If an entity is appointed by a minister, then it forms part of the government and as a consequence before it is sued, a judicial letter must be filed. This was held by Mr Justice Grazio Mercieca in a judgement delivered on 28th January 2019 in the names of Paul Gauci f’ismu propju u għan-nom Tas-soċjeta’ E & G Properties Limited vs Sovrintendent tal-Patrimonju Kulturali, f’isem is-Sovrintendenza tal-Patrimonju Kulturali.
In an action presented by the plaintiffs, the defendants pleaded that it was null, since a judicial letter was not filed in terms of Article 181B of the Code of Organisations and Civil Procedure before the case was instituted.
This Article dictates that all actions against the Government must be preceded by a judicial act and must be notified to the head of the government.
The plaintiff submitted that the Superintendence of Cultural Heritage was set up by the Cultural Heritage Act, which has a separate judicial personality and can sue and be sued. They submitted that the Superintendence is not a government department. The Attorney General argued on behalf of the defendants that the Government is one although it has a number of entities including the Superintendence of Cultural Heritage. The term used in Article 181B is “government department” and it includes such entities.
The Court held that the Code of Organisations and Civil Procedure does not define the terms “Government” and “department of government”.
The Interpretation Act just defines the term “government” as the Government of Malta. The Constitution lists as the institutions of the country, the Executive, where the Cabinet controls the government of Malta.
The Public Administration Act says that the public administration is the government of Malta including the ministers and their department, agencies, government entities, commissions and boards. However, Article 2(2) of the Public Administration Act excludes Magistrates, judges, Attorney General, Auditor General, Speaker, Ombudsman and others from the meaning of government.
The Constitution sets up entities which are not part of the government. These include the Broadcasting Authority. The Court quoted from the Public Administration Act which divides departments into four categories. The first include the Department of Internal Investigations and Audit, the Electoral Office, the Public Service Commission and the Office of the President.
The second category includes a large number of departments such as the Fishing Department, Department of Social Security and Contracts Department.
Government entities include Management Efficiency Unit, MEUSAC, and Attorney General’s Office. With regard to agencies Article 181B of the Code of Organisation and Civil Procedure applies.
The employees of all agencies are to follow directives of the Principal Permanent Secretary and the Minister. The Public Administration Act defines a government entity as an organisation not being a department or agency, but falls under the control of the government.
Article 7 of the Cultural Heritage Act states that the Superintendence of Cultural Heritage is to act on orders given by the Minister with regard to policies and is to inform the Minister on its activities.
The Court indicated that although the Superintendence of Cultural Heritage has a separate judicial personality, it still has the characteristics of a government agency and forms part of the government structures.
For this reason the Court closed the case by rejecting the claim.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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