Boat owner wins appeal on Dwejra passenger service

The Constitutional Court yesterday upheld an appeal filed by David Axiaq from a judgment of the First Hall of the Civil Court and ordered that the case be remitted to the first court for the merits to be heard.

The judgment was delivered in the case filed by Axiaq against the Malta Transport Authority. Axiaq had filed his constitutional application in 1997 claiming he had been discriminated against by the authority.

Axiaq had applied to the authority for a licence to operate a passenger boat at Dwejra. The licence was issued by respondent in 1996 and Axiaq commenced operations. However, in the following year, the authority had declared it was not going to renew the licence on the basis that the licence had been inadvertently issued in Axiaq's favour notwithstanding that the authority's policy restricted the number of existing licences.

It resulted that the authority had acted following an investigation carried out by the Ombudsman after a complaint by another boat owner who had not been granted a licence.

Axiaq claimed he had been discriminated against by the authority and that his right to a fair hearing had been violated. He requested the First Hall of the Civil Court to provide him with a remedy.

However, the First Hall of the Civil Court, in its constitutional jurisdiction, had declined to hear the application on the basis that Axiaq had other remedies available to him at law. Axiaq then appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The Constitutional Court declared that although the first court was empowered to decline to exercise its constitutional jurisdiction, such power had always to be exercised prudently so as not to deprive the individual of a constitutional remedy.

The dispute in this case was based on the fact that the authority operated a policy (not a law) to the effect that only eight pleasure boats could be licensed for Dwejra. This policy was the only reason for the refusal of the authority to renew Axiaq's licence in 1997.

The Constitutional Court declared that while the authority could have a policy limiting the number of licences issued, this policy could not run counter to law and could not, when operated, violate any of the provisions of the European Convention of Human Rights. Axiaq had alleged, in his constitutional application, that his fundamental human rights, as protected by the convention, were being violated by the operation of the policy.

When examining the authority's submission that Axiaq could avail himself of the other remedy, namely that of requesting a judicial review of the administrative discretion applied, the Constitutional Court ruled that such a review would not, in this case, provide Axiaq with an effective remedy should his complaint prove justified.

The Constitutional Court therefore revoked the judgment of the first court and remitted the constitutional application to the court of first instance to be heard on its merits.