Judicial review of administrative action in Malta

Abstract

This work covers a subject which constitutes the core of Maltese Administrative law and which has always fascinated me. Apart from constitutional review, our courts are empowered to scrutinize any administrative act performed by a public authority. This power is indeed wide for the interpretation of the grounds of review rests with the courts which have resisted attempts to statutorily limit their scrutiny of government action. It is fascinating to examine the court's attempts, some bold, others subtle, to thwart the harmful effects of Act No. VIII of 1981 which restricted judicial review only to actions in breach of an express provision of the law. In spite of the peremptory nature of these statutory provisions, the courts ignored them, or else interpreted the provisions of the law as including a requirement by reading between the lines, or else limited such restriction only to where there is by law discretion to exercise but not a duty to perform. The development of this court scrutiny in Malta has however, hovered between wary and cautious review of the acts of the Executive with all its multifarious agencies and corporations, and audacious scrutiny even in the face of adversity and legislative attempts at ousting jurisdiction to review. The application of English common law, applied by our courts in the absence of any statutory provision, did not stop with the enactment by statute in 1995 of the rules of judicial review. English common law is still applicable in instances not covered by the new statutory provisions, and is always a source of interpretation for terms and phrases culled from such law, codified in Maltese law and which are still undefined, such as the rules of natural justice or abuse of power. [excerpt from Preface]