Last January, the Minister of Justice published a White Paper entitled Towards a Better and More Expeditious Administration of Justice. The government is, in fact, proposing no less than 26 radical amendments, covering both the criminal and civil field. The scope of any White Paper is undoubtedly to stimulate general debate. Hopefully, an open and public discussion of what is being suggested will not prove to be a futile exercise but will enhance the final Bill that will eventually be presented in Parliament.

Though the recommendations being made are wide and varied, some naturally stand out more than others and are therefore perhaps more worthwhile reflecting upon. The establishment of an Administrative Court is one such instance. It is correctly stated in the White Paper that our country continued to follow the principles of British Public Law, even after Independence, and consequently we do not have our own Code of Administrative Law as is found in other Continental European countries. In our country, as in the UK, our Ordinary Courts are vested with general jurisdiction in administrative matters, albeit nowadays with increasing restraints due to the mushrooming of many special ad hoc tribunals.

It is interesting to note, with dismay, that while in the UK over the years, the Ordinary Courts have, as a rule, been audacious enough to expand their competence, in Malta we have experienced quite the opposite. Though today the old concepts, which used to be referred to as iure imperi and iure gestionis, are regarded as outdated principles of law, in practice our courts still in actual fact embrace them to a certain degree.

In point of fact, while as a rule our courts find no difficulty in pronouncing judgement against the government in commercial matters, they often prove too hesitant in following suit in administrative issues. The courts have persistently been only too reluctant to overrule executive and administrative decisions and we , unfortunately, have had to bear the brunt of an overbearing State. In fact, for years on end, the instances when our judges actually overruled executive discretion were few and far between, which few judgements today are regarded as having done monumental justice. In truth however, it must be also pointed out that over the last few years this attitude has, thankfully, changed somewhat.

It must also be mentioned that in reality, however, we have for some time been flirting with the idea of having an Administrative Tribunal with general jurisdiction. In the late 1980s, the then government introduced the Commission for the Investigation of Injustices. In 1997, the newly elected Labour Party went one step further and established the Tribunal for the Investigation of Injustices. These two tribunals, however, have both fallen short of being construed as an Administrative Court per se, and this for various reasons.

Primarily, both these tribunals were limited in their jurisdiction to deal with applications referring to specific periods of time, that is, from 1971 to 1987 and then from 1987 to 1996. Therefore, today there is no similar judicial forum to take cognisance of complaints referring to incidents which only occurred after 1996. Worse still, it must be highlighted that these ad hoc tribunals were endowed solely with the power to make recommendations. Therefore they did not enjoy the executive powers which are taken for granted in the Ordinary Courts.

Another defect with these tribunals was the fact that there was no right of appeal and therefore no High Court to rectify any mistakes made. Finally, it must also be pointed out that these tribunals did not enjoy the absolute autonomy and independence that are vested in the ordinary members of the judiciary. This has proved to be the case even when, in the latter tribunal, the chairman himself had to be a member of the judiciary. This has meant that these tribunals are not regarded as part of the judiciary, so much so that the Minister responsible could play musical chairs with the incumbent, as happened lately.

Considering, therefore, what has been said, it definitely appears that the time is now ripe for the introduction of an Administrative Court in Malta. It is, however, my earnest opinion that what has to be introduced in Malta is not just another ad hoc tribunal. What we have to do is introduce relative amendments thereby creating another division in our judicial organ of State. In this regard, and as a point of fact, on the Continent this is exactly what we find. In Italy for example, we find that there are at least 18 different divisions in the ordinary judicial set-up that cater for the different aspects of law; separate Court divisions dealing for example with Diritto Agrario, Diritto Ambientale, Diritto Civile, Diritto Commeciale and finally Diritto Amministrattivo among others.

Traditionally, and correctly so, our Civil Courts do not exist simply to arbitrate in private disputes. The scope of having a strong independent judicial organ goes much deeper than that and impinges on the fundamental concept of the separation of powers which signifies a system of checks and balances between the three organs of State.

Removing the jurisdiction from our ordinary Courts on administrative matters will signify a cessation of the judiciary’s ultimate role of scrutinising the administration and this will surely be counter-productive.

Dr Jose A. Herrera LLD