The notion of 'public purpose' in expropriation procedures

Abstract

Expropriation in Malta has always been the subject of controversy especially with its relation to the right to ownership. Up until now, there has not been a substantial reflection with what the Courts are interpreting and what is laid down in written text, with special attention to the definition of “public purpose” in Chapter 573 of the Laws of Malta. Courts, both local and ECHR, have distinguished between the terms “public purpose” and “public interest” to which has led to an extensive array of judgements each portraying their interpretation on the matter. This has led the current definition of the term “public purpose” quite possibly to be rendered inapplicable due to its generic approach and lack of detail which deems to be only necessary given the lengthy debates Court’s go through in order to consider whether an expropriation has been made lawfully or not, especially when an individual’s right to ownership is on the line. This dissertation starts-off by examining the legal historical context of the term’s “public purpose” and “public interest” in Chapter 1 in order to bring out the efforts made by the legislator, if at all, to include such terms as requisites for lawful expropriation. Subsequently, Chapter 2 will predominately focus on the Court’s interpretation of both terms together with the intense examination of the different classes of “public interest” which emerge from such interpretations. Consecutively, in Chapter 3, this dissertation proceeds to discuss the absolute right of ownership bearing a conditional nature. Chapter 4 proceeds to answer the research questions confirming the different classifications of “public interest”, one of which pertains to “public purpose”. Conclusively, within Chapter 4, this dissertation finishes off by proposing a reformulated definition as opposed to the one already in Chapter 573 of “public purpose” to improve legal clarity within the realms of expropriation in Malta.