Negative? Why?

My colleague José Herrera wrote an article entitled A Fatal Blow, in which he referred to Bill 82, presently under consideration by Parliament.

He contends that the Bill proposes to change the present state of affairs in a manner that would lead the administrative tribunal to be set up encroaching on a substantial part of the extant competence of the civil courts. He apparently argues that this threatens to put an end to the judicial review of administrative discretion by ordinary courts.

Actually, my colleague has been very unfair in giving a negative and unbalanced impression of what is an important and a necessary piece of legislation in the making.

Presently there are two methods of review of public administration. The first lies in a great variety of administrative tribunals with quasi-judicial powers scattered all over the laws of an administrative nature and the second is through the use of article 469A (not 468A, as indicated by Dr Herrera) of the Code of Organisation and Civil Procedure.

In order to make things clearer, article 469A lays down that:

"Saving as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:

"Where the administrative act is in violation of the Constitution;

"When the administrative act is ultra vires on any of the following grounds: when such act emanates from a public authority that is not authorised to perform it; or when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or when the administrative act constitutes an abuse of the public authority's power in that it is done for improper purposes or on the basis of irrelevant consideration; or when the administrative act is otherwise contrary to law".

Some definition of terms follows.

This article confers competence and jurisdiction and it grants and limits the powers of the courts in the control of administrative acts. The article is very specific, and can best be explained with reference to the vicissitudes of the courts when a Labour administration was in office, albeit before Dr Herrera's entry into politics, and the powers of the courts were hotly contested by the government side. Fortunately, much water has passed under the bridge since and what was then put in doubt is now universally accepted. Nothing is in dispute anymore either.

We have mirrored the United Kingdom legislator. Throughout the years, several administrative tribunals have been established under special laws because they are deemed to be:

i) cheaper (it costs less to institute proceedings);

ii) equipped with more expert knowledge (the panels have technical people who are well-versed in the subject);

iii) speedier (cases are held to take less time to be decided upon than at a normal law suit);

iv) more flexible (with the ability to adapt rapidly to the developments in the subject-matter) and formal).

However, after 50 years of practice, our law makers chose to create ever newer forms of tribunals with diverse powers. Let us consider certain disadvantages that need elimination or correction. This is necessary if we really deem it fit and proper to strengthen the rule of law within our administrative system.

In my opinion, the shortcomings of the extant system are the following:

a) there is lack of uniformity in the criteria adopted by this wide variety of administrative tribunals in arriving at their decisions.

b) there is a deficiency in the accessibility and the publicity to the decisions taken (whereas under the centralised administration of the ordinary courts all judgements can be found on the internet website www.mjha.gov.mt);

c) there is no uniformity of procedure, with some tribunals following stringent rules as to the time for appointment of a case and its determination or the observance of the audi et alteram rules while in others matters are less regulated;

d) there are too many duplications in structures leading to futile expense and waste of human resources in the administrative back up of the tribunals and

e) not all the decisions taken by administrative tribunals are adequately motivated.

These are the current disadvantages. The government is proposing to change this through two important steps contained in Bill 82. Firstly, the introduction of a set of rules contained in Part II of the Bill, which would establish clear principles of good administrative behaviour as criteria made applicable to all tribunals, thereby enhancing homogeneity. Clause three states the following:

"(2) The principles of good administrative behaviour include the following:

(a) an administrative tribunal shall respect the parties' right to a fair hearing, including the principles of natural justice, namely:

(i) nemo judex in causa sua, and

(ii) audi et alteram partem;

(b) the time within which an administrative tribunal shall take its decision shall be reasonable in the light of the circumstances of each case;

(c) an administrative tribunal shall ensure that there shall be procedural equality between the parties to the proceedings. Each party shall be given an opportunity to present its case, whether in writing or orally or both, without being placed at a disadvantage;

(d) an administrative tribunal shall ensure that the public administration makes available the documents and information relevant to the case and that the other party or parties to the proceedings have access to these documents and information;

(e) proceedings before an administrative tribunal shall be adversarial in nature. All evidence admitted by such a tribunal shall, in principle, be made available to the parties with a view to the adversarial argument;

(f) an administrative tribunal shall be in a position to examine all of the factual and legal issues relevant to the case presented by the parties in terms of the applicable law;

(g) save as otherwise provided by law, the proceedings before an administrative tribunal shall be conducted in public;

(h) reasons shall be given for the judgement".

By means of this clause, all the present tribunals that do not, as yet, possess this level of regulation will be upgraded. This is the first significant step forward, that is, enhancing what we already have.

In my next contribution tomorrow, I will deal with the second step.

Dr Mifsud Bonnici is Parliamentary Secretary for Justice and Home Affairs.