Greening Malta’s judiciary can support the island’s journey to net-zero

Picture these:

Scenario 1

A man who obtains plan information to construct a distillery wins the land dispute against another who intended to hone his hobby in green landscaping on the justification that the production and sale of alcohol will contribute to the country’s GDP.  

Scenario 2

Firm A and Firm B closed two different cases on the same day for lack of evidence. Twenty years later, new evidence surfaces signalling the reopening of said cases. (Firm A still prefers working with physical papers and amassing trash as does the court handling the case. When it’s time to dispose of the used papers, they burn them. Firm B on the other hand has since innovated by investing in smart technologies both for filing cases and disposing of trash.) It takes Firm A months to get a verdict, between having to rummage through a truckload of documented files and starting off on the trial, while Firm B delivers in no time.

In the first instance, the responsibility of the court towards a sustainable future did not come into focus. But today in the pursuit of a decarbonised environment, even the court must offer at least some of the building blocks for the law’s response to sustainability. Hence the man with the distillery ought to be answering questions like; ‘what environmental impact will your company’s operations have and what measures will you put in place to ensure that the organisation leaves a healthy environment for the future generation?’

The second instance is proof that the global threshold for technology deployment will continue to increase and no sector or industry is left out in the duty to planet earth. 

Here, Dr. Deborah Vella, Director of E&S Group and a lawyer with over nine years of experience explains the alternative ways that the judiciary can adopt to help smoothen and quicken Malta’s transition to more convenient, more sustainable, and smarter ways to perform operations. She comments also on the inevitability of climate change litigation and the role of environmental law in Malta’s green vision. 

First, an x-ray of the Maltese judicial system

The Maltese judicial system is a two-tier system consisting of courts of first instance, presided over by a judge or magistrate, and the courts of second instance, the court of appeal. There are also various specialised tribunals that deal with specific areas of the law. There is a right of appeal to the Court of Appeal against decisions of tribunals and awards of arbitrators.

The Environment and Planning Review Tribunal (EPRT) is the tribunal which decides upon appeals against decisions of the Planning Authority and the Environment and Resources Authority. Decisions of the EPRT are subject to appeal before the Court of Appeal on points of law or any matter relating to an alleged breach of the right of fair hearing before the tribunal.

Secondly, an insight into the pursuit of sustainability in the justice system

Ensuring sustainable access to the aforementioned courts could have great potential in supporting the country’s journey to going green. Such sustainability in the justice sector can be pursued by:

·   Striving for further digitalization in Malta’s judicial system, and

·   Guaranteeing easy access to the relevant courts or tribunals where an environmental issue has arisen.

e-Justice: The Digitalization of the Justice Sector

The judicial system in Malta is until now heavily long-winded and paper-based, leading to reduced time-efficiency, unnecessary financial costs and negative environmental impact. In the recent years, the court administration in Malta had made several attempts to modernise its services with a view to enhance the efficiency of the justice system through several ICT initiatives by shifting from a paper-based system to an electronic one. However, these attempts have been sporadic and not based on a pre-established, concrete and evidence-based strategy. In addition, the so far undertaken ICT initiatives with a view to digitalization of the justice system were not based on synergies among the different entities/offices/stakeholders working within the field of justice, so as to ensure better coordination and efficiency.

In this context, the Maltese authorities sought support from the European Commission to develop a digital justice strategy that would allow the coordination of past and future IT initiatives in line with European good practices based on synergies among the co-competent entities/stakeholders. The Digital Justice Strategy 2022-2027 recently issued aims to implement a number of secure digital solutions and tools to support justice sector users through collaboration and integration, increased accessibility to justice, and strengthened efficiency.

The main strategic goals of the action plan are:

·   The gradual redesign of the business processes in the justice sector to make them digital by default;

·   Ensure access to justice and legal information to legal professionals and all citizens, including the ones with poor IT literacy;

·   The introduction of analytic capabilities in the Justice sector;

·   Building and improving the digital skills and competences of judges, supporting staff and external professionals within the Justice sector.

Digital by Default

There are a number of measures that can be taken in support of Digital by Default:

·   Electronically signed documents

·   Going paperless over time.

·   Process Mapping enabling the identification of system inefficiencies and facilitating the simplification of the processes brought about by digitalization.

·   End-to-end case management systems providing an overview of all pending tasks and cases.

Access to Justice

In concrete terms, the Strategy shall operationalize Access to Justice, by undertaking the following measures:

·   Setting up of Gustizzja (e-Justice) portal

·   Community outreach through

·   Addressing the vulnerable populations through special mechanisms

·   24/7 access to case files

Analytical Capabilities

Measures addressed at improving Analytical Capabilities include:

·   Generating reliable performance metrics on the efficiency and outcomes of institutional performance and identifying trends that can be employed for evidence-based policy making.

·   Data warehousing system containing pseudonymized data for the whole justice sector as well as a business intelligence system able to produce customised queries and reports.

·   AI assistive technology aimed at analysing previous judgements with a view to generating a more homogenous and predictable approach to decision-making.

Building Digital Skills and Competencies

Measures that the Strategy shall employ in order to Enhance Digital Skills and Competencies include:

·   Information campaigns

·   Specialised training

·   Train-the trainer programmes

·   Auditing of digital skills and competencies

Essentially, the Digital Justice Strategy seeks to provide various benefits, from improving worker efficiency by allowing particular documents to be accessed from remote locations and available 24 hours a day to completing searches in seconds, while ensuring that documents may be accessed by numerous users at the same time. Public access to information would be increased and digitised solutions would allow courts to minimise paper usage and preserve resources, thus making the judicial system in general more sustainable, time-efficient, secure and transparent.

Access to Efficient Environmental Justice

Access to justice in environmental matters is a fundamental human right, which means that citizens must be able to go to court if public authorities fail to respect the rights and fulfil the requirements created by EU environmental laws. When these rights and requirements are not applied consistently across the EU, it can hinder progress in achieving the EU’s environmental objectives and prevent citizens from enjoying the full benefits of EU environmental laws.

In Malta, access to environmental justice is provided mainly through the Environment and Planning Review Tribunal (EPRT), which was first established in 2010. The Tribunal is regulated through the Environment and Planning Review Tribunal Act (Cap 551).

With regard to decisions taken by ERA, article 47 of Cap 551 and article 63 of the Environment Protection Act (Cap 549), provide for the right for an aggrieved person to challenge such decisions before the EPRT. Physical and legal persons, including NGOs, having sufficient interest may challenge environmental administrative decisions. The concept of ‘sufficient interest’ has been interpreted widely by the Tribunal and the courts, and essentially NGOs or parties who aim to safeguard the environment are assumed to have sufficient interest.

With regard to the possibility of filing actions for judicial review of administrative decisions before the courts, although notionally the requirement of possessing juridical interest still exists, this is no longer interpreted restrictively by the courts insofar as eNGOs are concerned. Recent jurisprudence has seen eNGOs being assumed to have the necessary juridical interest and locus standi. Individuals must show legal interest, which, as defined in jurisprudence, is made up of the following three concurrent characteristics:

·   Legitimate or juridical,

·   Personal or direct and

·   Actual.

The requirement that interest must be legitimate or juridical means that it must be in conformity with the law. The second requisite requires that there must be a determinate and actionable link between the parties to the action and the third requisite implies that the interest must exist at the time of the filing of the action, and it cannot be hypothetical.

Notably, for appeals lodged by a person other than the applicant, such a person need not prove that he has an interest in that appeal in terms of the doctrine of juridical interest, but he is required to submit reasoned grounds based on environmental considerations to justify his appeal.

Everyone can enjoy the benefits which arise out of preserving a safe and eco-friendly environment around us. Safeguarding environmental justice ultimately ensures social justice is achieved by providing citizens with the opportunity to protect the natural environment and, in turn, our wellbeing. At this point in time, environmental protection in Malta is largely dependent on planning, and so sustainable development efforts starting from the judiciary would be of great significance. Having efficient green courts could eliminate issues of forum-shopping, relieve prosecutions from making incorrect decisions, while also benefiting from the added advantages that one would ensure consistency and effectiveness in the treatment of cases before the judiciary.

By taking advantage of the digital opportunities which the pandemic brought about, the Maltese judicial system is already on its way to introduce its own sustainable way of doing work, hopefully encouraging further digitalization in the economic sector too. In addition, while offering the public the opportunities to bring forward claims with regard to environmental protection, the relevant courts and tribunals have the potential to become major campaigners of sustainability in the country, paving the way for a greener, healthier environment.

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