The notice of action procedure in Maltese Law : should it be repealed?

Abstract

This paper discusses a specific procedure obtaining in the Maltese Code of Organization and Civil Procedure - the notice of action against the Government procedure - from the point of view of human rights. It does so by first setting out the historical evolution of the applicable legal provisions and their current status together with obtaining Maltese case- law thereon. It then distinguishes between the procedural institute of the notice of action against the Government on the one hand and the substantive Civil Code provisions regulating the institute of prescription. The Maltese Permanent Law Reform Commission's views concerning the compatibility of this action with the human rights provisions in the Constitution of Malta and the European Convention on Human Rights and Fundamental Freedoms are then set out. The conclusions arrived at by the Constitutional Court of South Africa and the South African Law Commission on comparable provisions in South African Law are discussed. The article concludes that, as in the case of South Africa, the notice of action against the Government falls foul of the principles of justice and fairness and of human rights.