Tag: court

Opinion: A Commercial Court for Malta ?

Update (2025): Since this article was first published, a Commercial Court has been established in Malta under the Code of Organisation and Civil Procedure. This opinion piece is retained for archival purposes, reflecting earlier commentary on the topic.

Earlier in 2017, the Ministry for Justice, Culture and Local Government held a public consultation, titled “Setting up of the Civil Court, First Hall, Commercial Section“.  The consultation was then concluded in July 2017.

Wide Range of Questions

Consultation questions included whether there should be a commercial section within the civil arm of the Maltese courts. The consultation also asked whether the remit should be limited to the Companies Act or wider.

Feedback Received

The feedback received applauded the initiative of introducing this section. In the past the Maltese courts included a Commercial Court section. The commercial court was eventually discontinued.

However, in the current litigation climate, both the Government and those participating in the consultation felt that the introduction of this section would increase in the efficiency of justice being delivered.  Naturally, it was considered imperative that the necessary human and other resources are provided.

During the consultation, the feedback mentioned that matters falling under the Commercial Code should also be included within the scope of this section’s jurisdiction. Others suggested that other laws such as the Trusts and Trustees Act and other codes that deal with matters of a commercial nature (e.g.  banks) should also fall under this court’s jurisdiction.

Existing Procedures and the New Court

The court’s general area of competence and procedure are still unclear.  Most procedural matters are generally regulated by the Code of Organisation and Civil Procedure. A new court would need to have its own rules of procedure, or somehow be regulated by this Code.  The Code regulates the procedure of all the civil courts in Malta.

The use of alternative dispute resolution mechanisms, including pre-trial conferences and/or arbitration or mediation were also considered an efficient means to resolve disputes.  They can provide direction in cases that are deemed to be high-risk or that are of a delicate nature.

The consultation respondents further referred to the implementation of online filing and payment of fees.  At the time of writing, only physical payment and filing of court cases is possible.   This renders the process inconvenient and unwieldy for most professionals and increases crowding in court.

Respondents additionally suggested other legislative amendments to be made alongside the setup of this new commercial court.  These amendments would ensure that the new Bill respects the current legal framework.

In late 2017, the Government published its response to the consultation. In the response, the Government stated that, subject to Parliamentary approval, it plans to enact the new legislation in early 2018. The plan is for the new Commercial Section  to commence operation in the second quarter of 2018.

Thoughts on sanctions in the legal system

While reading the news on various media sites today, I have come across a number of irate comments by the general public, over fines which are either excessively high or excessively low. So yesterday, the news hit the media with a man who was fined 20 Euros for masturbating in public, decidedly a lewd act under Maltese criminal law, with minimum and maximum fines between 6.99 and 58 Euro. The fact that the amounts appear laughable is not the fault of the courts, but the fact that the fines have not been amended to reflect the current cost of living. I imagine that when they were originally drafted, they were quite high, to indicate the outrage that they would cause.

On the contrary, two people swimming in the nude in one of our bays were fined 100 Eur each – a far greater amount for a far less serious offence. Indeed, to my mind, the fact that a person swims in the nude (and often cannot be seen by anyone when under water anyway) cannot be offensive because this is how God made us – it would not bother me if they left me alone. I would, however, be very offended and uncomfortable (even at my age, no longer being a teenager) if a man (or even a woman, really) were to be masturbating in the open anywhere around me. I find it oppressive and harrassing, and yet fined at levels less than what probably was considered by the carefree nude bathers a natural pleasure without bothering anybody.

However, the trouble with this whole matter is the fact that no authority has sat with the Code of Police Laws, the Criminal Code and other legislation to evaluate the punitive measures, especially the pecuniary ones (though not only). In many cases, the value of the punishment (money and / or time) no longer reflects society’s morals. Possibly, in some cases, the fines or penalties should be increased – either in terms of monetary value or because their seriousness is now no longer overlooked. The same should happen (or rather, the reverse) for acts which are no longer considered to strike at the core of society’s values.

The core of this whole set of arguments is the legal maxim which we learnt at law school, indeed in our first year: that justice must not only be done, but must be manifestly done. While in many cases, comments seen on the public media are plain idiotic, the message behind them seems to be that there is far too much leniency (e.g. giving two suspended sentences, when the law only contemplates a first one, which should be followed by consecutive serving of these sentences if followed by another period). On the other hand, growing prison populations are a worldwide problem so that the courts are faced with the dilemma of how to sentence, in the knowledge that they ought to reserve such punishments for the harsher, or harshest of crimes. Indeed, prison grounds are known to have hardened or created criminals and it is in this perspective that the lesser sentences are meted out.

All in all, a balance still needs to be created, between appropriate financial penalties which would not cause derisory laughter, and between creating a rational balance between the action and the sanction. It is not an easy balance to achieve; it must start at the level of the legislator and be continued in court, with the prosecution (and defence) properly carrying out their roles in between in the interests of the delivery of justice to the people.

 

[The opinions of the author expressed in this article are her own personal views and are in no way endorsed by any authority or entity. They are served as an expression of academic and social thought only, and are not sought to garner any political argument. Political comments, particularly partisan politics, and irrelevant or inane comments will be reported as spam and deleted.]