While Parliament was lately debating the recent amendments regarding the Office of the Ombudsman, I had occasion to comment upon the general state of administrative justice in Malta. I lamented that, unfortunately, over the years, the judiciary did not strive enough to formulate sound jurisprudence in this regard as it did in other areas of law.
Juridically, in such matters, the courts were to follow the English model. This notwithstanding, however, while in the UK the judiciary is known to have managed to set important precedents favouring the common citizens against arbitrary and unreasonable decisions of the state, here, we have undoubtedly moved at a much slower pace even though recently our courts are proving to be more audacious. Consequently, as expected, there persists a general feeling and perception that Maltese citizens do not find sufficient remedy with regard to administrative injustices and abuse.
It is true, we do have an Ombudsman whose role has lately been enhanced. This institution, however, will never suffice on its own because, in essence, it will always lack executive powers to implement its conclusions and observations. The Ombudsman will always remain a parliamentary officer with an advisory role.
Unfortunately, over the years, administrative justice has been relegated to a multitude of ad hoc tribunals and boards. Curiously, there are close to 200 such entities that function within the ambit of the different ministries and government agencies. Undoubtedly, this is far from an ideal state of affairs because, more often than not, these lack transparency and independence. Many of these tribunals, in fact, hardly function at all.
The present need to address this lacuna in our legal framework was only tentatively addressed by the introduction of the Administrative Act of 2006, which set up the Administrative Review Tribunal. This law has finally come into force and the tribunal will hold its first sittings shortly.
It seems that, originally, as I will demonstrate, the idea was to set up an administrative division of the ordinary courts. I say this on account of a particular lapsus in the original drafting of the Bill which resonated the original intent. I recall, when going through the said Bill, noticing that at the very end of the said proposed legislation, article 469A of Chapter 12 of the Laws of Malta was to be abrogated. I was dumbfounded as the relative article is the one single provision of law that empowers the judiciary to scrutinise administrative acts.
The significance of this was colossal because it implied that the courts would be divested of all their power in the administrative field. I was prompt to pinpoint this to the Justice Minister in my parliamentary speech. His response was that the relative article of the law was merely a mistake. In truth, however, I had later discovered it was no mistake at all because the original idea, as stated, was to introduce an administrative court per se which would naturally absorb the powers indicated in the said article. It appears clear, therefore, that, unfortunately, the minister, at the end of the day, had a change of heart and, once again, opted to set up yet another tribunal.
Granted, it must be affirmed that the introduction of this new tribunal with general jurisdiction in administrative matters, which would gradually sound the death knell to all those ad hoc petty boards, was a step in the right direction.
On the other hand, given the experience we have had with tribunals, I don’t believe the government has gone far enough. Though the said tribunal will now be presided over by a member of the judiciary, this new forum is still not a court and, thereby, does not benefit from the constitutional safeguards afforded to the ordinary courts. The said law can be abrogated by a simple majority in Parliament. The right to seek judicial administrative redress in all matters should definitely be perpetuated by the supreme law.
The old Nationalist battle cry of no favours, but rights, should finally be put into practice and not left as a mere political slogan.
Dr Herrera is a Labour member of Parliament.