The opposition yesterday called for the setting up of a court of administrative review to end a situation where decisions by the Tribunal Against Injustices and the Ombudsman were not implemented by the government.

Opposition calls for court of administrative review

The call was made by Labour MP Jose Herrera when the House of Representatives debated, and later approved, a one-year extension to the term of the Tribunal Against Injustices. The tribunal was set up in 1997 by a Labour government to consider cases of alleged injustice during the term of the former Nationalist government up to the appointment of the Ombudsman in 1995.

Justice and Home Affairs Minister Tonio Borg said the tribunal was supposed to have completed its work four years ago, and its term had been extended repeatedly since.

He noted that it had been a Nationalist government which, through the setting up of the Commission for the Investigation of Injustices in 1987 had introduced the possibility of a remedy being given for an injustice even when this injustice did not constitute an illegality.

Injustices, Dr Borg said, could be committed as a result of wrong decisions or on purpose and such actions may be committed by ministers or officials. The commission could consider cases which took place in the past and even under the PN government, right up to 1995 when the Ombudsman was appointed.

Nonetheless the Labour government in 1997 set up the tribunal to investigate cases which preceded the appointment of the Ombudsman. Seven years after its setting up, the tribunal still had 96 pending cases, A total of just over 1,337 cases of alleged injustice were filed of which 903 were closed (including cases that were inadmissible or deserted).

A total of 394 cases were decided against the claimants and 395 were in favour.

In all, 413 individuals received financial compensation as a result of the tribunal's decisions.

Dr Borg said there were several cases where the government did not agree with the tribunal's decisions but it was only in a very small number of cases where the remedy requested by the tribunal was not given.

Those small numbers involved promotions in the public service, which had to be approved by the independent Public Service Commission which had the final say. In a small number of cases the government had also attacked the tribunal's decisions on points of law.

Dr Borg hoped this would be the last time that the tribunal's term would be extended.

Opposition justice spokesman Anglu Farrugia insisted that the tribunal was a fairer system to weed out injustices than the commission which the former Nationalist government had appointed.

He complained that the Nationalist government elected in 1998 had created all sorts of obstacles in order to make complainants give up their cases. Many procedural objections were raised and files requested as evidence were "lost." Indeed, 149 cases were withdrawn as soon as the 1998 PN government took office.

There were also too many cases where the remedy or compensation ordered by the tribunal had not been given by the government or its organisations, including, notably, Bank of Valletta and the Mediterranean Conference Centre.

Dr Farrugia insisted that where the Public Service Commission disagreed with promotions ordered by the tribunal, the people involved should not be held in abeyance and a remedy had to given. Otherwise, a fresh injustice would be committed.

Indeed, he could not see on what grounds the PSC had objected to the promotions requested, such as in the case of plasterers. In many cases, it was not politics which had caused these injustices, but pique among individuals, Dr Farrugia said.

The Labour MP also insisted that the government needed to implement the recommendations made in cases upheld by the Ombudsman, such as in the case of the AFM.

Where remedies in upheld cases were not given, one should consider going before the European Ombudsman, Dr Farrugia said.

Dr Jose Herrera (MLP) said it was scandalous that a tribunal presided by a judge had established that around 400 injustice cases had taken place, most of which were for political reasons.

Even worse was the double injustice committed when a remedy was not given.

Dr Herrera observed that in other countries, apart from the Ombudsman, who normally had no executive powers, there were administrative courts with executive powers. One should consider introducing an administrative review mechanism within Malta's judicial system as well. Administrative abuses were a serious manner and it was essential that the victims were given an effective and timely remedy. One could no longer have a situation where the tribunal was rendered a toothless dog. Unfortunately to date the ordinary courts had not been able to or did not have the courage, for reasons of division of powers, to come up with jurisprudence on administrative review. This system needed to change in the same way as times changed and the country matured.

Labour MP Joe Brincat said such a mechanism within the judicial system was needed to ensure there were proper checks and balances where administrative powers were concerned.

Instead of ad hoc tribunals or commissions, one needed a permanent mechanism, agreed by all parties, which could effectively carry out administrative review and had the necessary bite to correct injustices, independently of who was in government. He was prepared to help the government in the drafting of the necessary legislation. Indeed, he viewed such legislation as beneficial to ministers themselves, who could have problems exercising their administrative discretion.

It was not enough to say that there was the Ombudsman as that official was solely a moral authority. There needed to be an administrative tribunal formed of people who had experience in administration and were joined by others who could judge what was proper and what was not.

Dr Brincat also spoke on the concept of the individual responsibility of public officers who committed an injustice and said this concept needed to be introduced in Malta as well. One could no longer have a situation where an individual committed an injustice, and it was the government that was sued and had to pay compensation.

Winding up, Dr Borg said it was good to have a discussion on the powers of the courts on administrative review on the basis of what had been learnt from the setting up of the commission, the tribunal and the Ombusdman. Indeed, the PN government was the first to have set up bodies, mechanisms and regulations to restrict its own powers.

Dr Borg said one of the cases involving the Blue Sisters Hospital was a landmark on judicial review. A health minister wanted to introduce regulations obliging the hospital to make half of its beds available to the national health service but Mr Justice Herrera in June 1980 ruled that this would be illegal. In reaction to this, the then Labour government had said that unless a law specified otherwise, a condition established in a regulation was not illegal. This law was later repealed by a Nationalist government.

One should now consider whether one could continue to have tribunals or commissions or whether one should have a specialised court headed by judges to decide cases involving the government that were not only about actual violation of the law but also improper exercise of administrative discretion.