The concept of public domain : a critical analysis of the recent developments in the law of things

Abstract

The starting point of this research is the enactment of ACT XXV of 2016, the Civil Code Amendment No. 3, commonly known as the ‘Public Domain Act’, which came into force on the 13th of May 2016. This new law attracted a lot of attention from the public as from the stage that it was still a Private Members' Bill due to the politically sensitive topic of public land. It is claimed that successive governments have abused their discretion when it comes to public-property-based administrative duties. The aim of the legislative addition was to safeguard, the property common to all citizens, of which the bigger percentage is in the hands of the government, for future generations, through the legal restrictions imposed on both the State and private individuals. Emphasis was also given by the legislator, to the public empowerment features of the enactment. The actual amendments to the Civil Code are minor but significant, and the additional schedule is extensive. The latter provides for the mechanisms, which will be used in the operation of this new regime. In this project, the author starts by painting the previous classification from both a philosophical and practical point of view. Then, an exercise towards understanding the previous classification’s downfalls within the Maltese Legal System was performed. The author then proceeded to critically analyse the new provisions through a practical lens with these discoveries in mind. The research unexpectedly takes a comparative law turn, given the nature of the new provisions being inspired from the common law, as opposed to the strict civil law regime which existed before this Act. Further assessments on the practical workings of the law are proposed given the brief time it has been in operation.