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Judge-made law vs. written law ... which wins at the end of the day?

Keywords: Judicial Review - Art. 469A COCP - Cap. 490 Laws of Malta - jurisdiction of the Administrative Review Tribunal 


In my earlier blog 'The Demise of 469A COCP?' I discussed Said v. Commissioner of Police (Court of Appeal, 18 December 2012) and the manner in which the Administrative Review Tribunal (ART), from a tribunal intended by the lawmaker to take over the function of those ad hoc appeals bodies listed in Schedule 3 of the Administrative Justice Act (Laws of Malta, Cap. 490), was deemed by the Court of Appeal to possess general powers of review over administrative acts. Although I welcomed this interesting evolution in the ART's function, I gave my reasons for believing that this newly assumed role is neither in accordance with the intentions of the lawmaker, nor in accordance with the written law, that is, with the Administrative Justice Act (Cap. 490 of the Laws of Malta) as it stands to date.


Some weeks after posting this article, my attention was drawn to Raymond Abela v. Awtorita' tat-Trasport f'Malta (First Hall of the Civil Court, 23 February 2012 per Mr Justice Joseph R Micallef). This action (under 469A COCP) was brought by a person whose licence to drive a motorbike was confiscated by the Police and passed on to the Malta Transport Authority (now Transport Malta), on the basis that it had been obtained in an irregular manner. Transport Malta cited 469A(4), because the plaintiff had a remedy under the Authority for Transport in Malta Act, Cap. 499, article 40. These articles read as follows:


'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 before a court or tribunal is provided for in any other law.'


'Cap. 499 art 40 (1) The Administrative Review Tribunal established by article 5 of the Administrative Justice Act shall be competent to hear and determine:

(a) appeals made by any person aggrieved by any decision of the Authority not to grant or renew, or to suspend or to revoke an authorisation, or a licence or a permit, or to impose conditions, limitations or exclusions therein or therefore; and

(b) appeals made by any person aggrieved by an administrative or any other penalty imposed on that person by the Authority:

Provided that, unless otherwise prescribed by law, an appeal lodged in terms of this subarticle to the Administrative Review Tribunal shall be filed within twenty days from the receipt of the Authority’s decision.

(2) Any proceedings which immediately before the coming into force of this article are pending before the Transport Appeals Board

established under the Malta Transport Authority Act shall, with effect from the 31st March, 2010, be assigned to the Administrative

Review Tribunal mentioned in this article....'


Unlike in Said v. Commissioner of Police, in the Abela judgement the ART actually has jurisdiction over the matter, because according to Schedule 3 of the Administrative Justice Act, the ART replaced the Transport Appeals Board. The Court commented on this point, stating categorically that the ART's jurisdiction stemmed from Schedule 3 and was limited to those entities listed in the same Schedule 3:


'Izda huwa fatt li t-Tribunal imsemmi huwa kompetenti fir-rigward ta' dawk l-awtoritajiet pubblici jew dawk il-korpi biss li l-Att kostitutiv tieghu espressament jaghnih bihom fit-Tielet Skeda tieghu, u ma ghandux is-setgha li jistharreg l-ghamil ta' awtoritajiet ohrajn...'


(Translation: 'It is a fact that the named Tribunal is competent with regard only to those public authorities and bodies which the constitutive act expressly lists in its Third Schedule, and it does not have jurisdiction to review the acts of other authorities...')


In the Abela judgement, the Court went on to uphold Transport Malta's plea that this action should be dismissed on the basis of 469A(4). Plaintiff's action was indeed dismissed:


'Tilqa' t-tieni eccezzjoni preliminari tal-Awtorita' Mharrka u ssib li, ghall-finijiet tal-artikolu 469A(4) tal-Kapitolu 12 tal-Ligijiet ta' Malta, din il-Qorti m'ghandhiex tisma' u taqta' l-kawza migjuba quddiemha billi l-attur kellu rimedju iehor taht ligi ohra u li l-istess attur naqas milli jinqeda bih;'


Translation: ''Upholds the second preliminary exception raised by the defending Authority and rules that, for the the purposes of article 469A(4) of Chapter 12 of the Laws of Malta, this Court should not consider and decide the case brought before it because the plaintiff enjoyed a remedy before another law and failed to avail himself of that remedy.'


In the process, the plaintiff made some interesting submissions in its attempt to ward off Transport Malta's preliminary defence, such as that the action before the ART, unlike an action under 469A COCP, did not cater for the awarding of damages. The Court held that seeking damages was secondary to review of administrative action, and that there is nothing in the Administrative Justice Act (Laws of Malta, Cap. 490) to exclude the ART from awarding damages. However, the main point, for the purposes of this article, is that Mr Justice Micallef's judgement confirms my observations in 'The Demise of 469A COCP?' and contrast with the position taken some ten months later by the Court of Appeal in Johann Said.


The question at this stage is, where do we go from here? The Abela judgement is res judicata, while Said was decided by the Court of Appeal presided by three Judges. Said was also decided after Abela,  so it carries yet more weight insofar as judgements are concerned. On the other hand, Abela is in line with the the Administrative Justice Act, while Johann Said is not. Abela takes into consideration Schedule 3, while Said does not. Schedule 3 exists, and will continue to exist until the lawmaker decides to repeal it. If Schedule 3 and all references to it are repealed, then we can safely follow the Abela route and institute cases for judicial review before the ART, irrespective of 469A COCP. Until Schedule 3 is repealed, I would not like the Johann Said position to be followed in future. I would take the 469A COCP route unless the entity I am instituting proceedings against is listed in Schedule 3 of the Administrative Justice Act. On the other hand, if I happen to be defending a public entity before the ART, I will claim that the ART lacks jurisdiction over the matter if the entity is not listed in Schedule 3. With respect to the Court of Appeal, in the absence of a lacuna, given the clarity of the Administrative Justice Act, and also in view of there being no doubt (so far) as to the constitutionality of the Administrative Justice Act, the written law should be observed even by the Courts of Justice.



Acknowledgements: Special thanks to Dr Robert Abela for sending me a copy of the Raymond Abela judgement.

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