This evening, I engaged in a discussion on the Judicial Review Bill, 2023, following an invitation from the law students organization GHSL. This bill, co-authored by Professor Tonio Borg and GHSL, has been handed over to the Nationalist Opposition for parliamentary deliberation.

First of all, I want to express my gratitude to GHSL for taking the initiative to collaborate with the opposition, underscoring the significance of such partnerships between student organizations and political entities in fostering democracy. It is crucial to respect students’ choices in aligning with political parties.

Regarding the very essence of the Bill, it has highlighted the ever-evolving nature of administrative law in Malta, underscoring the imperative to sustain its ongoing vibrancy. This, in and of itself, constitutes a noteworthy positive aspect.

Nonetheless, there are certain issues that require clarification.

  •  I find the inclusion of a pronouncement from a tribunal authority within the definition of ‘judicial decision’ to be logically inconsistent. It seems to be a non sequitur from the outset. Additionally, I am not in agreement with the definition of ‘judicial authority’ as encompassing any tribunal established by law. By definition, tribunals typically fall under the purview of the executive, and this inclusion raises concerns about the clarity and appropriateness of the terminology used in the legislation.
  • The notion of including ‘body corporates which perform a public function’ raises questions. Are we implying that, say, private schools, which provide educational services to the public, would fall within this new scope? The ambiguity in this aspect requires clarification to ensure a precise and appropriate delineation of entities affected by the proposed provision.
  • The bill does reinforces the concept that subsidiary legislation can be challenged. Indeed, the mention of ‘review of legislative act’ without the requirement to prove juridical interest is found in Section 3. Given the current situation, there is no obstacle to thoroughly examine and challenge nearly all subsidiary legislation based on its inconsistency with the Primary Act. This can be done under Article 116 of the Constitution, or alternatively, Article 32(2) of Chapter 12 serves as an accessible avenue. Indeed, in the case of Liquigas Malta Ltd vs Ir-Regolatur għas-Servizzi tal-Enerġija u l-Ilma, the Court of Appeal (inferior jurisdiction) held (in March 2022):

“22. Din il-Qorti pero` ma taqbilx illi liġi sussidjarja tista’ tiġi sindikata biss mill-Qorti Kostituzzjonali taħt l-Artikolu 116 tal-Kostituzzjoni u li l-eżistenza ta’ dan l-artikolu tal-liġi tfisser li m’hemm l-ebda mod ieħor kif tista’ tiġi mpunjata liġi sussidjarja. Fil-fehma ta’ din il-Qorti n-nuqqas ta’ aderenza mal-liġi ordinarja, hjia sindikabbli wkoll mill-Qrati ordinarji. Il-Qorti tqis li lment bħal dak imressaq mis-soċjeta` attriċi jista’ jiġi mistħarreġ mill-Qrati ordinarji a bażi tal-Artikolu 32(2) tal-Kapitolu 12 tal-Liġijiet ta’ Malta, li jvesti fihom poteri residwali fejn il-liġi ma tipprovdix mezz idoneju u effettiv ta’ rimedju…”

(Translated to: ‘This court, however, does not agree that subsidiary legislation can only be challenged before the Constitutional Court under Article 116 of the Constitution, and the existence of this legal provision means that there is no other way in which subsidiary legislation can be contested. In the understanding of this court, the lack of conformity with ordinary law renders it justiciable before ordinary courts as well. The court considers that what is perceived by society as oppressive can be redressed by ordinary courts based on Article 32(2) of Chapter 12 of the Laws of Malta, which vests residual powers where the law does not provide an adequate and effective remedy’.)

The question arises: Why do we need these provisions in another ordinary piece of legislation? 

  • I also observe the removal of ‘acts in violation of the constitution’ from the grounds of review. Is there a specific reason for this change, aside from what was outlined in the Christopher Hall judgment?
  • There is a proviso emphasizing that the court may not substitute its discretion for that of the competent authority, and while that is, to me, the only way to respect the democratic will, it prompts a consideration of how this aligns with the perspective of the Venice Commission in the recent Rule of Law Report. The Commission took exception with the fact that decisions of tribunals are only subject to judicial review on points of law, not on points of fact. (Brussels, 5.7.2023  SWD(2023) 818 final  COMMISSION STAFF WORKING DOCUMENT 2023 Rule of Law Report      Country Chapter on the rule of law situation in Malta Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2023 Rule of Law Report)
  •  Once again, damages are limited to cases where an administrative act is conducted in an unreasonable manner or in bad faith (Section 8 of the proposed bill). If we find these restrictions acceptable, it is advisable to clarify whether we are referring to extreme cases akin to the Wednesbury standard or any instance of illogicality.
  • Section 8 suggests extending the current six-month timeframe in Article 469A to one year. This extension does not include the suspension of the period when the ombudsman is involved, and the one-year period begins upon the ombudsman’s pronouncement. Beyond the need to amend the Ombudsman Act to align with this change, it’s evident that this extension will not apply for administrative acts subject to ad hoc tribunals (like the EPRT Act, Chapter 551) and the Administrative Review Tribunal, which typically allow only 20 or 30 days to appeal executive decisions and do not pause the time period if the ombudsman is consulted. The widening disparity between administrative acts falling under Article 469A and those that are not prompts questions about the logic of these differing timelines.
  • On a separate note, I have some questions about the provision concerning challenges to decisions by the Attorney General either not to prosecute in accordance with the powers granted by any law or not to permit the inspection or issuance of copies of a procès-verbal, depositions, or related documents as per the proviso to Article 518 of the Criminal Code. It is being proposed to extend the action of challenge  to “any person who proves sufficient interest, not necessarily juridical,” within two months from the time such a person becomes aware or could have become aware of the decision. From the definition glossary provided in the bill, it appears that the occurrence of sufficient interest is nearly indispensable when it stems from an organization with a public interest agenda.

With that being said, it is evident that a more in-depth examination is necessary to understand the potential implications of these amendments on the integrity of criminal procedures, as concerns may arise about its impact on the overall fairness and efficiency of criminal processes. An assessment is, therefore, crucial to determine whether this extension could introduce delays or challenges that might affect the prompt and just resolution of criminal matters. Careful consideration, I would say, is needed for the potential effects on evidence preservation, witness testimony, and other critical elements essential to the integrity of criminal proceedings.