7.0 . Public Corporation to Administer the Courts
Of course, for the Executive to satisfy its aspirations it must be ready to accord more resources, both economic and human, in the justice sector, even if at present these are ill defined. It is sufficient enough to note the lack of experienced staff, and the fact that skilled workers leave to go elsewhere or be laid off because their service term has expired. The Commission feels that it is time for the Courts to become a closed department if one hopes for a better management and an increase in efficiency.
The Courts of Justice Department should no longer form part of the public service, but it should be separated on its own in the same way the Clerk of the House and his/her staff, under the leadership of the Speaker will be developed in a parliamentary service which will be fully autonomous from the government. The same applies to Courts of Justice Department which should be given autonomy as much as possible from the Executive, even in relation to the administrative management of this Department, always with full respect to the laws of the country. It is clear that the public service, the civil service, most certainly over the last forty years, was not delivering with due diligence the administrative needs of the Courts in relation to an adequate number and trained employees to work in the Courts and therefore other solutions should be found.
RECOMMENDATION FIFTEEN:
MEASURE 165: Setting up of a Judicial Service: A judicial service should be established by law and should be autonomous from the government. This judicial service should be headed by a public corporation that will be an administrative authority for Courts that will have the function to manage and administer the Court. The management board of the public corporation shall be appointed by the President of Malta after a wide consultation with all stakeholders concerned. The members of the Board are to be selected from amongst persons trained in management, law and public administration. An ex-Judge shall preside this Board.
MEASURE 166: Judicial Service detached from the public service: The judiciary service should not remain part of the public service.
MEASURE 167: Functions of the Judicial Service: The recruitment, promotions, discipline and dismissal of new employees is to be made directly from the judicial service.
MEASURE 168: Training of Courts Employees: Training of Courts employees on updates on procedure laws shall be given from time to time by the Faculty of Law of the University of Malta.
MEASURE 169: Standard provisions that apply to public corporations: the following measures should also apply in the same way it happens when a public corporation is set up namely: -
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(i) All employees will be detailed with the Public Corporation for a period of one year, and then they can either continue to be detailed with the Corporation, or otherwise transferred to a Government department or agency if they do not want to continue working with the Public Corporation, or choose to apply to calls for application that the Public Corporation issues from time to time to be directly employed by the Public Corporation instead of remaining employed with the civil service and simply detailed with the Corporation ;
(ii) before setting up the Public Corporation a Manpower Plan should be made to prepare the duties of the employees of that Corporation including establishing salaries which will take into consideration the duties to be performed by the employees of the Public Corporation;
(iii) during the time the officers will be detailed to the Public Corporation they should continue to be deemed as public officers and therefore governed by all conditions of employment of the public officials, including any collective agreement that may come into force from time to time and during the period of their detailing with the Public Corporation they may apply for any call for application issued by the public service which they may be eligible for.
(iv) if a public officer resigns from the public service and joins with Public Corporation, he will still continue to enjoy every right he may have in relation to the public service pension;
(v) the Corporation will engage its own staff under those conditions that the Administrative Board determines, in accordance with every collective agreement that comes into force from time to time, according to every law that may be applicable and the directions given from time to time by the Chief Executive of the management of a Public Corporation;
(vi) the Public Corporation should commission a study, before initiating the recruitment process to determine what ranks its employees will have. After completion of this study and consultations with stakeholders (employees‟ unions, Management and Personnel Office in the Office of the Prime Minister, etc.), the Corporation shall approve the grades concerned and proceed to fill the posts according to the law governing public corporations employment;
(vii) in the case of employees of the Department of Courts who choose not to join with the Public Corporation and have departmental grades (not general service grades),
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whether those departmental grades that have been created by the Department of Courts or have other departmental grades since they had been working with a government entity and were redeployed in the Department of Courts (for example, from a Government Department which was called the Post Office or Shipyard Public Corporation), they shall be assimilated into the public service in the public service scale that is closest to their salary after negotiations between the Government and the unions and, if necessary by taking into consideration other relevant factors such as the number of years they have been working in the Department of Courts and the responsibilities within the Department;
(viii) whoever is currently on a contract of employment with the Department of Courts such contract shall continue until it is terminated in accordance with the terms of that contract, but if such employee chooses to be released from that contract prematurely to join the Public Corporation, the Government should allow this to be done without any disruption and with no need for the employee having to pay a penalty for terminating the contract before its expiry date;
(ix) the management structure that is to be set up is that of a public corporation and not a Government agency. This is because the Commission is proposing an autonomous authority from Government. A Government Agency set up according to the Public Administration Act is not autonomous from the Government and, the same as a Government department it depends entirely on the Government and the Minister to whom it belongs;
(x) the discipline and progression mechanism must be negotiated between unions and management of the Public Corporation in a collective agreement;
(xi) the law itself, same as what happens when a new public corporation is set up continues to recognise the pensions of those workers who joined the Public Service prior 1979 and shall continue to remain entitled to the Treasury grant and any benefit that they may be entitled to;
(xii) with regards to salaries, performance bonuses and allowances, these are to be agreed between the Board of the Public Corporation and the union (or unions) representing the workers same as what happens today in the public service when a collective agreement is negotiated and approved once again.
106 8.0 . The Legal Aid Benefit
The Commission had the opportunity to study two reports and a written bill on legal aid. These are: -
• Permanent Law Reform Commission, „law Relating to Legal Aid‟, Report Number 1 of December 1991 (see Appendix III attached to this Report, for its full text);
• Judge Emeritus Joseph David Camilleri, „Towards a Reform in the Office of the Legal Aid Lawyer‟, 20 May 2013 (see Appendix IV attached to this Report, for its full text), and
• Bill called „Legal Aid Lawyer Act‟ prepared by Dr. Mark Said (see Appendix V attached to this Report, for its full text).
From these two reports and this bill, as well as other submissions the Commission received, it is clear that the legal aid institute needs to be reviewed with the aim to:
• changes are needed to this institute of procedural law to be updated for today's times;
• removal of archaic procedures;
• more expeditious process when providing the due legal aid benefit;
• more accountability in the provision of this benefit;
• there should be an appeal procedure when this benefit is denied;
• the benefit is to be extended to other services which nowadays are not being provided by the Legal Aid Lawyer such as advice, when a person is arrested and is being interrogated by police and has the need to consult a lawyer, and to be also extended to parte civile in criminal proceedings;
• there will be an organised departmental structure to administer this benefit while maintaining records, including statistics and more details than those available today;
• there will be an Assistant of the Legal Aid Lawyer in Gozo responsible for this service;
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• there shall be two lists of lawyers for legal aid so that an element of specialisation in the provision of legal aid is introduced, and not a single list of lawyers to provide a service to all the different areas of legal aid - civil, administrative, cross-border cases, and criminal;
• there shall be a system for providing legal assistance from lawyers in practice private on a pro bono basis, where lawyers practicing the legal profession privately offer their free services to beneficiaries;
• access to Courts, tribunals and extra-judicial services for people with lack of financial means is not to be obstructed;
• further information about the legal aid benefit through a flyer and the website of the Legal Aid Department and the publication of an annual report on the operations of the said Department;
• the means test is to be administered by one government entity, that is by the Department of Social Security or an entity within the department to set up one
integrated mechanism by which one means test is to be established and associated with each person claiming for the non-contributory benefits. Thus, the Legal Aid Lawyer together with the departments and other entities may use this mechanism as a key source of information on the financial situation of persons requesting some kind of benefit that is linked to the financial means of those persons. In case of abuse of this legal aid benefit, the appropriate measures will be taken by the Directorate for Fraud of Benefit and Investigation within the Social Security Department.