Proportionality and unreasonableness in Maltese judicial review under 469A COCP

Abstract

This work seeks to answer the following research question: Is the principle of proportionality more adequate than the notion of unreasonableness for annulling an administrative action and awarding damages under 469A(1)(b)(iii) and 469A(5) COCP? The ultimate purpose of judicial review is to ensure the rule of law. Any legal scholarship on judicial review has the aim to elucidate the balance between separation of powers versus the court’s ability to conduct judicial review on decisions by the executive branch of the State. According to 469A(1)(b)(iii) COCP, an administrative action can be annulled by judicial review ‘when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations’. As an added definition of this ground of review, Maltese jurisprudence has adopted the notion of unreasonableness from Common Law. Although the use of the principle of proportionality in jurisprudence has seen an exponential global growth, Maltese jurisprudence on judicial review of administrative action does not seem to be echoing this progression. The modus operandi of this work is a tripartite. Qualitative analysis will be used to discuss our Courts’ inconsistency on whether unreasonableness is serving the purpose of awarding damages. Qualitative analysis will also be used to analyse how proportionality can be used effectively under 469A(1)(b)(iii). This will be done by taking the principle of proportionality as used in Constitutional Law and apply it to Administrative Law. Thirdly, although this project will not be a fullyfledged inter-disciplinary exercise, political science will be exiguously used to analyse the effects of using proportionality instead of unreasonableness in view of the doctrine of legitimate expectation.