The Arrogance of Power: The Blue Sisters saga

The Blue Sisters Saga: A legal and factual analysis Author: Tonio Borg Publishers: Kite Group Year: 2022 Pages: 156 .

Tonio Borg’s 10th book, all 10 books being written in a space of eight years, deals with landmark court proceedings and connected events that happened thereafter related to the Blue Sisters saga, a blotted episode in Maltese Public Law during Dom Mintoff’s autocratic rule of Malta.

Dr Borg is a resident full-time senior lecturer in the Department of Public Law of the University of Malta’s Faculty of Laws who, through his copious publications, had already made a name for himself in the realm of politics, has, since 2014, transferred his handson skills and acumen by venturing successfully into the realm of academic writing.

Divided into an Introduction, seven chapters and a Conclusion, together with two annexes that provide an English translation of two landmark judgments delivered in these proceedings, this monograph recounts those highly odious and repelling events of the 1980s where government stretched all its Goliath muscles, might and vigour to vindictively pick upon the frail Little Company of Mary, a congregation of respectful Catholic Irish nuns, that were offering a socially deeply respected service to the Maltese through running the Blue Sisters Hospital.

The book narrates both the spiteful events that lead to the closing down of the hospital and the nuns’ eventual inhumane expulsion from Malta in a way that was more appropriate to hardened criminals who had committed grave misconduct than decent nuns who had served the community well. It is not the purpose of this review to discuss the facts of this case but the legal implications and consequences that the Blue Sisters saga heralded into Maltese Administrative Law.

Apart from the human element as to how the nuns were abysmally and cruelly treated by Mintoff’s shameless government, the Blue Sisters saga constitutes one of the leading court proceedings that ought to be well studied in the realm of Administrative Law with a view to learn from this pitiful event and avert its repetition.

Indeed, were it not for Dr Giovanni Bonello (the nun’s legal counsel), and a handful of adroit judges who cannot but not all be praised for having withstood a frontal below the belt attacks upon their integrity and conscience by the government of the day, Administrative Law would have been relegated back centuries in time to the dark age of Public Law when the sovereign monarch was an absolute dictator, where whatever he said was law and had to be obeyed unconditionally, unquestionably and timely.

These proceedings, in a nutshell, revolve upon how an arrogant government can have its excesses curtailed by a united advocacy and upright elements in the judiciary that place integrity and justice before their own personal interests. It does, however, indicate that not all judges were of the same mettle and that some, alas! had succumbed to the government’s diktat.

These legal proceedings are loaded with numerous legal principles that emerged or were raised therein that are both rich in quality and numerous by way of quantity.

These comprise: (a) that the principle of reasonableness as developed by British courts and followed by Maltese courts had not been complied by government; (b) that the Civil Court, First Hall, re-affirmed the doctrine enunciated in Lowell v Caruana against the dual personality of the state; (c) that the said court applied the lacuna doctrine to Administrative proceedings, that is, that when there is a gap in Maltese Public Law, it was possible to consult and adopt British Public Law on the matter; (d) that the court should never act as government’s legal advisor by suggesting to government what legal arguments are to be submitted to win a case; (e) that the court should be objectively impartial and judges should be more circumspect in their remarks during oral hearings; (f) that the principle of economy of decision-making required that cases on the same subject matter should be heard concurrently, not one after the other, as that could give an advantage to one party over the other; (g) when government instituted a new case even though it had appealed a court of first instance judgment on the same subject matter, it breached the principle of civil procedure electa una via non datur recursus ad alteram; (h) the perilous unjust situation of aggrieved judges trying contempt of court cases instituted at their behest; (i) the constitutional principle that even the judiciary are subject to the Constitution’s provisions and not exempt therefrom; (j) human rights implications – crimes have to be established by law and no person should be a judge in his/her own cause; (k) that the judiciary could not be produced as witnesses to give evidence on decisions delivered by them; (l) that appellants were deprived of the possibility of being given adequate time to prepare their defence in a contempt of court case; (m) the non-application of European Court of Human Rights case law extant at that time by way of authoritative interpretation of the Constitution even if Malta was not yet bound by the right to individual petition and had not incorporated the European Convention of Human Rights in domestic law and (o) lethargy in effecting judicial distribution of duties that hindered access to a court which resulted in the executive not only suspending the courts but deciding on their exact composition.

Court proceedings apart, government, notwithstanding this, was not inclined to bow to the two court’s judgments that found the executive in breach of the law. Further executive and parliamentary action was to follow with the intended aim to eliminate at all costs the Blue Sisters from the land surface of Malta.

First, the then justice Minister Dr Joseph Brincat approved an inequitable and infamous subsidiary law – Legal Notice 99 of 1980 – creating a new and retroactive court tariff of Lm1,000 to be paid by an advocate when at any one time there happened to be “more than three advocates in an action”. In the Blue Sisters case, this tariff amounted to Lm97,000 that the court registrar could levy from any one of the advocates concerned. Dr Borg recounts that this punishment had no deterrent effect: “No lawyer, who subscribed to the constitutional application, withdrew his signature”.

Second, Act No. VIII of 1981 was passed through Parliament to considerably limit the court’s review of government action. This law erased the positive developments that were taking place in case law and, instead of codifying these judicial principles of Administrative Law and progressively developing them further, it aborted them so that the executive’s arbitrariness could not be investigated by any court in Malta to the detriment of aggrieved citizens and of democracy.

Although the Blue Sisters saga evokes a historical episode that is not worthy of jovial remembrance or celebratory commemoration, it is such episodes in a nation’s history – sad as they might be – that cannot be left unreported – that separate the wheat from the chaff and single out persons of integrity who rise to the occasion from those persons of ill-repute who should be forever erased from the annals of history for their unworthy remembrance.

The 1980s were dark days for democracy in Malta that sounded the death knell of the rule of law and subverted the independence of the judiciary. Thank God that Malta has since then moved on and has begun, albeit at a slow pace, to embrace democracy and the rule of law even though there is still very much more to be done in this respect.