History buff loses claim on State purchase of Mitrovich manuscript

A legal claim filed by a history researcher over two historical manuscripts he won at auction, which had been overruled by the State, has been rejected by a court, “because it makes no sense for the State to lose the opportunity to obtain an item of cultural heritage value simply because the Minister would have approved the right of preference ex post facto.”

Researcher Simon Cusens had filed a judicial protest  against the Minister for Justice, Culture and Local Government, the minister’s Permanent Secretary and the Superintendent of Cultural Heritage in 2019, explaining that he had won the auctions for the two manuscripts, one titled Blocco di Malta Notamenti 1798-1799 by Vincenzo Borg and the other set of manuscripts by George Mitrovich dating back to 1818-1878, only for the Superintendent of Cultural Heritage to exercise his right of preference and purchase them instead.

The judicial protest stated that Cusens had been informed that he had a right to appeal under Article 51 of the Cultural Heritage Act, which gives the Minister in charge the power to make regulations which would cater for such a situation. But to his dismay, the historian found that no such regulations were ever made. This left him in a “legal limbo” with no remedy, he claimed.

Former culture minister Owen Bonnici had informed the court that he had approved the acquisition after consulting with the Superintendent of Cultural Heritage, the directors of Heritage Malta and the Committee of Guarantee (Cultural Heritage Act) who had all recommended it be made.

A final decision in the case was recently handed down by Mr. Justice Christian Falzon Scerri, presiding over the First Hall of the Civil Court.

The judge noted that the case had been filed as a judicial review of an administrative decision, which the plaintiff was claiming to have been made beyond the administrative authority’s legal powers.

Indeed Cusens was not contesting the legal right of preference enjoyed by the Superintendent, but was stating that the necessary approval by the minister and the Committee of Guarantee had not been given at the time of the acquisition.

The applicable law at the time did require the approval of both these bodies, said the judge, but did not specify that it had to be in writing.

Joe Magro Conti, who occupies the position of Superintendent of Cultural Heritage, had testified that the minister gave him a verbal go-ahead before the manuscripts were purchased.

But the judge noted that in his affidavit, Bonnici had specified that this permission had been granted from February 2019 onwards, meaning that the acquisition of the manuscripts – which took place in January that year, had not been authorised by the minister.

Giorgio Mitrovich was a Maltese patriot and politician known for his role in the struggle for freedom of the press in Malta. He was one of the founders of the Comitato Generale Maltese, and he co-authored a petition in 1832 which led to a new constitution in 1835

In his affidavit, the president of the Committee of Guarantee, lawyer Joseph M. Buttigieg, stated that the Committee had unanimously approved the purchase in October 2020 – more than a year and 8 months after it had taken place, indeed also after the court case had started.

The judge acknowledged that from this aspect, the plaintiff was “entirely correct” in claiming that the necessary approval was absent at the time of the acquisition.

“The court’s job doesn’t stop here, however,” said Falzon Scerri, going on to point out that the necessary approval had eventually been granted, albeit very late and that the defendants had all agreed that it was in the national interest that the State acquire these manuscripts.

“With this background, the court must keep in mind the fact that the plaintiff is asking for the nullification of a right of preference exercised by the defendant Superintendent on the basis of a procedural error,” said the judge, citing Australian case-law saying that, having found an error, the court must consider whether “having regard to the terms of the legislation, the Parliament intended that the particular error would result in the invalidity of the decision.”

The judge said he “truly believed” that the legislator had wanted to involve the minister and the committee in such decisions as a means of control over the exercise of the Superintendent’s right of preference, as his decisions would ultimately bind the State.

But he disagreed with the plaintiff’s claim, “because it makes no sense for the State to lose the opportunity to obtain an item of cultural heritage value simply because the Minister would have approved the right of preference ex post facto.”

The objectives of the Cultural Heritage Act Huwa were the protection, enjoyment, accessibility and promotion of Maltese cultural heritage, said the judge, ruling that it was “definitely not one of the objectives of the law that an object does not make it into a national collection simply due to the fact that the minister’s approval of its acquisition takes place after and not before the fact.”

Noting that it would have been a different story if the Minister had subsequently not approved the acquisition, the judge ruled that the fact that this approval had eventually been granted, even if a long time after the fact, the acquisition could not be declared invalid.

“The court appreciates that the plaintiff was eager to obtain the manuscripts which were sold at auction, for his private collection. That one loves and collects historical items is something good and praiseworthy. But a private interest in objects of cultural heritage value, nice as it may be, can never outweigh the national interest of having objects such as these enjoyed by the public and not just by those lucky few who have private possession of them.”

Although it rejected the plaintiff’s claim, the court said it felt the costs of the case should be paid, in their entirety, by the Superintendent due to the fact that he ought to have obtained the necessary permissions before the court case began.

Lawyers Kris Busietta and Julian Farrugia represented Cusens.