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The State’s Duty to Care and the Administrative Justice Act, 2007

The Administrative Justice Act, 2007 is a relevant law from the perspective of the State’s duty to care and compliments other legislation pertinent to this subject matter such as the Ombudsman Act. The former enactment is highly relevant to the State’s duty to care because it contains in article 3 a mandatory provision to the effect that ‘administrative tribunals shall respect and apply the principles of good administrative behaviour’. These principles are then laid out in the same provision. Before listing these principles of good administrative behaviour, it must be pointed out that these principles apply only to administrative tribunals and do not extend, at least as the law is drafted, to the public administration. Indeed, it is a pity that the public administration does not have its own principles of good administrative behaviour enshrined in a law upon which its services can be gauged.

 

The eight principles of good administrative behaviour which apply to administrative tribunals are the following:

(1) to respect the principles of natural justice, that is, the nemo judex in causa sua and the audi et alteram partem

(2) to arrive at a decision in a reasonable time

(3) to ensure equality of arms between the parties

(4) to grant access to the relevant documentation held by the public administration

(5) to conduct proceedings in an adversarial way

(6) to examine factual and legal issues

(7) to hold proceedings in public

(8) to give reasons for their decisions.

 

These principles will be extended to 80 different administrative tribunals operating in Malta listed in the First Schedule to the Administrative Justice Act which have to comply therewith. In terms of the Application of the Principles of Good Administrative Behaviour to Administrative Tribunals Regulations, 2008 (Legal Notice 346 of 2008), the said principles have been already made applicable to 14 out of 80 administrative tribunals. In this way, the citizen is ensured that s/he gets a fair trial and procedural equality is guaranteed. One must bear in mind that the public administration is by far well equipped than an individual as it has more weapons in its armoury to fight out a case. So the Legislator has tried to balance out the powers of the public administration, on the one hand, with the vulnerabilities of the citizen, on the other, by introducing, to the extent possible, a level playing field for all parties to a case.

Another novel feature in the Administrative Justice Act is that it has established an Administrative Review Tribunal which will, as time goes by, absorb the functions of the extant administrative tribunals into the Administrative Review Tribunal. Eventually the latter Tribunal may well be transformed into a court of justice which specialises in administrative law proceedings. However, at the moment, we have not yet reached this stage even though the groundwork has been set. In fact, the current position is that the Administrative Justice Tribunal is still in its inception and that it has taken over functions performed by 10 administrative persons or bodies exercising a quasi-judicial function. Five panels of the Administrative Review Tribunal have already been established. These are:- the Health Panel; the Agriculture Panel; the Products and Services Panel; the Transport Panel; and the General Jurisdiction Panel. As time goes by these panels will continue to increase to cover the whole gamut of administrative law proceedings.

What one augurs is that:

(a)    all the administrative tribunals are replaced as fast as possible by one sole tribunal – the Administrative Review Tribunal – as this will bring about uniformity and consistency in the decision making process and in procedures. This streamlining will undoubtedly end up being beneficial to the parties appearing before the said Tribunal (public administration and individuals) as well as to their respective legal consultants who will benefit from uniform time limits to comply with, standard forms to fill in, comparable fees to pay and similar procedures to follow.

(b)    the principles of good administrative behaviour are extended to the public administration, that is, both to the public service, the public sector and, in those cases where essential services are run by the private sector, to the private sector as well.

(c)    the courts of justice, when reviewing the operation of the administrative tribunals in question and the Administrative Review Tribunal, ensure that these tribunals are complying and applying the principles of good administrative behaviour in their procedures and workings.


By applying the principles of good administrative behaviour across the board to administrative tribunals, the public administration and relevant private sector entities, it will be ensured that individuals are given a better, transparent, accountable and holistic service.

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