The Administrative Review Tribunal turned down a plea from the Ministry of Education that judicial acts should be filed before actions are filed with the Tribunal. This was decided on 6 July, 2017 by Magistrate Charmaine Galea, Dr David Fabri and Dr Antoine Naudi in Vincent Carabott -v- Ministry of Education and the Teachers Professional Council.
Vincent Carabott had filed an application with the Tribunal stating that in February 2017 his teacher’s warrant was being withdrawn according to Article 30(1)(a) of the Education Act, following a Court of Criminal Appeal judgement delivered on 27 October 2016 where he was found guilty of threatening Ms Justice Abigail Lofaro. He was given a suspended sentence of 12 months and a fine. Mr Carabott challenged this decision and asked the Tribunal to reverse it.
The defendants filed a statement of defence and amongst other pleas, registered a preliminary plea that this appeal could not proceed because no judicial act was filed in terms of Article 460 of the Code of Organisation and Civil Procedure. The Tribunal held that it would decide on this plea.
Article 460 reads:
“(1) Subject to the provisions of sub-article (2), no judicial act commencing any proceedings may be filed, and no proceedings may be taken or instituted, and no warrant may be demanded, against the Government, or against any authority established by the Constitution, other than the Electoral Commission, or against any person holding a public office in his official capacity, except after the expiration of ten days from the service against the Government or such authority or person as aforesaid, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated.
(2) The provisions of sub-article (1) shall not apply –
(a) to actions for redress under article 46 of the
Constitution; or
(b) to warrants of prohibitory injunction; or
(c) to actions for the correction of acts of civil status; or
(d) to actions to be heard with urgency;
(e) to referrals of disputes to arbitration,
and where in accordance with the provisions of any law a particular procedure including a time-limit or other term is to be observed, the provisions of sub-article (1) shall not apply and the procedure aforesaid, including any time-limit or other term, shall apply and be observed in lieu thereof.
(3) Causes against the Government in respect of which there is in force a warrant of prohibitory injunction shall be heard by the court with urgency in preference to other causes.”
The Tribunal quoted from a previous judgment, Emanuel Bugeja -v- Mary Rose Bugeja, of 26 June, 2003. The judgement explained that this article is a procedural privilege given to the government, when it is sued and therefore, it is a public order rule. If a judicial act is not notified to the government before an action is instituted that action is then declared null and void. In the note of submissions, the defendants pointed out that there are conflicting judgments. In Alfred Buttigieg -v- Bord tal-Professjoni tal-Inginerija it was held that there is no need of a judicial act, while another judgement Mari Paule Wagner -v- Ministeru ghall-Enegerija u l-Konservazzjon ta’ l-ilma had turned down the ministry’s plea that a judicial act was not filed before the appeal was lodged. The Tribunal held that this was in fact not a contradiction, since in the second case, the judicial act was filed, then the plea was withdrawn.
The Tribunal pointed out that the law insists that the judicial acts should be filed in the Court Registry, but acts filed in Tribunal cases are filed before a separate Registrar.
The Court also pointed our that appeals under the Education Act have to be filed 21 days from the minister’s notice. Article 15 of the Administrative Tribunal Act indicates which articles of the Code of Organisation and Civil Procedure apply. Therefore, indicating that where the legislator intended the Tribunal to adopt the civil procedure it stipulated very clearly.
The Tribunal then moved to turn down the minister’s plea.
Dr Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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