If you’re planning to sue the government, you’d better hurry. Very soon, it may no longer be a legal option in Malta.

At least, that is what some members of the legal profession are whispering to each other in the shadows of the Law Courts, or surreptitiously over cappuccinos in Valletta coffee shops – occasionally (I kid you not) even in the opinion pages of The Times.

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The story goes like this. In a bill currently in committee stage in Parliament, the government is proposing a measure that may effectively render it impossible for citizens or institutions alike to seek judicial redress against its own actions and decisions in a court of law. Instead, citizens would be able to seek redress through a “special tribunal” – emphasis, it seems, on the word “special”.

Ostensibly, the purpose of Bill 82 is to enact a wide-ranging reform of the justice system in order to improve the efficiency of the Law Courts, cut down on red tape, combine the dozens of existing tribunals under a single umbrella, and generally restore balance to the Force.

However, in an article on Thursday, 21 December, Labour MP Jose Herrera voiced his concern that, among other provisions, Bill 82 also proposes the abrogation, in its entirety, of article 469A of Chapter 12 of the Laws of Malta (the Code of Organisation and Civil Procedure). In Dr Herrera’s view, this proposal “will signify the end of judicial review of the administration.”

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OK, so I’ve always been a sucker for high drama (having been brought up on Dallas, Dynasty, Larry ix-Xadin, etc.) and, in spite of private misgivings that this might turn out to be just another conspiracy theory, I decided to look into the matter myself.

I found that Article 469A of Chapter 12 is actually the only article of Maltese law that empowers the judiciary to scrutinise abuses carried out the Government of Malta, in all its manifestations. It was introduced in 1995 by the Eddie Fenech Adami administration of government, then in its second term.

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This detail in itself is not irrelevant: Dr Fenech Adami was Opposition leader at a time when the government pulled no stops in its efforts to bypass the judiciary altogether, and effectively render it either a) impossible or b) unfeasible to seek judicial redress from its own abuses.

Among the cases I seem to remember (and against which the Nationalist had raged so passionately, sometimes with success) were those involving the Blue Sisters, the ban on public meetings in Zejtun and elsewhere and the Church schools issue, as well as the case of a private individual who tried to sue the late former Public Works Minister Lorry Sant. Attempts were made to undermine all these cases, as I recall, using strategies such as the constant objection to individual judges in a bid to delay justice indefinitely.

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So it was thanks to the post-1987 Nationalist government that Article 469A came into being in the first place. Specifically, the article decrees that “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” in any of a number of cases: for instance, where the administrative act is “in violation of the Constitution”; or when a public authority “has failed to observe the principles of natural justice”, among others.

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And now for Bill 82, which was first read in Parliament in July 2006, with subsequent amendments (including the above proposal) published in the Government Gazette on 26 October. The document is available for download in PDF format from the Department of Information.

According to the first article of the second column of the third schedule of the bill (page 57, if you’ve already printed out your own copy), the government is now proposing to replace the entire article with the following, somewhat less reassuring, legal provision:

“For the purposes of this article, and of any other provision of this and any other law, service with the government is a special relationship regulated by the legal provisions specifically applicable to it and the terms and conditions from time to time established by the government, and no law or provision thereof relating to conditions of employment or to contracts of service or employment applies, or ever heretofore applied, to service with the government except to the extent that such law provides otherwise.”

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Sifting through the legalese, a number of concerns spring to mind. The most immediate is that no reference is made to any sort of administrative review on the part of the judiciary, suggesting that the government is taking the opportunity of a procedural reform to place itself quite literally above and outside the law.

Another concern is the fact that, in the above wording, the government also seems to be appointing itself as regulator par excellence of the “special relationship” mentioned in the provision – having also established the terms and conditions of the same relationship to begin with. Now, I admit I am no expert in law. But is it possible to reconcile that measure with the elementary principle of natural justice, Nemo judex in causa sua? (That’s Latin for “Colourful little cartoon fishes should never be judges in their own court”, by the way).

Something else: the words “or ever heretofore applied” strongly suggest to my mind that this amendment will also be retroactive with immediate effect. How will it therefore affect current and pending cases? For instance, those involving government expropriation of land, of which I understand there are quite a few at present?

I’ll leave you to draw your own conclusions, but I can’t help but think this is a poor and confusing substitute for the otherwise crystal-clear Article 469A. As such, it arouses suspicion that the legal brains behind the Nationalist Party may have changed tack considerably from the distant 1980s – now that they themselves are the ones calling the shots, and possibly feeling the pinch of a meddlesome judiciary.

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Having said that, it is only fair to add that Article 469A will not be altogether wiped off the face of Maltese law. The exact same wording, having been carefully deleted from Code of Organisation and Civil Procedure, will instead reappear in Section 3 of the Administrative Justice Act, under the heading “Tribunal of Administrative Review”.

Ah, you might be thinking, if that’s the case, then why all the fuss? Public administration will still be accountable to the law: just in a different tribunal, that’s all.

Yes, in a different tribunal, which (as far as I can make out) is also appointed using different means, governed by a different legal framework and against which there appears to be no right of appeal. Or so I am told, at any rate.

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The trouble is that there is too little public information about this measure. This week I sent a few questions about Bill 82 to Parliamentary Secretary Carmelo Mifsud Bonnici. I have yet to receive a reply – which is understandable, as I admittedly sent them at very short notice. The questions were these:

1) What is the reason for the proposed abrogation of Article 469A?

2) Do you agree that this measure will deny citizens the right to seek judicial redress against government decisions and acts? If not, could you also supply your reasons why this would not be the case?

3) I understand that the government has already suggested it will revise this part of the amendment during the committee stage of the parliamentary debate. Is this true, and in what way does the government propose to revise the bill?

4) How would you respond to the interpretation that this move is diametrically opposed to your party’s previous, long-standing commitment to combat a number of very similar exercises carried out by the Labour administration during the 1970s and 1980s?

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To these, I was sorely tempted to add another, namely: did the Justice Ministry also hit on the idea of the abortion Constitutional amendment specifically to deflect public attention from this particular ruse? Because if that is the case, I must say it was a spectacularly successful strategy. Look at us all, squabbling like headless chickens over an entirely nonsensical measure, while a comparatively trivial little legal detail (eg, the right to sue one’s government in a court of law) is spirited away from us right under our noses. How very ingenious.

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Right, that’s it from me. If anyone else out there – you know, all the self-proclaimed scientists, legal weasels (whatever that means) or Philosopher Kings whose indignation I seem to occasionally excite – wants to write in with answers of their own, please go ahead. But I must warn you that I will not be around to personally reply to any future diatribes, as this will be my last article for The Malta Independent on Sunday.

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I was about to sign off with the traditional “Happy New Year” – but as any fool worth his folly will immediately tell you, that actually takes place on 1 April with the new spring; and not in January, when nature (not to mention civic consciousness) is in another galaxy, far, far away.

So I’ll sign off with a Robert Zimmerman quote instead, and “just say fare thee well”.