Home Malta Winds Emerging Trends in Maltese Administrative Law? Where is it heading?

Emerging Trends in Maltese Administrative Law? Where is it heading?

2
0
SHARE
Advertisement
Tamsyn Vella

Throughout the years there has been significant changes and influences on Administrative law. Case law has been one of these noteworthy influences, two examples of local case law that changed the way Administrative case law was decided was the case of Busuttil vs. Law Primaudaye in which the theory of dual personality was introduced1. Another important case that influenced a lot of succeeding cases was the case of John Lowell vs. Dr. Carmelo Caruana, which stated that following Malta’s independence; British Common Law did not continue to be a source of Administrative Law. This case also highlighted that the doctrine of the dual personality of the state has no place in Maltese law2. The Maltese Administrative law set up is modeled on the English Administrative law where the courts follow judge- made law and these judgments are binding. When it comes to Malta the judgments are not binding to any other court but they are heavily influential. Malta is also influenced by trends that are occurring in the European Union and the European Court of Justice, one of them is the codification of Administrative laws of the European Union. Currently, in Malta, Administrative law is scattered in different codes and laws of Malta. Another emerging trend in EU and its Member States is the establishment of an Administrative Court instead of an Administrative Tribunal in order to have more competency and more power because it is not unusual that Administrative Review Tribunal has to reject a claim due to incompetence and lack of jurisdiction.

In the case of Silvio Camilleri vs
Transport Malta
3, the plaintiff filed a claim to the tribunal
due to the fact that he received a letter on the 30th of May 2018 from Transport Malta that his driving
licence was revoked in accordance to Regulation 36C Subsidiary legislation
65.18 because he reached the 12 penal points. Enclosed with the letter there
was also a list of contraventions that the plaintiff had allegedly committed
however, the plaintiff claimed that he was never notified about such
contraventions and only became aware of them from this letter. Camilleri also
stated to the tribunal that his vehicle was mainly used either by his employee
or by his son and that they never informed him about any contraventions that
they have allegedly committed. The plaintiff
went on to say that the revocation
of his licence was unjust

and breaching his fundamental human rights because he was never notified
of the alleged contraventions and he was never given any right to appeal such allegations
in front of the competent tribunal. On the other hand, Transport Malta stated
that the Administrative Review Tribunal had no competency to review and decide
such case, because according to article 5(2) of Chapter 490 of the Laws of
Malta:

“it-Tribunal ta’ Reviżjoni Amministrattiva ma jkollux kompetenza ġenerali
li jirrevedi atti amministrattivi li jistgħu jiġu riveduti skont l-artikolu
469A tal-Kodici ta’ Organizazzjoni u Proċedura Civili iżda jkollu l-kompetenza
li jirrevedi dawk l-atti amministrattivi kif jista’ jiġi preskritt f’dan l- Att
jew taħtu jew kull liġi oħra li tistabbilixxi l-kompetenza tat- Tribunal ta’
Reviżjoni Amministrattiva fuq xi klassi ta’ atti amministrattivi”4.

It
went on to say that according to article 40(1) of chapter 499 of the Laws of
Malta it stated that:  1) 
The  Administrative  Review 
Tribunal  established  by article 
5  of  the Administrative Justice Act shall be
competent to hear and determine:

( a ) appeals made by any person
aggrieved by any decision of the Authority not to grant or renew, or to suspend
or to revoke an authorisation, or a licence or a permit, or to impose
conditions, limitations or exclusions therein or therefore; and

Transport Malta said that: “Fil-kaz odjern m’hemm ebda deċiżjoni magħmula
mill- Awtorita’ intimata izda semplicement ħrug ta’ avviz illi joħrog
awtomatikament mill- Awtorita’ intimata li fost il-funzjonijiet regolatorji
tagħha hemm il-licenzja tas- sewqan ta’ vetturi fit-toroq, appena din ġiet
informata illi l-appellant laħaq 12-il punt penali. 5 ” Furthermore
the plaintiff is not appealing any decision made by the Authority but only
contesting the alleged lack of notification about the contraventions and
therefore he cannot contest in accordance to article 40(1) of Chapter 499.

The Tribunal stated that it only has competence when the licence has been
revoked three times in a span of five years or for the fourth time in a span of
seven years and only in those circumstances does the tribunal have the
competence to shorten the sentence of the revoked licence. The Tribunal also
noted that

“Madankollu it-Tribunal josserva wkoll illi
ma jezisti l-ebda dritt ta’ appell minn tali decizjoni u dana ghaliex ai
termini tal-Legislazzjoni Susidjarja 65.18 il-kompetenza ta’ dan it- Tribunal
fejn jidhlu kwistjonijiet ta’ revoka wara akkumulazzjoni ta’ punti ta’ penali
hija wahda pjuttost limitata.6

Therefore the tribunal decided not to hear
the case as it had no competence, however it still noted that there are
limitations of remedies when it comes to such case. If on the other hand there
would have been an administrative Court the jurisdiction would most likely be
increased and it would be able to hear such cases instead of refusing them
based on the limitations that the Administrative Tribunal has.

Another case that focuses on the limitation
of the competency of the Administrative Review Tribunal is that of Peter Polidano vs Awtorita’ tal-Artijiet7.
The Plaintiff applied for a ‘Disposal by Tender’ in Birżebbuġia, and such
application was rejected by the Board of Governors their reason being; “Peress
li d-development history tas-sit in-kwistjoni fejn jidher li sar żvilupp mhux
kopert b’permess u għalhekk il-Bord ma jħossx li għandu jikkonsolida żvilupp illegali… 8

The appellant felt that the decision was unfair and prejudicial because
he did not commit the illegality because this was done by another party that
occupies part of the appellant’s land. The appellant pleads that:

“il-Bord ta’ Gvernaturi tal-Awtorita tal-Artijiet u filwaqt li jirriżerva
d-dritt li jressaq provi u li jagħmel sottomissjonijiet ulterjuri quddiem dan
it-Tribunal, jitlob bir- rispett lil dan it-Tribunal jogħġbu jirrevoka, jħassar
u jannulla d-deċiżjoni tat-Bord tal- Gvernaturi (File number GLA1/2018/000F
(PZ) meħuda nhar l-24 ta’ Lulju 2018 u jordna minflok illi tintlaqa’ t-talba li
saret mill-appellant, filwaqt li jagħti dawk l- ordnijiet jew provvedimenti
oħra li jidhirlu xierqa u ġusti.”9

On the other
hand the Authority stated:

“Illi t-talba tar-rikorrenti għandha tiġi miċħuda stante li ma ġiet
indikata l-ebda bażi legali fondata, mill-istess rikorrenti, li tikkostitwixxi
raġuni valida kemm fil-fatt u kemm fid-dritt amministrattiv li timmerita
reviżjoni ta’ dan l-għemil amministrattiv;”

“Illi Art7(2)(c) tal-Kap 563 jagħmilha l-funzjoni tal-Awtorita’ tal-Artijiet
illi “tamministra bl-akbar mod assolut sabiex isir l-aħjar użu tal-art kollha
tal-Gvern ta’ Malta u kull art li tifforma parti mill-isfera pubblika”
w’għaldaqstant l- Awtorita’ kienet fid-dittijiet pjeni tagħha li tiehu tali
decizjoni;”

Hence the Authority stated that the Tribunal should refuse the plea of
the appellant. The Tribunal held that the Board of Governors failed to look at
the whole picture of the situation and that they evaluated the application in a
superficial manner and that:

“Fl-opinjoni ta’ dan it-Tribunal, jista’ jkun, u probabbli hekk hu stante
li kkunsidra li ladarba r-rikorrent fit-talba tieghu iddikjara li l-unika art
li hemm adjacenti ghall-art mitluba hija tieghu, illi l-Bord ikkunsidra li
l-izvilupp illegali kien sar mir-rikorrent. Din tirrizulta li kienet assunzjoni
zbaljata u kwindi l- Bord ha in konsiderazzjoni cirkostanza fattwalment
zbaljata.”10

“Għaldaqstant jirriżulta ċar illi l-Bord tal-Gvernaturi għamel
apprezzament tat- talba tar-rikorrent b’mod żbaljat u kwindi t-Tribunal qiegħed
iħassar u jirrevoka d-deċizjoni u jistieden lill-Bord jerga’ jirrikonsidra
t-talba tar-rikorrent fid-dawl ta’ dak imsemmi iktar ‘il fuq. Madankollu
t-Tribunal ma jistgħax jilqa’ huwa stess it-talba tar-rikorrent għaliex dan ma
jaqgħax fil-kompetenza tieghu. Li jista’ jagħmel, kif qiegħed jagħmel, huwa li
jannulla d-deċizjoni tal-Awtorita` intimata sabiex jerġa’ jsir il-process li
jwassal ghal decizjoni gdida fid-dawl ta’ din is-sentenza.”11

The Final decision of the Tribunal was that; “Għaldaqstant it-Tribunal,
għar-raġunijiet hawn fuq esposti, filwaqt li jilqa’ l-appell tar-rikorrenti
fit-termini hawn fuq enuncjati u għaldaqstant jħassar u jannula d-decizjoni
appellata datata 24 ta’ Lulju 2018, jiċħad ir-risposta tal- Awtorita` intimata”12

In this case the Tribunal stated that it was not fully competent to accept the applicant’s plea, however, the Tribunal still managed to revoke the decision of the Board and asked the Board to reconsider its decision. This case also goes to show the limitations of the Tribunal, and this can be deemed to be at times insufficient because although the Tribunal noted that the appellant was in the right and that he was being prejudiced and discriminated by the Board, the Administrative Review Tribunal was still limited and could only revoke the Board’s decision and ask for reconsideration.

As one can see from local cases there is a need for a clearer understanding as to where a citizen may file a case because a lot of the time, cases are wrongly filed at the Administrative Review Tribunal due to the fact that the Tribunal does not always have the competence to decide a case and this at times leaves the citizen with no legal remedy due to factors such as period of prescription to file a case, therefore it would be beneficial if there is a codification of the Administrative Law as this would be able to clarify when a citizen can file a case with the Tribunal. Moreover, if there is a codification of the Administrative Law, the Tribunal may be allocated more competency and power or the code may establish and Administrative Court similar to that of France. The Codification of Administrative Law is also an emerging trend in EU law and this might eventually further influence Malta to eventually codify its own Code. There are also other current trends in EU law that the Maltese administration might be focusing on in the future such as reducing administrative delays, expanding public participation and increasing the government’s liability.

1  Prof. Ian  Refalo  Administrative  Law Cases..
2  Prof. Ian  Refalo  Administrative  Law Cases..
3 Silvio Camilleri vs Transport
Malta
[2019] Administrative Review Tribunal,
Rikors Numru 54/2018 (Administrative Review Tribunal).
4 ibid
5 ibid
6 ibid
7 Peter Polidano vs
Awtorita tal-Artijiet
[2019] Administrative Review Tribunal, Rikors Numru 87/2018
(Administrative Review Tribunal).
8 ibid
9 ibid
10 ibid
11 ibid
12 ibid
Written by: Tamsyn Vella

The post Emerging Trends in Maltese Administrative Law? Where is it heading? appeared first on maltawinds.com.

Original article found on Malta Winds

LEAVE A REPLY

Please enter your comment!
Please enter your name here