Court upholds PM's appeal over appointment

The Court of Appeal yesterday upheld an appeal filed by Prime Minister Eddie Fenech Adami and overturned a judgment of the Civil Court in the case filed against him by surgeon Victor Sultana.

Dr Sultana had claimed he was the only applicant who satisfied requirements for the post of consultant surgeon with an interest in vascular surgery in the Health Department after an application was issued in 1999.

This notwithstanding, another person, who did not have the necessary qualifications in terms of the call for applications, had been appointed to the post.

Dr Sultana had requested the Civil Court to declare that the prime minister had acted in violation of the provisions of the Constitution in the appointment of a consultant surgeon with interest in vascular surgery, for he had not observed the terms and conditions of the call for applications.

He also requested the court to declare that the appointment to this post was null and void.

The prime minister pleaded that Dr Sultana's action was contrary to the provisions of another article of the Constitution, for it was aimed at reviewing an interpretation of the call for applications which had been made by the Public Service Commission, when the PSC's actions in these matters were not subject to review.

The Civil Court had dismissed this plea and had ordered that the case continue to be heard on its merits.

The prime minister appealed to the Court of Appeal composed of Chief Justice Vincent DeGaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A Filletti.

The court yesterday noted that the prime minister's appeal was primarily based on two issues: that the Civil Court had reached a wrong decision for it had completely ignored the provisions of article 86(1) of the Constitution, and that this provision had to be read in conjunction with article 110(1) of the same law.

The appellate court noted that the prime minister had submitted that the first court had recognised the clear limitations imposed upon the review of the functions of the PSC and the limitations on the review on whether the prime minister had acted in accordance with the recommendations made to him by the PSC.

However, the Civil Court had wrongly retained that in such a case the prime minister was not obliged to act on the recommendations of the PSC.

The Court of Appeal yesterday declared that there was no doubt that the prime minister's actions in many fields were subject to the review of the courts.

However, in terms of article 86 of the Constitution, such review was expressly excluded in cases involving the PSC unless there was an alleged breach of the fundamental human rights.

Neither was the first court correct when it ruled that the prime minister was not bound to act in accordance with the recommendations of the PSC.

The only correct interpretation that had to be given in this case was that the prime minister was bound to observe the recommendations of the PSC about appointments within the public service, but that he could also request a reconsideration.

The court therefore concluded that the prime minister had acted in accordance with law when he had acted on the recommendations of the PSC as to who should be appointed to the post.