A proposed bill drawn up by members of the Malta Law Students’ Society (GħSL) aims to clarify and streamline the judicial review process, society president Andrew Drago told The Malta Independent on Sunday.
Drago explained that the process of drafting this proposal began a year ago. He said that students studying administrative law during the second year of the law course at the University of Malta realised that the judicial review aspect “had a lot of pitfalls”.
He said that these pitfalls and the complicated nature of the law leads to a lot of cases being lost as a result of very technical legal points rather than whether or not the person opening the case is right or wrong. Drago said that GħSL took the initiative to work on releasing its own proposal with assistance from the University faculty after coming to the realisation that this law was not appropriate and did not lead to justice.
Explaining the four main points of the proposal, he said that the first change being put forward is clarification. As it stands, he said that the law of judicial review is fragmented into three pieces and that many theorists say the manner in which public administration works is split into three categories. He said that one of these categories is public authorities such as the Planning Authority that comes out with decisions which are regarded as having executive power, as Parliament gives them the ability to do so.
The GħSL president said that another category is “entities almost judiciary”, referring to boards and tribunals. Drago explained that despite these entities functioning like the court, they cannot be considered as such because of the way in which those who judge are appointed. He added that the way these entities are established means they are an emanation of the executive, meaning that decisions of boards and tribunals are also treated as an administrative act.
The last of the three categories is through delegated legislation, he said. “This is basically when you have Parliament giving public authorities the ability to come out with regulations and subsidiary laws which impact either everyone or some individuals directly.” He added that this is a form in which the executive manages itself. These subsidiary laws do not need to be considered as normal laws due to being passed by public authorities and being technical in nature, “but they are treated as laws nonetheless”.
He said that the proposal would codify these three forms in which the public administration exercises its executive power into one law. He added that this will impact citizens in the sense that people will know that when their case is heard, it will be more accessible and heard on its merit.
The second major change is in the definition of a “public authority”. Drago said that the law of judicial review applies only against public authorities, but that the definition as it stands excludes government companies and entities which conduct a public function but in some way do not fall under the restrictive definition currently presented in the law. He said that the government is able to pass on certain powers to these companies and citizens are therefore not able to bring forward their case against these government companies simply because in terms of the law, despite carrying out a public function, it is a company and not a public authority.
“We are providing a substance over form approach through this proposal,” he said. “We are saying that if a public entity, a company, foundation, etc., conducts a public function then it must be considered as a public authority.” He explained that part of the definition they are using is a “but-for test”, meaning that if an entity is conducting a public service that the government would have to do if it were not for that entity, then it must be considered a public authority.
"If it were not for that company performing that public function, the state would have to intervene, then that is a public authority."
To provide an example, he brought up the Malta International Airport. He said that despite there only being one airport in Malta, the way the law is currently written would mean that if the airport were to discriminate against someone or release an order against someone without reasonable procedure, the court would not be allowed to get involved as the MIA is a company. “But there is only one airport in Malta and if that airport does not service you, what can you do?” In that circumstance, hypothetically speaking, the MIA is assuming a function that the state would have to handle otherwise.
“We are arguing that these types of entities are assuming a public role and so must subject themselves to judicial review.”
The third major change forming part of the proposal relates to what is referred to as legal standing. Drago explained that this is one’s ability to move a case forward. He said that for someone to be able to open a case, they need to prove that the matter they are challenging impacts them in a “direct, actual and juridical manner”. This means that if a decision does not personally impact you, then you are not able to challenge it. “This type of doctrine has led to a situation where an administrative decision, which impacts everyone at once, cannot be challenged,” he added.
Drago said that a case being excluded on the aforementioned basis is something which GħSL considers a great injustice and very dangerous, because “you are saying that if a decision has a widespread effect and does not impact someone personally or directly, then no one would be able to make the case”. He added that certain large administrative decisions, which impact everyone, could be illegal and reign with no impunity with no one being able to challenge them.
“To us, this is a serious pitfall and we are trying to remedy it through a new definition of legal standing referred to as sufficient interest.”
Through the proposal, everyone with sufficient interest will be able to bring forward a case, he said. He used the example of an NGO representing a case and being able to bring forward a case themselves, which would be possible if this proposal is adopted.
The fourth and final major change would be the time period someone has to bring forward a case for judicial review. He said that the way it is at the moment is someone has six months to present their case and that the time period never pauses. “There are two problems with this,” he said. The first problem, he began, is that six months is somewhat of an anomaly in Maltese law “as it doesn’t really exist as a time of time-barring”, unlike the usual 30 days, year or two-year terms.
The second and biggest problem, he said, is that the time period never pausing or being suspended means that people are not able to refer to the Ombudsman in order to get a remedy out of court. Drago said that the Ombudsman generally takes eight to nine months to give a recommendation after reviewing a case, meaning that if one were to wait for this, they would lose their opportunity to bring their case forward to court. Drago added that the Ombudsman is a constitutional office and that the law as it is, reduces access to this office.
“Aside from this, you need to encourage people to reach an out of court settlement. Court costs a lot of money and oftentimes the Ombudsman reaches an agreement with the government and the individual where the two parties manage to agree.” Drago added that the Ombudsman has a great track record in this regard and that these settlements results in less delay as well as less uncertainties. However, he continued, the current law “basically prevents access of the Ombudsman to these types of administrative decisions”.
Drago explained that GħSL is proposing that when someone refers their case to the Ombudsman, the time period for someone to bring their case to court is paused until the Ombudsman provides the final recommendation, after which the time period would resume. “We believe that the time period being suspended is essential, so much so that the Ombudsman took on our proposal and put it in the Ombudsplan.”
The Malta Independent on Sunday asked Drago for his thoughts regarding concerns that what many feel is already a lengthy court process could potentially be worsened through some of the proposed changes. He answered that he believes in the contrary and that if the proposal is passed, these types of cases would be expedited. “These types of judicial review cases are still being opened, so what we are trying to do is make it more clarified, accessible, just and streamlined.
He was also asked as to how the cooperation between the GħSL and the Nationalist Party on this proposal had materialised. Drago explained that the Law Students’ Society had conducted various conferences and drafting sessions which both the government and the Opposition were invited to, and that GħSL kept them both updated throughout the process. He emphasised that GħSL is not politically-affiliated in any way, and that what interests them is that this law, which they believe is unjust and “has not been substantially changed since 1995”, begins being discussed.
“We reached out on each side to raise awareness and moved forward from there. We are an apolitical association.”
Drago concluded by saying that although this is the first time that the Law Students’ Society has presented a proposal, which was then tabled in Parliament, the association works on policy papers and proposals regarding different aspects of the law each year. He added that he urges for this matter to be examined properly and for the situation to be rectified.