So much has been said about the principle of ‘equality of arms in justice’ that one would be led to believe that, from a procedural aspect, today it makes no difference whether on the other side there is an individual, a commercial entity or even the government. The law applies to all, without difference or favour. In theory, this principle refutes any concept of a privileged litigant.
A look at our laws of procedure reveals a remarkable contradiction to this idealistic principle. Indeed, our Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) is jam-packed with privileges made principally to serve the government in court.
Some of these are rather inconsequential; such as the fact that cases involving the government shall be heard before those involving ‘just’ private parties. Others are more significant than just a simple matter of queuing; most notably, the privilege afforded to the government in article 460 of Chapter 12 of the Laws of Malta.
Under our law, one is not generally required to warn the other of its intentions to institute a lawsuit. Of course, there are ethical considerations to take account of (ideally, one does grant an advance notice), as well as sparse consequences which the proponent may suffer for not having at least written to the respondent prior to filing an act (for example, a person issuing a warrant, such as a garnishee order, may be condemned to pay a penalty if it results that he had not called upon the defendant to pay the debt, as least 15 days prior to filing the warrant). But generally, one can proceed without having to file a proper notice beforehand.
However, cases against the government are treated differently. In fact, article 460 of Chapter 12 of the Laws of Malta states that no judicial act commencing any proceedings may be filed, and no proceedings may be taken or instituted, and no warrant may be demanded, against the government, or against any authority established by the Constitution, other than the Electoral Commission, or against any person holding a public office in his official capacity, except after the expiration of 10 days from the service against the government or such authority or person as aforesaid, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated. Naturally, there are some exceptions to this rule.
One can comprehend the purposes behind this law in what was described as its original purpose – to allow the possibility of out-of-court settlements prior to a case being instituted. One may also argue that this privilege is necessary for the efficient governance of a state. It is nevertheless a privilege that attracts a lot of criticism, and maybe justifiably so. As aptly stated by the Commission for the Holistic Reform of the Justice System in its White Paper and in its final report (issued on November 30, 2013): “this procedure puts the government in an advantageous position on the citizen, when the citizen does not have the same equality of arms against the government.”
Be it as it may – simply put, a formal notice must be given to the government prior to suing it, and one cannot file a lawsuit until 10 days pass from when that notice is received. Also, the law is clear that the warning must be in the proper form – through a judicial letter or a protest – and therefore, verbal warnings, e-mails, legal letters, etc., are not sufficient.
Courts in their ordinary jurisdiction are duty bound to strictly utilise the legal tools given to them, and apply the law
This is not a question of ethics or mere courtesy.
This is a requirement which must be observed, on pain of nullity.
As a matter of fact, various litigants have fallen into this trap, and throughout history, a myriad of cases have been thrown out simply because the government had not been properly warned in terms of this law.
The judgment of the Civil Court, First Hall decided on May 16, 2019 in the names of Godfrey Ciangura v Ministry of Home Affairs and National Security et was yet another one of those cases.
In this particular case, the plaintiff requested the Civil Court, First Hall to establish that the Aviation Security Committee (a governmental body) was abusive and unreasonable in its decision to reject his request for the renewal of his ‘OMAS Pass’. The OMAS Pass is a special pass which enables an individual to enter into certain restricted places in the airport. It was argued that the Aviation Security Committee had granted or renewed the ‘OMAS Pass’ of other individuals which were in the plaintiff’s same situation.
The plaintiff admitted that he had not sent a judicial letter as he was required to do by law. He argued however that the Aviation Security Committee knew about the complaint, and its members were well informed of the situation, since throughout the years, a number of legal letters had been sent. To the plaintiff, this was sufficient.
The court disagreed.
Quoting authors and judgments which had dealt with the matter in the past, it stated that the law is very clear about how the government is to be informed of a citizen’s complaint. The court outlined that not every judicial intimation would be adequate and sufficient for this procedural privilege to subsist. In fact, the warning must be made through a judicial letter or a protest – and must be put forward in a clear and concise manner for the authority to be able to address this complaint.
The court was completely correct; it abided perfectly by its duty to apply the law as it is, without delving into considerations of opinion on whether the law is fair or not. This might be hard to comprehend for some, but courts in their ordinary jurisdiction are duty-bound to strictly utilise the legal tools given to them, and apply the law, whether they agree with it or not.
However, cases such as these serve to spark again the very same question that has been asked time and time again, but that has yet to be tested in a court of law: How do these statal privileges at law fit with the principle of equality of arms? How do these procedural burdens affect the right of access to justice? Why should the government be granted privileges that an ordinary man is not?
It is curious to understand how a constitutional court would deal with questions such as these; and perhaps, it is only a matter of not if, but of when.
Graziella Cricchiola is a junior associate at Azzopardi, Borg & Abela Advocates.