SULTANA v. MALTA
Inadmissible
Nicolas Bratza
The applicant, Mr Victor Sultana, is a Maltese national who was born in Xaghra, Gozo, and lives in Malta. He was represented before the Court by Mr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a surgeon employed by the Government. An official advertisement for a post of consultant surgeon with an interest in vascular surgery in a public hospital was published in the Government Gazette of 19 January 1999. The applicant applied for the post, considering that he satisfied all the conditions laid down in the advertisement. The Government qualified this statement to read that the applicant satisfied the conditions necessary to apply for the post of consultant surgeon. According to paragraph 6 (c) of the call for applications, applicants were required to have the following qualifications: “be in possession of a recognised higher postgraduate qualification in surgery (FRCS or equivalent qualification recognised as such in the European Union or the USA) and at least six years post registration experience in vascular surgery of which at least three years must be at Senior Registrar or Higher Surgical Trainee equivalent level.” The applicant alleged that he was the only person eligible for the post but that other persons, not having the required qualifications, were interviewed. Eventually X, another surgeon, was appointed by the Prime Minister on the recommendations of the Public Service Commission (“PSC”). Under Maltese law, this body is immune from legal proceedings. The Government contested the allegation that the other persons interviewed for the post did not possess the required qualifications. According to the Government, the applicant argued that the other candidates did not possess the experience required, since the period to be taken into consideration should have been calculated from the date when the candidates had officially been appointed to the post of Senior Registrar and not from a prior date when they had de facto started performing such duties. The Government explained that there were three applicants for the said post. After having interviewed all the applicants, the Selection Board (appointed by the PSC), made up of four senior members of the public medical service and a senior official from the management and personnel office, found that all the candidates interviewed possessed both the academic qualifications and the experience required. However, they found the applicant to be unsuitable for the post whilst finding the other two candidates suitable. The PSC recommended the candidate with the highest mark as decided by the Selection Board. On 15 July 1999, two days after the said interview, the applicant complained about the decision and the composition of the Selection Board to the PSC Chairman. On 3 January 2000 the PSC informed the applicant that on examining the selection process, the eligibility of the applicants as determined by the Selection Board had been correct and that none of his other allegations had been well-founded. On 13 January 2000 the applicant reiterated his position to the PSC. On 3 March 2000 the PSC informed the applicant that given that the selection process had been completed and the appointment made, representations to the PSC had to be made in accordance with the provisions of the Estacode (“code of management of the public service”) which provided for the right to file a petition with the Prime Minister (“PM”) in respect of a selection process. On 14 March 2000 the applicant petitioned the PM. This petition was suspended since in the meantime the applicant had lodged judicial proceedings and proceedings before the Permanent Commission against Corruption, which had the power to investigate allegations of corruption. On 29 May 2000 the applicant lodged a judicial protest against the PM and the Chairman of the PSC. On 9 June 2000 the applicant requested the Civil Court (First Hall) to issue an injunction against the above authorities to restrain them from proceeding with the appointment of the selected candidate. On 13 June 2000 the Civil Court refused this request. On 28 June 2000 the applicant filed a claim with the Civil Court (First Hall) against the PM. He alleged a violation of Article 110 of the Constitution of Malta by reason of the fact that in selecting the candidates for the post of consultant surgeon, the PM had failed to adhere to the notice announcing the call for applications. The applicant furthermore considered that, in setting up the board for the interviews, there had been a breach of the Estacode rules, which regulated the civil service and the manner in which applicants to it were recruited. The applicant requested that the appointment of X be declared null and void and that his own application be considered the only one valid for the post. The PM objected, stating that the applicant’s action was incompatible with Article 115 of the Constitution, since the action was intended to inquire into the interpretation of a call for applications made by the PSC, whereas the conduct of the PSC in such matters could not be questioned. In a preliminary judgment of 14 February 2002 the Civil Court dismissed the PM’s objection and ordered that the case be continued. It observed that the PSC was not a defendant in the case and that it was too early to come to the conclusion that the applicant’s claims might amount to an investigation into the actions of the PSC. The applicant should know that if his action pursued such a line it would be dismissed. However, it was still open to the applicant to prove his complaint without questioning the workings of the Commission. The applicant’s action had rightly been introduced against the PM who was not obliged to act according to the recommendation made to him by the PSC. Moreover, when the PM was taking a decision relating to the appointment of a civil servant, he was not merely giving formal effect to the wishes of the PSC. Although the Civil Court’s role was not to inquire whether the PM had acted or not on the recommendation, its task was to determine whether his actions were in conformity with the law. The Government challenged the Civil Court’s preliminary judgment, before both the Constitutional Court and the Court of Appeal. On 17 February 2003 the appeal to the Constitutional Court was withdrawn by agreement of both parties. It was agreed that the merits of the appeal should be examined by the Court of Appeal. In a judgment of 27 June 2003, the Court of Appeal found against the applicant. It accepted the Government’s plea of immunity and dismissed the applicant’s action. The Court of Appeal held that the PM’s actions “in many fields” could be examined by the domestic tribunals. However, according to Article 86(3) of the Constitution and the Constitutional Court’s case-law, when the PM was required to perform any function in accordance with the recommendation of any person or authority, judicial examination was excluded, unless there was an allegation of a violation of fundamental human rights. Furthermore, it resulted from Article 86(1) and (2) of the Constitution that when the PM was required to exercise any function after consultation with any person or authority, he was not obliged to follow the advice given to him, although when the functions were exercised on the recommendation of any person or authority, he should act in accordance with that recommendation. Therefore, when the PSC made a recommendation on an appointment to a post within the public service, the PM was bound to appoint the person indicated. What were referred to in the Constitution as recommendations were in fact binding decisions and the only possibility enjoyed by the PM was to use his power to refer the recommendation back, once, for reconsideration. In the present case, the only allegation against the PM was that he had acted in accordance with the decision of the PSC. In the Court of Appeal’s opinion, the applicant was trying to circumvent Article 115 of the Constitution, which granted immunity to the PSC. Article 110(1) of the Constitution of Malta states: “Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister, acting on the recommendation of the Public Service Commission ...” The functions of the PM in this regard are regulated according to Article 86 of the Constitution of Malta, which, in so far as relevant, reads as follows: “(1) Where by this Constitution the Prime Minister is required to exercise any function on the recommendation of any person or authority he shall exercise that function in accordance with such recommendation: Provided that – (a) before he acts in accordance therewith he may once refer that recommendation back for reconsideration by the person or authority concerned; and (b) if that person or authority, having reconsidered the original recommendation under the preceding paragraph, substitutes therefor a different recommendation, the provisions of this sub-article shall apply to that different recommendation as they apply to the original recommendation. (2) Where by this Constitution the Prime Minister is required to perform any function after consultation with any person or authority, he shall not be obliged to perform that function in accordance with the advice of that person or authority. (3) Where by this Constitution the Prime Minister is required to perform any function in accordance with the recommendation of, or after consultation with, any person or authority, the question whether he has in any case received, or acted in accordance with such recommendation or whether he has consulted with such person or authority shall not be inquired into in any court.” The PSC is immune from proceedings regarding its functions pursuant to Article 115 of the Constitution. This provision reads as follows: “The question whether - (a) the Public Service Commission has validly performed any function vested in it by or under this Constitution; (b) any member of the Public Service Commission or any public officer or other authority has validly performed any function delegated to such member, public officer or authority in pursuance of the provisions of subarticle (1) of Article 110 of this Constitution; or (c) any member of the Public Service Commission or any public officer or other authority has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the preceding paragraph, shall not be inquired into in any court.” In so far as relevant, Article 469A of the Code of Organisation and Civil Procedure (“COCP”) relating to Judicial Review of Administrative Actions, reads as follows: “(1) Save as is otherwise provided by law, the courts of justice of civil jurisdiction may inquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases: (a) where the administrative act is in violation of the Constitution; (b) when the administrative act is ultra vires on any of the following grounds: (i) when such act emanates from a public authority that is not authorised to perform it; or (ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or (iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or (iv) when the administrative act is otherwise contrary to law.”