No law can regulate in every detail the countless complexities of human activities. The legislator will lay down norms, even detailed ones, but cannot always predict all the variables encountered when applying those norms to individual instances.
Here the benign monster of ‘discretion’ rears its head. The law will delegate a minister, an authority or an official to decide, at his or her discretion, which of various options available to choose; a corrupting power, which can launch the person vested with it towards delusions of almightiness.
Different countries have tackled the problem of controlling the abuse of administrative discretion in different ways. Malta has followed the British system, based on common sense, fair play, a sensitivity to equity, and effective checks and balances between the various powers of the State. Bottom line: in the UK ‘unfettered discretion’ rarely means what it appears to mean.
Up to 1980, no written law regulated how far the courts were empowered to control the exercise of the discretionary powers conferred on government authorities. In the British system, this overview by the courts is called ‘judicial review’. The Maltese courts, as they usually did when they encountered unregulated areas in the local system, relied on the principles underlying British public law. And this, in general, served the island well. The Malta Constitution relies on the rule of law, and applying British principles of judicial review ensured that there were safeguards in place to guarantee “that a government of laws would not become a government of men”.
The big test came in 1980. When laws grant a discretion to ministers, does it mean that they can act capriciously and arbitrarily, because theirs is the final word? Can any other authority review whether they exercised their discretion properly?
It was a time when the government was determined to shut down all hospitals that were not State controlled. Government action closed down St Catherine’s Hospital run by the Dominican nuns in Attard. The final target was the Blue Sisters hospital, run by a charitable order of Irish nuns who in 1910 had been invited to Malta to provide medical services to the afflicted, at affordable costs, and had made this their selfless mission.
When their hospital licence came up for renewal, the government pounced on a provision in the law that authorised the minister for health “to impose any condition he may deem expedient” in renewing a hospital licence. The minister fancied that provision gave him a blank cheque to impose any condition that struck his fancy. He thought he could add a weirdly thieving provision: the hospital licence is renewed, but only on condition that not less than 50 per cent of the beds be made available free of charge to the government. This did not mean 50 per cent – it meant anything up to 100 per cent.
The law says the minister may impose ANY condition, no? So, the nuns provide the hospital, pay the doctors, the paramedics, the cleaners, the administrators, the medical supplies, the meals, water and electricity and the other hundred incidentals, while the government, and the patients it places there, make use of the hospital for free. Brilliant! The nuns already ran the hospital as a charity, on a barely break-even basis. The new condition only meant instant financial ruin and bankruptcy for the good sisters. The minister patted himself on the back. Now wasn’t he such a smart Alec?
The despoiled nuns sued against this punitive condition, invoking the well-established doctrines of judicial review. The government insisted that the law authorised it to impose ANY condition when renewing the hospital licence, and that no court had the power to interfere or to curtail what ‘any’ means. The issue came up for hearing before Mr Justice Joseph Herrera. It was to turn into a major test case for official despotism and for judicial viability.
Mr Justice Herrera applied the established, well tested, British maxims. When a law grants a minister discretionary powers, it does that not for the minister to use them oppressively or capriciously. He has to employ them reasonably and fairly, to promote the objects and reasons of the law which granted them. The medical and health ordinance was enacted to ensure health standards, the wellbeing of patients, hygiene, amenities in hospitals, and the minister could issue any regulations or attach any conditions to licences that reasonably promoted the objects and reasons of the law – health, hygiene, comfort, working conditions of staff, presence of doctors, treatments, amenities. But not attain other extraneous aims.
This judgment turned into a beaming beacon of fire in the scary darkness of Malta’s judicial firmament
The minister, ruled the judge, was not authorised to abuse the conditions of a licence to promote anything alien to the ends of the law, like stealing private property. The law did not authorise the minister to impose conditions which in fact amounted to glaring expropriation without compensation. This judgment turned into a beaming beacon of fire in the scary darkness of Malta’s judicial firmament.
It also, quite unsurprisingly, fortified the government’s determination. The Cabinet marched a squad of armed policemen to the hospital, arrested all the nuns like the malevolent delinquents they undoubtedly were, bundled them in police vans and forced them on the first night flight to the UK, carrying only the clothes they were wearing. The hospital, lovingly nurtured since 1910, slammed shut in a few days. Their crimes? Devotedly treating the sick, having an Irish passport and believing in the rule of law. Unpardonable!
Horrified by the fact that someone in the generally comatose judiciary had, finally, refused to rubber stamp another act of piracy and tyranny, the government rushed a law through Parliament which virtually abolished judicial review of administrative discretion. The courts could henceforth only scrutinise what was “clearly and explicitly prohibited by a written law”. By direct order of Parliament, the law henceforth restrained the courts from any overview of the exercise of discretionary power by the government authorities. The government flung more handfuls of tyranny at the applauding crowds. Truly, that enactment programmed the rule of law to become the rule of men.
This was a lethal blow to public accountability and the separation of powers as willed by the Constitution. It threw back the legal system to exactly where it had nestled in the arms of their Serene Highnesses the Grand Masters. Even the 1802 Declaration of Rights of the Maltese was infinitely more enlightened and advanced than the new law. Our ‘backward’ forefathers had already made sovereignty conditional to the rule of law: “Power resides only in the law and restraint can only be exercised in accordance to law.” The new norm inverted all that: from then onwards it would be illegal for the courts to check administrative illegality. No, that is not a typo. It institutionalised the supremacy of discretionary powers over the supremacy of law. What Hamlet called “the insolence of office” had now become the law.
The good news is that the new enactment was so inherently repugnant that no judge seems ever to have applied it – at least, I am not aware of a single instance when the courts felt mean enough to soil their hands in this stream of foul effluent. Every judge required to apply that distasteful law found his personal way of getting around it. Bully for them.
Perhaps the leading example was Judge Maurice Caruana Curran, who, as a parting shot in a long and tormented career, delivered another landmark judgment in Ellul Sullivan on the eve of his retirement. The registration of a merchant ship had been cancelled without any reason being given by the minister, and the none-too-happy owners took their grievance to court. The government bawled at them and at the court that no law required it to give reasons for revoking a registration and that no judge was entitled to enquire whether the minister exercised or abused his discretion. Wrong on both counts, retorted Judge Caruana Curran – the fact that the shipping law gave the shipowners the right to make representations on de-registration necessarily meant that the minister had to give reasons, which were subject to be challenged in court.
Parliament deactivated this outrageous law in 1995. It reintroduced legally enforceable guidelines for the exercise of discretionary administrative powers: they were to be used reasonably, not for improper purposes or for irrelevant considerations, and the courts, not the minister, were to be the final arbiters as to whether ministers or other government authorities have abused their powers – unreasonably, improperly or irrelevantly – to the ends of the law which conferred them. Finally, back to some vestiges of sanity and to less mockery of the Constitution.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.