Discretion setting the parameters (under judicial review of administrative action in Malta)

Abstract

The point of departure for this dissertation introduces the body of law that regulates the public administration, whilst expounding the necessity of administrative discretion as a vital component for the functions of the state. This is followed by the characteristics’ illustration of the concept, along with that of article 469A(1)(b)(iii) within the Code of Organization and Civil Procedure (hereinafter also referred to as COCP) as the pertinent ground of judicial review related to abuse of discretionary powers. The author will then appraise the foundation of the notion of abuse of powers and subsequently examine the two corresponding heads of review, namely the improper purpose and irrelevant considerations. The Common Law system of judicial review of discretionary powers, which is an important source of the Maltese Administrative Law, will serve as basis to further analyse this ground. Thereafter, the author seeks to contextualise both heads of review by adapting them to an article emanating from The Minor Protection (Alternative Care) Act, in pursuit of determining their most fitting circumstances. Finally, the principle of reasonableness and its varying intensity applied by the courts, will be examined, having regard to case law and scholars on the subject matter. The dissertation will be concluded with a proposed model of substantive judicial review of discretionary powers with particular focus on an attempted reconstruction of the reasonableness test.