A fatal blow

There is a particular amendment being proposed by the government which to my mind will signify the end of judicial review of the administration. This amendment is being proposed in a very subtle fashion in the Bill aiming at introducing the so-called special administrative tribunal, that is Bill number 82.

In the third column of the third schedule to the Bill we see that article 468A of chapter 12 of the Laws of Malta is being abrogated. This is dumb-founding, to say the least. Amazingly this proposed amendment has gone unnoticed by the media at large.

Section 468A of the Code of Organisation and Civil Procedure is the only article of law we find that empowers our judiciary to scrutinise administrative abuses. If the government does not have a change of mind on this particular amendment this will mean that the citizens of Malta will no longer have the right to seek judicial redress against the government.

A judicial reform more worrying and far reaching than this is hard to envisage. Strangely, however, notwithstanding the severe implications of what is being proposed, not even the Chamber of Advocates or any third party has voiced a word of protest and it has only been the Labour Party in opposition that has voiced its preoccupation.

It must be stressed that the right of judicial review of administrative acts was the result of important jurisprudence that evolved over a period of time extended over a century. In the 19th century judges where originally hesitant in affirming their right and obligation to overrule the government of the day, even in the light of blatant abuse.

Towards the end of the 19th century, however, judges proved to be more audacious and for the first time ever started to recognise the rights of citizens to sue the government.

They had originally listed two types of government decisions. The first type was what the judges used to refer to as those decisions that fell under the juridical notion of iure imperium and those falling under the heading of iure jestionis.

With regard to the first, citizens could not sue the government. Certain acts of state fell outside the ambit of judicial review.

In the second case, that is when the government basically acted with regard to commercial or contractual matters, the courts held that they could intervene.

Over the years, however, the judiciary thankfully became even bolder and removed this archaic distinction and gave the right to one and all to sue the government on all matters, thereby strengthening a great deal civil liberties.

This process was, however, far from easy and evolved over a long period of time. It must be appreciated that during this period Malta was merely a colony and therefore it was far from easy for the members of the judiciary to stand up against the colonial administration. A case in point was when the Court of Appeal intervened on behalf of certain Maltese citizens when these were faced with the prospect of being deported during World War II. The end result of the decision by the Appeal Court, presided over by Sir Arturo Mercieca, was that the same judges ended up by being themselves deported to Uganda. Today, ironically the names of the judges who presided over that particular case are honoured by a special plaque at the courts of justice. And just as ironic is the fact that the episode is commemorated by the Nationalist administration.

Even after the British left these islands, the going in this regard was far from smooth. Judges for a while seemed far too reluctant to overrule what used to appear to be a far too overbearing government. In fact, during the 1960s, 1970s and early 1980s few and remote where the instances when our judges dared overrule the government. Things, however, gradually began to change.

Our country was fortunate enough to have had members of the judiciary who in difficult times proved to be daring enough and who, not without personal sacrifice, were willing to decide against the state and in favour of the common citizen in one case after another. These judgments are today regarded as landmarks in our judicial history.

Finally, we had a new dawn whereby the government and its ministers or other government agencies could no longer override the vested rights of common citizens with impunity. And then, after all this, the government gave in and introduced article 468A of chapter 12 of the Laws of Malta. This article in substance basically embodied what had evolved throughout the years by judicial precedent. Until today no one questioned the right of the common person to defend his interests even against the state.

Unbelievably, what the government is proposing today by means of a single amendment is to abrogate and dismiss more than a century's worth of jurisprudence and this, if anything else, is the ultimate insult to those members of the judiciary who, perhaps in the most difficult of times and against there own personal interest, had affirmed the position of the judiciary as the ultimate watchdog of citizens' inherent rights. The Minister of Justice, confronted by severe criticism in this regard by the opposition, has promised to review the position. If the minister does not keep his word, then let all hell be let loose.

Dr Herrera is a Labour member of Parliament.