A Maltese perspective of protecting legitimate expectations

Abstract

The object of this thesis is the doctrine of legitimate expectation in Maltese judicial review proceedings. Despite being overlooked by the legislator, this thesis argues that there is a sufficient legal basis for the application of the doctrine by Maltese courts. Chapter 1 specifies the reasons why legitimate expectation should be protected, as well as the constitutional foundations for the doctrine under Maltese law. The Rule of Law is the main constitutional principle justifying protection, since this seeks to uphold legal certainty and fairness in the functioning of the executive. From a normative perspective, protection should be granted to maintain individual autonomy and trust in the administration, as well as to lower the costs of reliance generally. Chapter 2 concerns the origins of legitimate expectation in English Common Law, with the latter being a prime source of Maltese public law. Procedural protection of legitimate expectation preceded its substantive protection, with the former laying the foundations for the latter. This chapter shall analyze the elements which a representation must possess before it can be deemed to be binding on the administration. Building on the above, Chapter 3 analyzes the judgments which have driven the protection of substantive legitimate expectation in English Common Law. It explains the legal tests used to balance the private interest of reliance on a representation against the public interest in departing from it. The main discussion of this thesis is contained in Chapter 4, concerning the adoption of legitimate expectation by the Maltese courts. This adoption remains anomalous because there is, as yet, no conclusive judgment which explicitly places either procedural or substantive legitimate expectation under any particular head of judicial review. Nor has English Common Law been openly applied. Finally, Chapter 5 briefly explores the other legal planes on which legitimate expectation may be protected, namely, EU and Human Rights law. The thesis concludes by suggesting a form of protection for substantive expectation cases that will spread risk more fairly between the administration and the individual.