Issue link: https://maltatoday.uberflip.com/i/1529892
10 OPINION maltatoday | WEDNESDAY • 27 NOVEMBER 2024 Specialisation of judges can ensure that they have the requisite knowledge and experience in their field of jurisdiction WHILE announcing plans to re-establish the Commercial Court as an independent enti- ty to address commercial cases more efficiently, Prime Minister Robert Abela declared that the next step towards progress is the specialisation of the judici- ary. 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 funda- mental rights and the quality of justice, as well as the status of judges. Generalist judges are some- times referred to as novices at everything and experts at noth- ing. The constant adoption of new legislation, whether at the inter- national, European or domestic level, and changing case law and doctrine are making legal sci- ence increasingly vast and com- plex. It is difficult for the judge to master all these fields, while at the same time, society and lit- igants demand more and more professionalism and efficiency. Specialisation of judges can ensure that they have the requi- site 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 tak- en by a judge. Specialist judges can acquire greater expertise in their specific fields, which can thereby enhance their courts' authority. Improving efficiency and ex- pertise in corruption cases is one strong reason for estab- lishing judicial anti-corruption specialisation in our corrup- tion-laden country. Concentrating case files in the hands of a select group of spe- cialist judges can be conducive to consistency in judicial de- cisions and consequently can promote legal certainty. At the moment, our court sys- tem may find it impossible to set up specialised courts or an adequate number of special- ised 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 in- dividual specialisation of judg- es, as this might hamper this necessary versatility. We could perhaps emulate some EU member states where some specialist courts or tribu- nals consist of one or more judg- es 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 appro- priate to the specialist court or tribunal concerned. In Austria and Italy, for ex- ample, a stronger specialisation of the judiciary has been intro- duced in the last two decades, resulting in higher-quality deci- sions from which no appeal can or need be taken. Professional judges may be- come specialist judges by sev- eral means. It may be using experience gained either as a specialist lawyer before appoint- ment as a judge or as a result of experience in specialist work following the appointment as a judge. Alternatively, the spe- cialist judge may have received specific training in a specialist area of the law or a non-legal ar- ea and then been appointed to a specialist court or deal with spe- cialist 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 lev- el. This flexibility is necessary to ensure that appellate courts fulfil their legal mission to guar- antee consistency in the inter- pretation and application of legislation and of case law. Al- so, 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 posi- tion 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 spe- cialised courts in the first place can be very difficult, and those behind the changes can face multiple problems and chal- lenges from several quarters. Any kind of reform challeng- ing 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 be- gin 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 be- tween the political need and the internal needs of our judicial system. The specialisation of courts can be carried out in the follow- ing forms: The creation of an independent system of special- ised 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 Let's go for specialised courts Mark Said is a veteran lawyer Mark Said