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The demise of 469A COCP?

In Johann Said v. Commissioner of Police (Appeal, 18 December 2012) the competence of the Administrative Review Tribunal (ART) came under the Court of Appeal’s scrutiny. Johann Said sought a licence from the Police, for a circus in Floriana. This request was refused, and Said appealed to the ART from this refusal. The ART upheld Said’s appeal, and the Commissioner of Police took the matter to the Court of Appeal.

At Court of Appeal level, appellant submitted that the ART lacked jurisdiction over the issue, owing to the existence of the Police Licences Appeals Tribunal under SL.128.02 (Licences Appeals Procedures regulations). This appeals tribunal however, is merely advisory, its role being restricted to giving advice to the Commissioner of Police, on whether or not the licence should be granted. Part of the process of considering applications for police licences, is seeking and obtaining the advice of the Police Licence Appeals Tribunal. It is not an avenue of appeal from a refusal of the Commissioner of Police. For this reason, according to the Court of Appeal, Johann Said acted correctly when he appealed to the ART, from the Commissioner of Police’s refusal.

Articles 5 and 7 of the Administrative Justice Act (Laws of Malta, Chapter 490) read as follows:

‘5 (1) There shall be set up...an independent and impartial tribunal, to be known as the Administrative Review Tribunal, for the purpose of reviewing administrative acts referred to it in accordance with this Act or any other law, and for the purpose of exercising any other jurisdiction conferred on the Administrative Review Tribunal by or under this or any other law...

(2) The Administrative Review Tribunal shall have jurisdiction to review administrative acts.

(---)

7. The Administrative Review Tribunal shall be competent to review administrative acts of the public administration on points of law and points of fact. It shall also be competent to decide disputes referred to it unless any court or other administrative tribunal is already seized with such dispute.’

The Court of Appeal confirmed that one has recourse to the ART, from any administrative act, except where a specific right of appeal exists under any other law. Thus, for example, if one is not happy with the outcome of an application for development planning, that person cannot take the matter to the ART, because under Chapter 504 of the Laws of Malta, that person enjoys a specific right of appeal to the Environment & Planning Review Tribunal.

Chapter 490 of the Laws of Malta was the brainchild of the Hon. Dr Carmelo Mifsud Bonnici, who at the time was Parliamentary Secretary within the Ministry for Justice and Home Affairs. The actual law was drafted by Prof. Kevin Aquilina, and discussed by a panel of persons over a number of meetings. I had the good fortune of being included amongst this panel of persons and therefore witnessed the whole process. The idea behind Chapter 490 was to gradually eliminate the plethora of appeals tribunals which exist under different laws. The law maker wanted a move away from the Anglo Saxon system of having ad hoc appeals to scores of different tribunals, and in certain cases to the Minister himself. Ministers do not want or need such powers of review. Also, the existence of so many appeals bodies created problems. Firstly, they are expensive, because the members need to be paid, apart from the administrative set up each requires, depending on their work load. Secondly, there was the problem of whether these entities were in actual fact constituted at all. In certain scenarios, they were not constituted because appeals therefrom were so few and far between. It was simply not worth constituting an appeals body when there were practically no appeals to be heard. Problems of course arose when a case or a small number of cases did come along, because there would be no tribunal to hear them and decide them. Also, having a ‘one stop shop’, instead of a vast range of appeals bodies with their own rules and procedures, is easier on the man in the street. There was also the problem of not all appeals bodies respecting the rules of natural justice, hence the inclusion of article 3 in Chapter 490. The message of the law maker was that, while the ad hoc appeals bodies continue to exist, they must abide by certain minimum standards, in Cap 490 referred to as the principles of  good administrative behaviour.

Two questions arise at this stage: the first concerns article 25(2) of Cap. 490, while the second concerns article 469A COCP.

Article 25(2) reads as follows:

‘The Administrative Review Tribunal shall henceforth have jurisdiction in lieu of the persons, bodies and administrative tribunals mentioned in the laws listed in the Third Schedule prior to the entry into force of this article’.

Said Schedule 3 is no longer included in Cap. 490 as reproduced on the official http://justiceservices.gov.mt  website. Yet it exists, and this schedule as originally enacted can be viewed via the Department of Information website http://justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=18429&l=1 . In time, it became longer, as the ART’s jurisdiction grew. The law maker back in 2007 started to amend various laws, providing specific appeals, within stipulated time limits, to the ART. Thus, for example, according to Schedule 3, article 6 of the Spirits Ordinance (Cap. 41 of the Laws of Malta) was amended thus granting an appeal from a refusal of the Comptroller of Customs, to the ART, within 14 days. Thus the appeal to the Minister was eliminated from Cap. 41.

The law maker had in mind to start off slowly, eliminating the smaller appeals entities, with the lighter workloads. There was concern that overloading the ART would amount to an overburden. It was felt that it would be better to set up the tribunal and give it time to establish itself, by giving it a light workload. The idea was to gradually lengthen Schedule 3 of Cap 490, thus adding to the ART’s competence, eliminating more of the ad hoc appeals entities. This procedure took off, and has reached a stage whereby at time of writing of this article (30 December 2012), an appeal to the ART is to be found in no less than sixty-four laws and regulations. In addition, the ART has acquired a general right of review of administrative acts under articles 5 and 7 of Cap. 490, as in Said v. Commissioner of Police, although I do not think this was intended at all by the legislator. Indeed, in my opinion, I do not think the ART was endowed with such powers of review. Article 7 of Cap. 490, read in isolation, implies that there is a general right of appeal to the ART from administrative acts. Article 5 on the other hand states that the jurisdiction must be a reference ‘in accordance with this Act or any other law’. The reference in ‘this Act’ emerges from the seemingly overlooked article 25 and the third schedule which regrettably is no longer reproduced in the law, but which lists the rights of appeal to the ART from the different laws, at time of writing sixty-four in total. The sixty-four laws are the ‘other law(s)’ listed in article 5 of Cap 490.

Had the ART been endowed with the original jurisdiction which it now enjoys, the law maker would have deleted article 469A COCP and incorporated it into the new law. It does not make sense to have a tribunal with general powers of review of administrative acts, existing in parallel with 469A COCP. Article 469A COCP was allowed to co-exist with Cap 490 precisely because the latter was not intended as a substitute. The ART was only intended to substitute as many as possible of the ad hoc tribunals and appeals facilities existing under different laws.

On the other hand, the manner in which the ART has evolved is welcome. The earlier mentioned Johann Said case could have easily been a 469A COCP action, but the fact that the applicant resorted to the ART resulted in faster, cheaper proceedings. Both of these advantages over a 469A COCP action are welcome. The real issue is when and whether to resort to 469A COCP at all, in spite of the fact that under the latter article ‘administrative acts’ include ‘...the issuing by any public authority of any ... licence...’. Had Johann Said taken the longer, more costly route, I very much doubt whether the Courts would have rejected the action on the basis of 469A (4):

‘The provisions of this article shall not apply where the mode of contestation or of obtaining redress, with respect to any particular administrative act ... is provided for in any other law.’

Technically however, if Johann Said had resorted to the First Hall of the Civil Court, that is what should have happened: with the ART as a remedy, any action under 469A is not called for. Indeed, the manner in which the ART has evolved may call for the use of 469A (4) in many instances. Which in turn would result in 469A becoming a dead letter.

This is not to say that the Courts of Justice have lost their powers of review of administrative action. This power of review is as old as the Courts themselves. On the other hand, I think that the time may have come to consider amending Cap. 490 to specifically incorporate the action for judicial review.

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