The Malta Independent

Weekly Law Report

20 October 1996

The powers of the Court

Mr Justice Franco Depasquale, sitting in the First Hall of the Civil Court, held, in the case 'Dr Anthony P. Farrugia vs the Electoral Commission', that the First Hall had the power to examine actions taken by the Electoral Commission and of the Revising Officer in order to ascertain that they were in accordance with the General Elections Act, 1991

In a writ of summons filed by Dr Anthony Farrugia against the Electoral Commission, the plaintiff stated that he was a Maltese citizen and that he had none of the disqualifications provided for in the Constitution. Nevertheless, he claimed, his name was removed from the Electoral Register. Such removal, furthermore, was carried out without him being notified of anything, was based on false and decieving information and was requested by a third party. This, the plaintiff claimed, violated the General Elections Act, 1991. Consequently, Dr Farrugia asked the First Hall to declare that the decision taken by the Revising Officer was null and void and order the Electoral Commission to include him in the present Electoral Register with his actual address. The Electoral Commission, on the other hand, claimed that the First Hall had no jurisdiction in the case, since the General Elections Act provides for the duties of the commission and of the Revising Officer, yet does not contemplate the intervention of the First Hall. Furthermore, the commission claimed that Dr Farrugia had ample time to rectify his position and, notwithstanding various general notices published in the media, he failed to do so. The Attorney General (AG), on the other hand, claimed that he should not be involved in this case, since in the eventuality that the case be decided in favour of the plaintiff, the plaintiff would know who to address his complaint. Furthermore, the AG claimed, the case was incomplete since the third party who had requested the removal of Dr Farrugia from the Electoral Register had not been included in the case. At this stage, the third party concerned, John Mary Magro, was called into the case. The court, considering all the evidence, concluded that all the parties agreed that the plaintiff was a Maltese citizen and that none of the disqualifications provided in the Constitution applied. They also agreed that his name was cancelled from the Electoral Register following a decision taken by the Revising Officer. It then went on to consider whether it had jurisdiction to hear the case or not. Defendant claimed that the law applicable for the registration and cancellation of persons in the Electoral Register was the General Elections Act 1991. This provided that anything concerning the Electoral Register had to be decided either by the commission itself or else by the Revising Officer, no reference being made to any action forwarded before the First Hall. Reference was also made to a recent judgment given by the Court of Appeal, 'Magro vs Busuttil', decided on 7 October 1996, wherein it was stated that following a recent amendment to the act, the court could intervene on points of law and not of fact. The court, however, noted that the plaintiff was not asking it to re-consider or re-interpret the judgment given by the Revising Officer. He was alleging that the way the commission removed him from the register was not in conformity with the General Elections Act. The court, considering these arguments, said that it was true that the General Elections Act provided for action to be taken by the Electoral Commission or the Revising Officer only. However, this in no way precluded the court from examining whether such action was taken in accordance to law. In fact, the court noted, it had been stated various times that the competence of the court included that of revising a decision taken when a law is violated or there is a violation of the fundamental human rights. In this case, the court was competent to consider the matter since it was going to examine whether the act empowering the commission or the Revising Officer to strike off a person from the register was violated or not. The court then considered the facts of the case. It noted that on 5 November 1993, John Mary Magro filed an application before the Revising Officer stating that Dr Farrugia was registered as living in Sliema even though he did not live there any more. He therefore asked the Revising Officer to cancel the name of Farrugia from the register and, if it appears that he changed address, correct it accordingly. This was done in accordance with Section 40(1) of the General Elections Act. The court noted that the act stated what was to be done before the Revising Officer gave his final decision. He had to notify all the interested persons and set a date for the hearing. In the eventuality that the person concerned is not found, the application was to be affixed on the notice board of the Police Station where that person is registered. Section 41 (1) then provided that the Revising Officer was to hear the appellant, the commission and the person against whom the appeal was being made, if possible, as well as consider any other evidence that was produced before it. When examining the case file concerning this case, the court noted that this only included the original application and a copy of it together with the two decrees given by the Revising Officer on 19 November 1993 and 11 February 1994. At a later stage, a register where all the information concerning applications was noted was produced by the Court Registrar. Nevertheless, the court noted, there seemed to be nothing in writing stating whether a sitting was carried out and whether anything was decided. Such register, the court stated, could not be considered as an official document since it was signed by no one. Furthermore, in such register, even though reference was generally made to who appeared before the Revising Officer or whether the notification arrived or not, in this case, no reference was made to anything at all other than that on 11 February 1994, the notice was put on the Police Stations' noticeboard. The court then referred to a document produced by the plaintiff. This document stated that the Police were informed that the plaintiff had left the Maltese islands. In the same document, however, there was also a note stating that the plaintiff had not left the island but had gone to live somewhere near San Anton. The court noted that it could not consider such a document, since it was not authenticated at all, however the same was to apply to all the documentation regarding the hearings before the Revising Officer. Referring to the judgment Carmelo Zammit vs Development Commission decided on 10 April 1995, the court noted that quod non est in actis non est in mundo. Consequently, the court stated, it could only ascertain what happened during the sittings from the minutes of such sitting and furthermore, it could only decide the matter on the basis of what was included in the case file. The court thus held that, following the application of 5 November 1993, it did not appear that the procedure established by the General Elections Act was followed by the persons concerned and consequently, the Electoral Commission could not cancel the plaintiff's name from the Electoral Register. It thus ordered the commission to include the plaintiff in the Electoral Register as he was in 1993. The court authorised the appeal from such judgment with urgency.

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