Procedural obstacles (A) in a human rights action under Article 46 of the Constitution of Malta ; (B) in a Judicial Review under Article 469A of the Code of Organisation and Civil Procedure’

Abstract

The laws of Malta have been unwavering in cases that seek redress on the violation of human rights. Article 46 of the Constitution of Malta sets out detailed provisions for the enforcement of protective measures for persons alleging the infringement of their fundamental rights.

The proviso to Article 46(2) of the Maltese Constitution is reproduced verbatim under Article 4 of the European Convention Act (ECA) in Chapter 319 of the Laws of Malta, and describes the procedure for the enforcement of Human Rights and Fundamental Freedoms. In parallel, Legal Notice 279 of 2008 establishes good order rules for Court practice and procedure concerning constitutional matters.

In a demand for judicial review under Article 469A of Chapter 12 of the Laws of Malta, the Court in its civil jurisdiction, seeks to establish whether when issuing an administrative act, the public authority in question, exercised its powers within the limits set out by law, and did not act ultra vires.

Public authority means the Malta government, the ministries and departments, local authorities, and any 'body corporate' established by law.

An administrative act includes the issuing by a public authority of any order, licence, permit, warrant, authorisation, concession, decision or refusal to any demand of any member of the public, but does not include any measure intended for internal organisation or administration within the said authority. This part of the provision draws on French administrative law, however, its interpretation remains ambiguous.

This paper is divided into two parts. In the first part. it discusses Court practices, when filing a human rights action under Article 46 of the Constitution of Malta. The study also describes a fundamental juristic concept in national human rights law viz. the maxim of juridical interest. In the second part, the study comments upon Court practices when filing a judicial review set out under Article 469A of the Code of Organisation and Civil Procedure. Both parts in the paper focus on procedural obstacles when aggrieved individuals seek redress to a violation of human rights, and in determining before the Court whether or not an administrative act is according to law.