The Court of Appeal wants the law changed in order for plaintiffs to sue directly the government or the State Advocate as its main legal counsel rather than sue different entities.
This was held by the Court of Appeal on 25 October 2023 in Jean Noel Ambeau Yapi et vs the Prime Minister et.
The appeal was limited to a decree issued by the First Hall of the Civil Courts following an application to call in the Permanent Secretary of the Ministry for the Interior. This is because it resulted that it was the Permanent Secretary who signed a charter contract of two vessels to keep migrants on them. This is in fact part of a constitutional lawsuit where a number of migrants are asking the court to declare that there was a breach of their fundamental human rights when they were forced to stay on board two vessels outside Maltese territorial waters.
The First Court in its decree held that the defendants of the case, the Prime Minister and the Minister for Interior and the State Advocate stated that the Plaintiffs should have called into suit the Permanent Secretary from the very beginning of the case.
They quoted Article 17(5) of the Public Administration Act, which states that the Permanent Secretary has juridical representation of the government. The First Court also held that the Plaintiff knew of the Permanent Secretary’s participation in the testimony of Edward Zammit Tabona. The Court held that this is irrelevant, because the Court had to investigate whether the Permanent Secretary’s presence was required from the beginning of the case. The Court quoted from the Public Administration Act and the Constitution. Article 181B of the Code of Organisation and Civil Procedure, which was added in 1995, does not make a distinction between the different types of actions and therefore, covers constitutional cases. It reads:
“(1) The judicial representation of the Government in judicial acts and actions shall vest in the head of the government department in whose charge the matter in dispute falls:
Provided that, without prejudice to the provisions of this article:
a) actions for the collection of amounts due to Government may in all cases be instituted by the Accountant General;
(b) actions involving questions relating to Government employment or to obligations to serve Government may in all cases be instituted by the Principal Permanent Secretary;
(c) actions relation to contracts of supplies or of works with Government may in all cases be instituted by the Director of Contracts.”
The First Court also quoted from a judgment by chief justice emeritus Joseph Said Pullicino as Ombudsman vs The Interior Ministry, decreed on 12 October 2015 wherein it was established the Permanent Secretary of a Ministry represents that Minister where the legal issue concerns the responsibilities of that ministry.
The Court pointed out that Article 17(7) of the Public Administration Act states that the Permanent Secretary is the head of department of the ministry in which he or she serves. The First Court concluded that the Permanent Secretary should have been a defendant from when the sworn application was presented and insisted that the Permanent Secretary is a procedurally necessary.
The Plaintiffs appealed from the decree arguing that it was only during the evidence, that they were aware that the Permanent Secretary signed the charter agreements. They also held in their appeal that the Court seemed to suggest that their application was incorrect.
The Court of Appeal held that the Permanent Secretary had an interest in the case, since the evidence showed that he had signed the charter agreement. All the Defendants have pleaded that are the not the correct defendants.
The Court of Appeal held that all this is a waste of time and suggested that the government should amend the law for persons to do a direct action against the government or the State Advocate. Irrespective of whether the Permanent Secretary signed the charter of the vessels, the vessels were chartered by the government. Article 175 of the Code of Organisation and Civil Procedure, allows the Court to change the parties of a case, as long as the substance of the case is not changed. The inclusion of the Permanent Secretary will not change the substance of the legal issues of the case.
As such the Court of Appeal revoked the decree and allowed the Permanent Secretary to be a party to the lawsuit.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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