Government may withdraw proposal on review of administrative acts

Justice Minister Tonio Borg said yesterday that the government was prepared to withdraw a clause of the Administrative Justice Bill which would have enabled the new Administrative Review Tribunal to review acts of the public administration. Such cases would continue to be heard by the ordinary courts.

Speaking in Parliament, Dr Borg said the government was open to ideas and it certainly did not want to give the impression that it wanted to control a tribunal where its own actions would be under scrutiny.

Indeed, it was worth pointing out that the presiding officer would enjoy security of tenure and removal would follow the same procedure as that of the judiciary. Furthermore, under the current system, if the government lost a case before the ordinary courts, it could appeal, a facility which would not be possible before the tribunal.

Nonetheless, in the committee stage, if needs be, the government would be prepared to withdraw this clause and such cases would continue to be referred to the ordinary courts.

Turning to other aspects of the Bill and reacting to opposition comments, Dr Borg said the setting up of a tribunal instead of having an ordinary court did not mean undermining the courts. It only meant that the people could have faster and cheaper access to justice and the courts would not be burdened with new cases. After all, the Labour Party too did that in the Condominium Act.

The present government had taken various similar measures of dispute resolution, including the new system for the settlement of uncontested debts which, although initially criticised by the opposition, had since been praised by Dr Herrera.

Dr Borg explained that the situation to date was that there were some 150 administrative tribunals, commissions or boards which took decisions on particular areas with the parties in most cases being able to appeal before the courts solely on points of law. All this was allowed by clause 39(2) of the Constitution for civil cases. A Labour government once even tried to create a tribunal for criminal cases but that was rejected by the Constitutional Court.

What this Bill would do was to streamline the procedures of these 150 administrative tribunals such that the tribunals had to respect the principles of natural justice nemo judex in causa sua and audi et alteram partem. Decisions had to be taken within a reasonable time, facilities should be equal for both parties and, importantly, the disclosure rule was being introduced in that the public administration, which would be the accused, had to make available to the tribunal all documents and information relevant to the case. The procedure had to be adversarial in nature, procedures had to be held in public, and the reasons for the tribunal's decisions had to be explained. This was especially useful if there was going to be an appeal.

In terms of this Bill, the work of these 150 or so tribunals would eventually be consolidated into the Administrative Review Tribunal. This would be a long process and some tribunals, because of their nature, such as the industrial tribunal, had to remain outside this process.

The opposition had argued that the creation of tribunals was distancing dispute resolution from the courts. Yet this Bill would actually bring the tribunals closer to the courts. Whereas the new tribunal would be headed by serving or retired members of the judiciary, some of the current tribunals were not headed by persons with a legal background.

At this stage, Dr Borg said, it made no sense for the new tribunal to be presided by a serving judge or magistrate because the tribunals it would initially absorb were not currently presided by a serving, or even retired, member of the judiciary.

Consolidating the various tribunals into a single tribunal would make for efficient and lower administrative costs, Dr Borg said.

Marie Louise Coleiro Preca (MLP) insisted that the government needed to delete from the Bill a clause to the third schedule which effectively removed the possibility of recourse to the law courts for review of administrative decisions in terms of clause 469(A) of the Code of Organisation and Civil Procedure. This meant doing away with the independence with which such cases were heard before the ordinary courts and the wealth of experience which the courts enjoyed, she said.

The minister had said the government had an open mind on this issue and she hoped it would act promptly because the country could not experience the turbulence which such changes would bring about.

She insisted that politicians should remain distant from the administration of the law courts, including the appointment of judges, and a greater role should be given to the Chief Justice. Even the way the tribunal's presiding officer would be appointed was highly suspect. The presiding officer would be appointed for four years, which implied having a temporary judge, something which was not allowed. Furthermore the government had a carrot in hand on whether to move for re-appointment.

Turning to the other parts of Dr Borg's address, Mrs Coleiro Preca said the minister had stated the obvious. She could not imagine a tribunal not following the principles of natural justice. This should always have been in all the laws governing the tribunals because it was obvious. But did this mean that where this requirement was not in the law, the tribunal could do as it pleased? After all, the principles of natural justice were an element of human rights.

Once the public administration had to make all facts of a case available to the tribunal, would anonymous letters also be displayed? Intervening, Parliamentary Secretary Carm Mifsud Bonnici said they would.

In her speech Mrs Coleiro Preca said she was again insisting on a review of the institute of legal aid because there was no section which was more inefficient.

She also complained over the way the Social Security Department was appealing cases which it lost before the arbiter of the Tribunal of Social Security, saying this was causing hardship to low-income people who then had to seek legal aid, which was inefficient. This inefficiency also caused hardship to those families who themselves wanted to appeal decisions of this tribunal.

Intervening, Dr Mifsud Bonnici said a reform of legal aid was currently part of draft legislation before the House.

Mrs Coleiro Preca said those changes would not be enough.

In her speech she also insisted that the new tribunal needed to be well resourced.

Opposition leader Alfred Sant said such a Bill did not deserve to be moved by a person such as Dr Mifsud Bonnici in view of the current controversy over the cleaning contract for the law courts.

He said that four years ago the judicial system had been rocked when a certain Mario Camilleri allegedly tried to bribe two judges. Now a company closely linked to Mr Camilleri had been awarded the law courts cleaning contract. The security implications were clear and it was not enough for the government to plead it was not responsible and that mistakes had been made. After all, the same thing had happened for the cleaning of Dr Mifsud Bonnici's office.

Indeed, Mr Camilleri had said in court that he had wanted to use the income from the cleaning contracts to pay a fine on another case. How could the government argue it did not shoulder political and administrative responsibility? The very least the government could have done was to order an inquiry into who was responsible. Such lack of accountability and transparency was undermining the country.

In view of all this, how could the opposition take at face value a Bill such as this which involved administrative review?

Institutions were not built solely on the basis of laws but on confidence in the administrators and the people who moved such laws. The real test was transparency and responsibility, and these were inexistent.

Mario de Marco (PN) said it was a Nationalist government which had developed the instruments of administrative review. Among them was clause 469(A) of the Code of Organisation and Civil Procedure (COCP) empowering the courts to review administrative acts, and the creation of the Office of the Ombudsman. This Bill was continuing this process.

It was unfair to raise in this debate issues which were being used as a political football and which had nothing to do with this Bill. He had every confidence that what Dr Mifsud Bonnici had moved was in the best interests of justice.

Dr de Marco observed that there were different systems for review of administrative acts. Countries on mainland Europe had opted for administrative courts whereas the Anglo-Saxon model was for administrative tribunals. Both had their pros and cons. The courts offered the highest standards of justice but that took time and came at a cost. Tribunals were faster, more flexible and less costly and he had no doubt that the Anglo-Saxon model also observed the principles of justice.

Malta principally followed the Anglo-Saxon model in the area of administration and one could see that the situation which had developed in Malta also existed in the UK and Australia, among others. In the UK the Franks Committee had examined the system of administrative tribunals and recommended the creation of a Permanent Council On Tribunals to supervise the organisation and procedures of the tribunals. A similar system, called the Administrative Appeals Tribunal, was also introduced in Australia on the basis of the recommendations of the Commonwealth Administrative Review Committee. Australia had proceeded to consolidate various tribunals into a single body, something which was now being echoed in the Bill before the House. In both cases, the purpose was to make the tribunals more efficient, user friendly, fair, independent and less costly to the people.

In Malta, as had happened in Australia, some had argued that consolidating the tribunals would be doing away with their specialist expertise, but it was worth pointing out that as proposed in the Maltese Bill, the president of the tribunal would be assisted by two experts who would give advice on the case before the tribunal. He hoped such advice would be made public.

Dr de Marco observed that the Bill established the principles upon which all tribunals had to proceed, including natural justice such as fair hearing, full disclosure by the administration and equality of arms. Proceedings had to be held in public and the reasons motivating a decision had to be explained.

In terms of the Bill, the new Administrative Review Tribunal would review administrative acts of the public administration on points of law and points of fact.

The way the points of law would be reviewed was similar to that laid down for the ordinary courts in clause 469 (A) of the COCP.

Dr de Marco said he had noted the remarks by the Minister of Justice earlier in the debate about this issue. His own view was that one should preserve the authority of the courts to review administrative acts, but if there were to be two parallel institutions one had to eliminate the possibility of forum shopping. Anybody who opted for either of the institutions should not then be able to go before the other if he did not agree with the outcome.

As for the revision of acts on points of fact, Dr de Marco said the people would now have an institution which would be able to examine discretionary decisions on the basis of the facts even when the decisions were legal. This would be a useful mechanism and it certainly made more sense for one who, say, disputed the refusal of a licence, to go before a tribunal than before the courts, where procedures could take longer.

Dr de Marco said he disagreed that the chairman of the tribunal could be a serving judge or magistrate. Judges were appointed to serve in the law courts and he doubted that they would also have time to serve on tribunals. However, appointing former members of the judiciary made sense, as one would be making use of the experience they would have accumulated over the years.

Some members of the opposition had spoken about the government dangling carrots before such judges. He hoped the members of the opposition had greater confidence in the judiciary.

As for complaints that there was no guarantee of independence because of a lack of security of tenure, Dr de Marco said the term of the tribunal president would be for four years. If it could not be renewed, one could not argue that decisions would be influenced by a desire for reappointment, although even here, one would have expected greater confidence in the judges.

Turning to the procedures of the new tribunal, Dr de Marco noted that an application had to be served on the public administration within five working days from its date of filing. He hoped that failure to serve the application within five days would not lead to a case being dropped because that would be unfair, more so because it was not up to the claimant to actually serve the application.

He said the government was not re-inventing the wheel in the way it was proposing to consolidate the tribunals into one body.

It was following a pattern adopted in other Anglo-Saxon jurisdictions and he was confident that the principles of justice would be observed.