Fabian Demicoli

Agreements are there to be kept

GRTU wishes to express its views of disappointment as well as its partial satisfaction following the delivery of the judgement today by the Court of Appeal in relation to the pending Pharmacy relocation case.

 

Unfortunately the Court of Appeal disagreed with the appellants, GRTU and Kamra Tal-Ispizjara ta' Malta, who claimed that they had a direct juridical interest allowing them in terms of law to file a third party appeal, thus the Court declared their Appeals null due to this lack of juridical interest.

Whilst one might disagree with such a conclusion, and the principles of natural justice cannot in all fairness be held in contempt in this way, the Court criticized both the Attorney General (AG) and the Superintendent of Public Health in the performance of their duties.

The Appeal filed by the Attorney General was also dismissed by the Court of Appeal because it failed to file a direct Appeal itself from the decision of the court of first instance, which had literally stepped into the shoes of the competent authority (the Superintendent of Public Health) and ordered a relocation to be granted, something which the Appeals Court said it should never have done. Instead the AG filed an incidental "piggyback" appeal only after the Kamra Tal-Ispizjara and the GRTU filed their Appeals. This militates in favour of the theory that the Superintendent of Public Health and the AG had no intention of appealing on their own steam hadn't the GRTU and Kamra Tal-Ispizjara filed their own "Appello del terzo".

The Court was very clear on this when it said that "the Authority in question, if it had so desired, could have appealed directly from the part of the sentence that it did not agree with, but for reasons best known to itself, it chose not to do so, and only did so when it based its appeal on the other parties' appeal.

The Court of Appeal emphasized that it did not agree with the court of first instance's stepping into the shoes of the competent authority even though the issue was raised in an Appeal which the Court itself declared null. However due to the severity of the legal fallacy contained in the decision of the Court of first instance, the Court of Appeal gave a detailed reflection regarding judicial review of administrative actions. In a nutshell it remarked that a Court can declare that a wrong decision was taken by a competent authority or that it was null, but it can never wear the competent authority's robes and take a decision in its stead.

The Attorney General and the Superintendent of Public Health's failure to appeal from a decision that effectively emasculates the same Superintendent's competent authority, raises serious doubts as to the motivation of their actions. This is evident in the court proceedings themselves, where it was rather obvious that the Authorities were opposing GRTU and the Kamra Tal-Ispizjara instead of doing their professional duty and defending the case instituted against them by the plaintiff. This action, or lack of it, by the AG and the Superintendent of Public Health, leaves much to be desired.

This means that the Superintendent of Public Health failed to deliver what he was entrusted by law to do. Instead he resorted to the courts for a decision that he should have taken himself, citing imaginary and unfounded reasons for not taking the decision he was duty bound to take. We feel that his decision, based on the provisions of the regulations, should have been to refuse outright this relocation.

It is also very interesting to note Para 27 of the Judgment which specifically spells out that a Court should not replace the Competent Authority. What emerges here is that all parties in this case had to resort to the Courts because the Superintendent of Public Health failed to grant a decision one way or the other. The Court emphasized the Superintendent of Public Health's lack in not granting or refusing the relocation. If he had refused it, or granted it, then the action filed in Court would have been one of judicial review asking the courts to declare such decision to be wrong or null at law and therefore to ask the CGMO to take a correct decision.

It is now clear that there are serious doubts as to the motivation of both the AG and the Superintendent of Public Health in this case, their apparent lack of judgment, and their poor defence of the regulations governing Pharmacies. This whole episode amply demonstrates that there is no gentlemanly behaviour when it comes to agreements signed by Government with the social partners. The Government, by means of the AG's intransigence, and using him as a proxy, tried to break the POYC / Pharmacy licence agreement.  It is now up to those who have taken this decision to shoulder the consequences.

No amount of hiding behind the skirts of the Court will convince us otherwise. The proof of the pudding is, indeed, in the eating.

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