Judicial delays

The minister responsible for justice has been quoted as saying that one way of addressing judicial delays that is being considered by government is through increasing the members of the judiciary

Although this is a salutary measure, it cannot be viewed as the be-all and end-all solution for judicial delays. It has been applied in the past but failed miserably.

How many former ministers of justice bragged that through increasing the number of judges and magistrates they would have solved judicial delays? Innumerable. How many succeeded? None. How many ministers have bragged that through new increases in judicial salary and perks court delays would come to an end? All. How many succeeded? None.

The solution to judicial delay must start with identifying the problem.

First, there is judicial misbehaviour where the judiciary simply flout the law. This is a judicial rule of law deficit. The written law would say one thing; they do another. The law states that a case has to be heard uninterruptedly to an end but nobody observes this provision. The rule of law binds the judiciary as well.

Second, there is no study that exactly determines what is the current judicial workload of each and every court and each and every member of the judiciary. The statistics are flawed. Hence, it is impossible for a serious public administrator to chart the way ahead when the statistical data on which essential decisions are to be taken is incomplete.

To take a practical example. A case before the Civil Court, Family Jurisdiction, is counted as one case. But in the iter of that case dozens of applications are filed before that court that require the urgent attention of the judge presiding the Family court. If 20 such applications are filed, the Judge is unjustly credited with

“First, there is judicial misbehaviour where the judiciary simply flout the law. This is a judicial rule of law deficit. The written law would say one thing; they do another. The law states that a case has to be heard uninterruptedly to an end but nobody observes this provision. The rule of law binds the judiciary as well.”

one case, not with 21 cases that require 21 – not 1 - decision.

Take another example. While a magistrate sitting in a civil court holds one sitting every, say, one month to hear a case, another magistrate sitting in a criminal court conducting a preliminary investigation (kumpilazzjoni) might end up holding ten sittings (if not more) on the same case within a month. But both magistrates have been assigned one case.

Unless an exact workload calculation formula is devised, it will not be possible to establish with precision the exact judicial workload and then identify the exact number of vacancies that need to be created. This is a scientific statistical exercise and has to be carried out by an expert in the field. It is only then when one knows the exact figures that one can involve experts in management to come up with a human resources deployment plan that would take into consideration not only court statistics but other matters such as mandatory time for judicial training, vacation leave, sick leave, other forms of leave (parental, etc), judicial burn out and stress, as well as other factors that are strictly related to procedural issues that might detract a judge from completing his/her task. A succession plan would also need to be worked out.

To give again a few examples. A judge or magistrate has been seized of one case. However, the defendants have raised ten pleas that need to be decided by 3 preliminary judgments and 4 decrees. In reality, apart from the final judgment, the member of the judiciary involved has had to deliver 8 different decisions in one case. But the statistical workload is counted as 1 case!

Again, not all cases are of equal weight in so far as judicial time allocation is concerned. There are cases that are very straight forward and can be decided in one sitting (di facile spedizione), then there are others that require loads of witnesses, forests of paper exhibits, engagement of multiple experts, etc.

It is only when a proper and correct statistical exercise of the case workload is determined and a proper human resource management exercise is concluded to establish all the actual workload that one can discuss the number of vacancies to be filled. Indeed, due to the simplicity and complexity of cases, a member of the judiciary who is assigned 1,000 summary cases a year might be under-burdened whilst another member who is assigned 50 extremely complex cases a year might be over-burdened. Hence, it is not simply a matter of numbers, of statistics, for no one case is the same, but regard has to be had to the quality of the case. Justice must be done not only with us citizens but even with those persons who are called upon to administer justice.

Finally, and more importantly, it is important when the judiciary are given their due through a proper identification of their workload taking on board all human resource management issues (training, leave, burn-out, etc.) and all identified vacancies are filled, that a self-regulatory supervisory authority is established to carry out the above exercises on a regular basis and to supervise the workings of each and every member of the judiciary.

This authority – that could well be a supervisory committee of the Commission for the Administration of Justice – will ensure that all members of the judiciary deliver and it should be tasked to assist them when they cannot fulfil their tasks because of stress, burn-outs, leave, etc. This authority is not intended to be a disciplinary authority but a managerial one that ensures that all members of the judiciary are giving their due and, more importantly, where members of the judiciary cannot cope, it steps in to assist them to ensure a speedy determination of cases. This authority should also be responsible for allocating judicial workload in terms of transparent and public criteria.

Even the judiciary should be accountable to society. However, because of their independence, they should be accountable to a self-regulatory authority presided by the Chief Justice and composed of two senior judges and two senior magistrates with no non-judicial external membership.

By themselves, giving out judicial salary increases and augmenting the number of members of the judiciary, laudable as they might be, is not a solution to judicial delays but simply a repetition of past unsuccessful practices and ill-visioned mistakes that do not meet the just expectations of the citizens and the requirements of an efficient, effective, and speedy judicial system.