A court has declined to exercise its powers in a breach of rights case filed by consumers seeking to cancel the government’s deal with Electrogas, citing other ordinary remedies that could “fully and unequivocally” address the applicants’ complaints.

Proceedings were filed two years ago before the constitutional court by 47 civil society activists who claimed that the government's deal with Electrogas for the building and operation of a new power station was a source of fraud that breached consumers’ fundamental rights.  

The applicants had instituted the proceedings against the State Advocate, Enemalta plc and ARMS Ltd. They said they were consumers paying fixed tariffs for essential water and electricity services that were subject to an “absolute monopoly,” leaving them with no option but to obtain such services from Enemalta.

They said that as consumers they were also being charged unjust prices because of an “additional layer” introduced between fuel supplier Socar SA and Enemalta. The deal benefited private interests to the detriment of national and public interests.

They requested the court to award compensation for damages and to rescind the deal over which, they pointed out, even the Auditor General had voiced “serious concern” about in a 2018 report.

Their claims were thrown out by the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Grazio Mercieca, who concluded that there were other ordinary legal procedures that provided effective and adequate remedies.

Whilst acknowledging that the applicants were right in arguing that the court of constitutional jurisdiction was the only court that could pronounce itself about an alleged breach of rights, however, it did not follow that a remedy was to be granted by this court, said Mr Justice Mercieca.

“If the State itself, by means of ordinary laws, provides an appropriate and adequate remedy, then at the end of the day it would not be breaching fundamental rights,” went on the judge.

Moreover, the Constitution made it clear that this court had discretion as to whether to exercise its powers or not.

Such discretion was not to be exercised in an arbitrary manner. On the one hand, the court could not use discretion as an excuse to shrug off its responsibility as a watchful guardian of fundamental human rights.

On the other hand, the court should not replace any “rectification mechanism” which, if applied adequately, provided a remedy for the damage caused.

That was why the constitutional court was looked upon as a “tribunal of last resort.”

“Should such discretion be exercised in any other way, it may easily render constitutional proceedings banal and trivial,” observed Mr Justice Mercieca, thus declining to take further cognizance of the applicants’ claims.

Other ordinary remedies

In this case, the court said, there were other ordinary remedies which the applicants could resort to.

In the first place, the Regulator for Energy and Water Services was granted very wide powers and could handle every sort of complaint by consumers, providing an adequate remedy accordingly.

The Regulator enjoyed wide discretion and was not bound by the strict provisions of the Civil Code when meting out remedies.

There was also an “unlimited right of appeal” if the Regulator’s decision went against consumers’ complaints.

“Such a procedure is undoubtedly an ordinary remedy that is cheap, expedient, informal and effective,” observed Mr Justice Mercieca.

Another remedy was that introduced under the Civil Code in 2002, whereby a person has a right to sue for damages arising from corruption.

Such action may be filed against those committing the alleged corruption or those who fail to take reasonable steps to prevent it.

This particular provision of the Civil Code answered “fully and unequivocally” the applicants’ complaint, eliminating every legal obstacle in the way of anyone wanting to challenge a contract between third parties which impacted him directly.

“That is certainly an effective and adequate remedy for whoever, like the applicants, claims to be negatively impacted by corruption,” observed the judge.

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