A constitutional application filed by a doctor against the Public Service Commission and the prime minister was yesterday dismissed by Mr Justice Lino Farrugia Sacco in the Civil Court.

The judge ruled that the European convention on human rights could only be invoked in the settlement of a civil right or obligation.

He heard Dr Martin Balzan claim a violation of his fundamental human right to a fair hearing after the post of consultant physician in general medicine in the Health Division was given to someone else.

Dr Balzan said a call for applications had been made in the Government Gazette on August 20, 1999.

The call had specified that the successful applicant had to have recognised qualifications in medicine consisting in MRCP or equivalent qualifications recognised by the European Union and four years' experience in the speciality.

Dr Balzan declared that only he and Dr Brendan Caruana Montaldo had applied for the post and the latter doctor did not have the requisite qualifications as specified in the call for applications.

This notwithstanding, Dr Caruana Montaldo had been recommended for the post by the Public Service Commission.

Dr Balzan declared that he had then petitioned the prime minister in accordance with the provisions of Estacode and the prime minister had referred the matter back to the PSC which in turn referred the issue to the selection board composed of the same persons who had made the original recommendation in favour of Dr Caruana Montaldo.

The PSC reaffirmed its original position, as would be expected, Dr Balzan said, and he was informed by the permanent secretary at the prime minister's office that the appointment of Dr Caruana Montaldo to the post of consultant physician was to go ahead.

All this was in violation of his fundamental human right to a fair hearing and he requested the court to provide him with a remedy.

The prime minister and the PSC pleaded that the provisions of both the constitution and the European convention on human rights were inapplicable to the case, as the selection procedures of candidates for posts were not judicial proceedings.

The provisions of law guaranteeing the right to a fair hearing were only applicable in cases where there was a contestation, and no contestation existed in this case.

In its judgment the court noted that the wording of the constitution was clearly not referring to the Public Service Commission or to the prime minister in connection with the awarding of appointments in the public service.

The right to a fair hearing as protected by the constitution therefore related to contestations in either civil or criminal cases.

This was clearly not applicable to the PSC when the latter body was making recommendations for such appointments.

The PSC, said the court, made its recommendations but did not have the final decision on appointments.

Neither did the prime minister have a judicial function of deciding upon or interpreting the law.

When referring to the European convention on human rights, the court noted that in order for this law to be applicable there had to be a question of a determination of a right or obligation.

There had therefore to be a settlement of a dispute concerning a right or obligation.

After examining the facts of this case, the court concluded that it could not uphold Dr Balzan's constitutional application.

Mr Justice Farrugia Sacco said the court was obliged to offer the greatest possible protection to the citizen in fundamental human rights issues, but it could not examine the case outside the parameters of the original application filed before it.

The court therefore dismissed Dr Balzan's application but held that any rights pertaining to Dr Balzan to seek other remedies were to be unprejudiced by this decision.

The judge also praised the efforts made by the lawyers in this case.

Dr Stefan Frendo was counsel to Dr Balzan while senior counsel to the republic Dr Lawrence Quintano was counsel to respondents.

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