Proposed administrative tribunal runs into strong criticism

Labour MP Josè Herrera insisted yesterday that powers of administrative review should be assigned fully to the ordinary courts rather than the proposed new Administrative Review Tribunal.

Labour MP Joe Brincat said that if the government intended to carry on with the new tribunal, it should at least give it effective powers to enforce its declarations.

Speaking in Parliament during the debate on a Bill aimed at consolidating various boards, tribunals and commissions into the new Administrative Review Tribunal, Dr Brincat argued that the role of the new tribunal should not be simply to issue declarations but should be able to give effective remedies.

He also argued that the law should define how the Tribunal and the Office of the Ombudsman would work together such that there would not be duplication and proceedings by the Ombudsman could be followed up in the tribunal.

Dr Brincat said he had hoped that the Administrative Review Tribunal would be based on the French model. When he was Minister of Justice he had commissioned the late professor (later Mr Justice) Wallace Gulia to draw up an administrative review system.

Turning back to the Bill, Dr Brincat said that tribunals should apply the principles of good administrative behaviour especially where discretionary powers were involved. The European Court had criticised the tribunals of certain countries for not giving sound reasons for their decisions.

For example, the Housing Secretary had enormous discretion but did this mean that he was not accountable in terms of administrative review because he was an individual?

Dr Brincat said there should be clear periods of prescription within which cases could be filed before the tribunal. In cases which involved principles of general applicability, he felt that claims should be entertained for up to five years.

The Labour MP also stressed that tariffs charged by the tribunal should be reasonable and not prohibitive.

Earlier, Labour MP Justyne Caruana said administrative review in Malta was still in its infancy.

She observed that in terms of the Bill, before applying to the new tribunal, one had to exhaust all other avenues. She opined that this was closing doors to those seeking redress.

She referred to the fact that the president of the tribunal would be appointed by the President of Malta on the advice of the Prime Minister. It was usual for such assignments to be made by the Chief Justice, she said.

She was also against the possibility that the president of the tribunal could be transferred from one section to the other, since this could lead to discretionary decisions.

Dr Caruana also pointed out that there were no specific qualifications needed for those who could be appointed as the president's assistants and the choice seemed to be only in the hands of the president. The assistants' role ought to be defined.

Dr Caruana also pointed out that certain clauses seemed to contradict each other and clarifications were in order.

She welcomed the fact that the tribunal could also hear cases in Gozo. Other tribunals did not sit in Gozo and this was causing inconvenience to Gozitans.

Concluding, Dr Caruana hoped the bill was not a government ploy to by-pass the courts.

Josè Herrera (MLP) said this Bill was among the most important of this legislature and although the opposition would vote in favour of it, he had serious concerns which the government needed to address.

This Bill was disappointing and amateurish because it removed tribunals to replace them by others.

A particularly worrying aspect was that while a new fancy named tribunal was being created for administrative review, the ordinary courts would retain their own powers under chapter 12 to review administrative acts. Therefore one would have two parallel jurisdictions. This would create as much confusion as the Tower of Babel.

Such a situation underlined once again the opposition's argument that the powers of administrative review were to be assigned fully to the ordinary courts rather than a tribunal. Indeed, it was shameful that when the courts first started to try to review administrative decisions, Parliament acted to curtail their powers.

Just as worrying was the fact that the new tribunal would be headed by a president who, even though he was a serving or retired judge, would not fall under the Chief Justice and would not enjoy the privileges, powers and protection assigned to the members of the judiciary by the Constitution. The person responsible to review government excesses would thus effectively be under the thumb of the government itself. The government could interfere directly in this aspect of the administration of justice and could shift the president, in the same way as Mr Justice Farrugia Sacco was transferred from the Injustices Tribunal after handing down many judgments which had embarrassed the government.

Indeed, this government whose party in the past used to complain of musical chairs under the Mintoff government had a poor record in the administration of the courts. One only needed to see a recent example where it practically wanted to make it impositive for a magistrate to hold an inquiry on his own initiative.

Chief Justice Vincent de Gaetano had himself recommended the creation of an Administrative Court. What was the government scared of? Was it worried that it would not be able to offer any carrot? Was the minister scared that the reins would slip from his hands?

Intervening, Parliamentary Secretary Carmelo Mifsud Bonnici asked how the government could intervene when the president of the tribunal was a former judge or magistrate.

Dr Hererra said a former judge or former magistrate had no powers or guarantees as enjoyed by a serving member of the judiciary.

The government had been urged by the Commission for the Administration of Justice, the Chief Justice and the Chamber of Advocates, apart from the opposition, not to continue trying to dilute the courts by creating tribunals instead, but this government was proving to be obstinate, Dr Herrera said.