practitioners called for a revision of the code of ethics and discipline which regulate them, in order to bring them up to date and make its tools more effective.

Fenech also expressed his opinions about the media. “Today in the wider sense, everyone believes themselves a journalist, everyone writes whatever they like, everyone believes they have the sacred right to express themselves however they wish, everyone twists what others have written to suit their own aims. 

“The media, journalism, is the fourth pillar of democracy. As much as it can be a force for good, it can also cause damage. The Chamber is not convinced that the media in our country is recognised and sufficiently protected to carry out this essential role. After all, today everyone knows and understands the damage wrought by disinformation, wherever it may come from,  especially on social media platforms.”

Fenech said the chamber believed that when publications get it wrong, they must immediately correct the mistakes. “But prevention is always better than cure and we must also avoid embarrassing situations that bring the profession into disrepute.”

The chamber would not hold back in its criticism where it believed it should criticise, and would not defend that which it felt should not be defended, he said.

The chamber was working hard to achieve its aim of introducing a law specifically regulating the legal profession, Fenech said. Although he conceded that it was not an easy task, Fenech pointed out that the profession had now been waiting for 15 years for this law to be enacted and that such a lengthy wait was not acceptable.

He called for more training and clearer guidelines on Anti Money Laundering and Countering the Financing of Terrorism and proposed that the ministers in charge of the financial and justice sectors hold round-table discussions with stakeholders.

Malta had to fight for a level playing field at EU level with respect to these issues and could not afford to be afraid of challenging pressures from inside and outside the EU to enforce European laws more strictly in Malta than in other member states. 

“Justice 2030” reform proposal announced

The Chamber of Advocates also announced “Justice 2030” - a proposal aimed at improving the justice system. Fenech said that in the past reforms tended to be reactionary and not strategic. “Whenever we look at this sector, when I speak to my fellow lawyers, members of the judiciary, legal procurators, with the media and moreover with citizens in court, I hear nothing but criticism.” 

The profession had to work to tackle the perception that “you should only go to court if you are guilty,” he said.

“A deep analysis of the path we are on is required. We must see where we are heading and where we want to be in the year 2030.”

“We must work together to audit all the processes which are part of the justice sector. We mustn't shy away from difficult questions… And yes we must also ask… is it too cheap to litigate?” 

Inefficiencies must be rooted out

Fenech called for the working practices in the various courts to be analysed in order to identify inefficiencies in the processes and whether they are still suitable in today’s world.

“We must identify where the delays in the judicial process are coming from, why one court adjourns sittings for three months, and others six if not seven, eight or more.”

An optimum case load must be identified for every member of the judiciary and the staff complement required for this and it must be achieved by 2030, he said.

Just appointing new judges and magistrates will not solve the backlog problem, Fenech told the assembled dignitaries. Although the justice minister must bear political responsibility for the administration of justice, realistically the decision on solutions should not be restricted solely to him or a small group of advisors, but should be the result of a wide-reaching  consultation to ensure that justice truly serves society.

Next year Malta will mark the 20th anniversary of its accession into the EU, he said, adding that the justice sector had not kept up the pace “and neither achieved European levels, much less kept up with the expectations of the people of Malta and Gozo.” Fenech said he hoped the anniversary would lead to the forward leap required in the sector

“The Justice 2030 programme which the chamber is proposing should bring us closer to achieving this national goal.”