The exhaustion of ordinary remedies in fundamental human rights : an analysis and recent developments

Abstract

This thesis explores the exhaustion of ordinary remedies principle as contained in the proviso to Article 46 (2) of the Maltese Constitution, which in being interpreted as a rule rather than embraced as a discretion, has led to over concern with protecting the status of the court as one of last resort. Accordingly, Chapter one seeks to determine what constitutes an adequate ordinary remedy so as to exclude the exhaustion of those which are not. This has also led to a study into how the State’s obligation to provide an effective remedy impacts the judicial process. Chapter two explores issues of competence and jurisdiction where an overlap inevitably arises between the civil and constitutional action due to the latter’s wide and unlimited powers, questioning whether the ordinary courts are themselves competent to afford non-constitutional remedies to redress constitutional violations. Chapter three then seeks to determine the true nature of the First Hall Civil Court’s discretion through an in-depth understanding thereof, going into the raison d’etre of its inclusion and how a misunderstood constitutionally endowed power has led to the judiciary subverting such an extraordinary faculty. Lastly, chapter four delves into an analysis of recent judicial developments defining the proper forum for the determination of the constitutional validity of a law, with reference to recent developments and the following aftermath thereto. In conclusion thereof, what has been deduced from this research is that the spirit of the law has not always been observed in its application, where our courts have not consistently been as ready to ensure that substantive justice is not sacrificed on the altar of procedure, to an extent which the legislator perhaps intended.