The Blue Sisters Saga: A legal and factual analysis
by Tonio Borg
published by Kite Group
The author, Tonio Borg, is a lecturer in public law at the University of Malta, a former European commissioner, former deputy prime minister and cabinet minister. He is a born raconteur who can lead a listener or reader through complicated issues while retaining a fresh approach akin to a story.
This book is a must for any member of the legal profession. It is, however, also attractive to many others who would not mind following an exciting story intermingled with a gold mine of legal niceties.
Borg glides through the law with ease, cutting through brambles and explaining without unnecessary verbal excursions. The story is a sad one. I remember it well, but reading the book made me recall and understand better what had happened.
The Blue Sisters saga gave rise to two eviction cases, two proceedings for contempt of court, a constitutional human rights case that was signed by no less than 100 lawyers, the suspension of judges’ duties for five weeks by an executive order, the resignation of two of the most senior judges in the Constitutional Court, and the issue of a legal notice that introduced retroactively a new tariff of 1,000 Maltese Liri (equivalent to €2,330) to be paid by every lawyer in excess of three who signed any judicial act.
Throughout the book, Borg remains faithful to his goal expressed in the foreword: “The aim of this book covers not only the legal aspects of the saga but also the factual and political side of things.”
He dutifully acknowledges that the story he writes is also proof of “the courage and persistence of the counsel to the Blue Sisters – Giovanni Bonello.” This book is indeed another proof, if there was ever a need, of Bonello’s grit, courage, knowledge, and passionate vocation, making this gentleman a larger-than-life beacon in times of darkness.
The author also had a small finger in the pie when, as a young lawyer, he was asked by Bonello to research a particular aspect of the test of reasonableness in English Common Law. He relates how he rushed to the university library to research the matter and recalls his excitement when he came across valid material that would help in the issue.
A short review of this book can never attempt to go through the legal arguments, decisions, niceties and doctrines. I leave that to the reader, who, I have no doubt, will glide through this book with ease.
The Blue Sisters was the popular name of the Little Company of Mary, which was a congregation of Catholic nuns. They ran Malta’s first private hospital, the Zammit-Clapp Hospital in St Julian’s.
They started their mission in 1911 when Emilia Zammit, wife of Henry Clapp, donated to the government of Malta a hospital that she had built at her own expense.
The deed of donation included an obligation of the government of Malta to allow these nuns to manage the hospital. If they failed to do so or decided to leave the island, the property would revert to the government.
The aim of this book covers not only the legal aspects of the saga but also the factual and political side of things
In 1980, the government introduced the need for a licence to run a hospital. Surprisingly, a condition was introduced in the Blue Sisters Hospital licence that at least one-half of the hospital beds were to be made available to the National Health Scheme. The sisters opposed it. Apart from the fact that it would have been impossible to resolve financially, this would have negatively affected their original contractual obligation to manage the entire hospital.
Hell was let loose. The saga started. On June 17, 1980, the government filed a court action, claiming that the hospital was to revert to the government because the sisters had refused to acquire the required permit and were therefore unable to operate the hospital.
It was a hot, boiling, erupting issue that required stamina by members of the judiciary to remain in line with the law and legal doctrine.
Mr Justice Joseph Herrera delivered a landmark decision favouring the Blue Sisters. The judgment discussed the concept of reasonableness and the claim by public authorities of unfettered discretion in great depth.
“It was, indeed, a ground-breaking judgement, valiant and audacious in the face of executive arbitrariness, a judgement which was met with even more arrogance by the government authorities.”
Alas, the Court of Appeal failed to reach great heights. Unexpectedly, the president of the court himself suggested to the parties a section of the law on usufruct which allowed a usufruct in favour of a legal – as opposed to a physical person – to be applicable only for a maximum period of 30 years. It was another way of saying that, in any case, the Blue Sisters no longer enjoyed title to the hospital. This had not been referred to by either party.
The counsel for the government did not agree with such a strong direction from the court and insisted on continuing the case as originally filed. But the government filed a new action the following day along the lines suggested by the president of the court himself.
A very short letter signed by Frank Portelli appeared in The Sunday Times of Malta on October 26, 1980. It merely stated that once the chief justice had already suggested in open court the legal course government should take against the Blue Sisters, he should not sit in judgement over the appeal case. The volcano erupted! Contempt of court! Another series of legal wrangles followed.
The front page of the Times of Malta of December 20, 1980, reporting on the Blue Sisters being escorted by police to the airport in Luqa after they were ordered by the government to leave Malta.I remember considering whether usufruct really applied to the issue as the president of the court had suggested. I was then of the firm opinion that it did not apply. I felt that the contract was a sui generis obligation, not a usufruct. Reading this book, I now find solace that several more enlightened minds were also of that belief.
On December 18, 1980, after a series of legal battles, all narrated and dealt with in this book, the nuns and personnel of foreign nationality who worked at the hospital were ordered by the government to leave Malta because their work permit was not renewed.
On the following day, the Blue Sisters were escorted in a police minibus to the airport. They were met there by several people who supported the Blue Sisters’ mission which they had carried out with much love for many years in Malta.
It is a sad story.
Even sadder is that it is a true one.