The development of judicial review of administrative action in Malta

Abstract

In the complex world of to-day, a high administrative set-up is needed in order for the modern welfare state to be able to care for its citizens from the cradle to the grave, and the administration has to be armed with vast powers of action. Malta is no exception. Whether we like it or not, administrative decisions are taken every day affecting us in practically every sphere of life. If such extensive powers are to be tolerable, they must be kept under two kinds of control: political control through Parliament, and legal control through the courts. This thesis deals with the principles applied by the Maltese courts in reviewing the legality of the acts, decisions and omissions of administrative authorities, including administrative tribunals, but does not concern the role played by Parliament in the control of administrative action. This judicial control constitutes an important part of the protection of the individual in the Maltese legal system. Judicial review of administrative action is one of the most intriguing branches of Maltese law. This is partly due to the fact that it is concerned with the delicate balance which has to be preserved between two out of the three main powers in the state, i.e. between the executive and the judiciary. Since there is an extensive variety of administrative actions, each producing different effects, this means that the line within which the judge can effectively exercise control on the administration has to be drawn with each case, depending on the relative facts and law involved. The subject also derives its fascination from the fact that until 1981, this branch of Maltese law was not touched by the hand of the Parliamentary draftsmen, and the very difficult task of forming a coherent body of law to control administrative action fell squarely and exclusively upon the Maltese courts. Even after 1981, the Maltese courts have not been wholly relieved of this duty, for various reasons. As the above indicates, this thesis is limited to a straightforward exposition of the legal position obtaining in Malta on judicial review of administrative action. Although there are references to foreign law, especially English, Italian and French, these have been mainly used either in contrast to Maltese law or to explain further certain common concepts found in both systems. A full-scale comparative treatment has not been possible within this thesis. Although it is true that I would have liked to do some research on the administrative law of Quebec, like Malta, partakes of the effect of British Canada, since the continental law colonalisation on the legal system in Quebec, system, unfortunately the relative books have not arrived in time for treatment here. In this thesis, I have also omitted to consider judicial control of actions concerning the appointment and conditions of work of public servants, since public service involves its own peculiar complexities and does not strictly speaking fall within the ambit of the notion of judicial review, but rather under the law of employment. As far as Maltese case-law is concerned, I have done by best to collect all judgements on the subject. This target has probably been achieved as far as published cases are concerned although I do not exclude the possibility that there may be certain judgements which have escaped my notice. For obvious reasons, the rate of success is much lower as regards unreported case-law, that is decisions from 1967 to date. I have traced the latter decisions from the collections of various lawyers, and from the counter-references in the judgements themselves. But, although this thesis probably deals with all the major cases decided between 1967 and January 1993 or so I hope there is certainly a percentage of judgements which have likewise escaped my notice. The far majority of cases dealt with obviously deal precisely with judicial review, although I have not hesitated to include a few judgements which strictly speaking are concerned with other branches of the law, whenever I felt that they threw some light on the subject under study. I realise that in dealing with judicial review of administrative action, I have, in some aspects, wandered away from the beaten track, and there are other instances in which I have found it impossible to agree with the views of established authorities in this branch of Maltese law, and ventured to suggest that certain historical facts or judgements indicate a somewhat different principle. But in all such cases, I have been careful to present the reader with what may be called the generally accepted view of each matter. Moreover, although I have been careful not to arrive rashly at any conclusion contained in this thesis, I do not consider my submissions here to be conclusive truths of the obtaining legal position on the subject: they are always subject to correction.