Judge rules eviction law clause null and void

The First Hall of the Civil Court yesterday ruled that a provision of the Land (Compulsory Eviction) Act was null and void on the basis that it was in violation of the right to a fair hearing as protected by the European Convention of Human Rights.

The court, presided over by Mr Justice Tonio Mallia, delivered this judgment in the case filed by Emanuel and Mary Camilleri against the Commissioner of Lands and the Attorney General.

It resulted that the Camilleris lived in a house in Siggiewi. The house had three door numbers but all the properties were jointed.

The court heard that the property had originally been occupied by a certain Antonio Pace by title of lease from the Archbishop's Curia. At one point the Camilleris had gone to live with Mr Pace and they claimed that this was with the Curia's consent.

The rent continued to be accepted by the Curia and the Camilleris had remained in the house after Mr Pace's death.

The house had eventually been transferred to the government in virtue of an agreement between the government and the Holy See and the rent was then paid to the Joint Office.

The Commissioner of Land, as the new owner of the property, had reached the conclusion that the Camilleris were occupying the house without a valid title and issued an eviction order against them in terms of the Land (Compulsory Eviction) Act.

Mr Justice Mallia pointed out in his judgment that article 3 of this law stipulated that where the commissioner was of the opinion that it was necessary or expedient to so do, he could, in his absolute discretion, order the eviction of any person from the property that person was occupying without title.

This article further stipulated that if the occupant did not comply with the eviction order within the stipulated time, then the commissioner could order a police officer, not below the rank of inspector, to take all such steps as were reasonably necessary to enforce the order.

The court said that this article of the law gave very wide discretionary powers to the Commissioner of Land and the law did not provide any method for this order to be attacked or challenged before an independent and impartial court.

The Camilleris had claimed that this law was in violation of their right to a fair hearing and also of their right to freedom from discrimination.

They claimed that they were discriminated against when compared with the Commissioner of Lands.

They further claimed that the law was in violation of their right to respect for family life.

In its judgment the court declared that the right to a fair hearing comprised not only guaranteed procedural remedies in relation to judicial proceedings but also the right to judicial proceedings and access to the courts.

When a question of civil rights and obligations had to be determined, the question ought not to be decided upon by one of the parties to the question but by an independent and impartial court.

If this principle was applied to this case, this would mean that the decision as to whether the Camilleris were occupying the property without a title ought not to be taken by the commissioner himself but by a court which could hear all the relevant evidence and act in accordance with the principles of natural justice.

If the provision of article 3 of the Land (Compulsory Eviction) Act was applied, the evicted occupier was not entitled to contest the allegation that he had been occupying government property without a title.

When examining the defendants' pleas the court noted that defendants had submitted that every decision taken by the commissioner could be contested before the courts by the procedure of judicial review of administrative action.

This, said the court, was not an effective remedy, for in such cases the courts had limited jurisdiction and were not entitled to decide upon the facts of the case.

All that the courts could do when reviewing administrative acts was to see whether the principles of natural justice had been observed and whether the administrative discretion had been exercised within legal limits and for reasonable purposes.

Mr Justice Mallia declared he did not agree with the defendants' submissions that judicial review gave an adequate or effective remedy to a person who was evicted from government property for in such cases the decision on the civil rights of the former occupant were being taken by the Commissioner of Lands and not by an independent court.

This case did not involve an administrative decision but involved subjects that directly affected the right of a citizen to remain in occupation of government property which he had not been occupying clandestinely.

The decision as to whether a person was lawfully occupying a property had to be taken by an independent court.

It was therefore clear that the occupant of government property had to be entitled to access to the courts for a decision as to whether he had a legal title to the land or not.

Mr Justice Mallia concluded that article 3 of the Land (Compulsory Eviction) Act, insofar as it did not provide for access to the courts, was in violation of the Camilleris' right to a fair hearing.

There was therefore no necessity to examine whether it also violated the Camilleris' rights to freedom from discrimination or to enjoyment of family life.

The court declared the article of the law to be null and void and ordered that the eviction order issued by the Commissioner of Lands be revoked.

It also ordered that a copy of the judgment be delivered to the Speaker of the House of Representatives.