Introduction to judicial review of administrative action in Malta An integral and relevant part of administrative law is judicial review of administrative action. Judicial review is the process by which a decision of a government department, authority or agency can be reviewed and eventually overturned by the courts if it is against the law.

The action is available to anyone who feels aggrieved by a government decision or action that concerns them. Article 469A of Chapter 12 of the Laws of Malta is the operative article that gives such power to the courts. However, even in the absence of such a legislative article, judicial review can be said to be an inherent power of the courts on the basis of the doctrine of the separation of powers adopted by any State claiming to be democratic.

Brief background The doctrine of Maltese judicial review of administrative action is similar to the English doctrine of judicial review. This is so because the basis of Maltese administrative law is English common law. Even before there was a codified law on judicial review (1964-1981), our courts still affirmed their power of review of administrative action based on the principles of judicial review of English common law.

In fact, the Maltese judgment Lowell v. Caruana (1972) established that English common law is the basis of Maltese administrative law in loopholes. Article 469A establishes: “Unless the law provides otherwise, the courts of justice of the civil jurisdiction may investigate the validity of any administrative act or declare it null, invalid or without effect only in the following cases: (a) when the act administrative act is contrary to the Constitution; (b) when the administrative act is ultra vires for any of the following causes: ii. when said act emanates from a public authority that is not authorized to carry it out; or ii. the authority has breached the principles of natural justice or the mandatory procedural requirements in the performance of the administrative act or in its prior deliberations in this regard; or iii. when the administrative act constitutes an abuse of the power of the public authority in the sense that it is carried out for improper purposes or on the basis of irrelevant considerations, or iv. when the administrative act is contrary to the law.

An administrative act or a governmental decision or action includes, among other things, the issuance of licenses, court orders, permits and orders. Prescriptive period within which an action must be brought The action against a government or other public authority must be brought in court within six months from the day the government decision or action is taken, or the license is officially issued or permission, or from the day the aggrieved found out about such a decision.

Maltese court decisions based on section 469A In a judicial review action, the court has the power to challenge and nullify an action or decision taken by a government authority. However, the court cannot substitute its own decision for that of the governmental authority; When the decision of a government department has been overturned due to unconstitutionality, ultra vires or illegality, the court can only order the government department to reconsider its action and make another decision.

The court cannot in any way order the government department to make a particular decision. Thus, the refusal of the Police Commissioner to grant a permit for the display of fireworks was annulled by the Court on the grounds that it had based its refusal on a new policy not yet provided for by law. (1) A decision of the Board of Appeals of the Planning Authority was overturned on the grounds that it had imposed vague and unclear conditions on the applicant. (2) A decision of the Rector of the University to deny entry to a student was also successful. canceled. (3) The course the applicant had applied for was subject to a numerus clausus.

The court noted that the criteria for admission to the course had not been enacted into law, as required by the Education Act. Consequently, the contested decision was annulled as it was not founded on any legal basis. Damages under Section 469A It is possible to claim damages under a judicial review action. However, this is very limited.

Maltese doctrine excludes any claim for damages on the basis of pain or psychological distress. Thus, the only damages that will be awarded will be those that the applicant has suffered materially (this may include loss of future income) as a consequence of the decision made by the government or public authority. Successful challenge to a government decision or action does not automatically entitle the applicant to compensation for damages. Unless it is shown that government law was executed in bad faith or if it is shown to be unreasonable, the property damage claim will be successful.

Thus, although the decision of the University Senate to expel a university student in her fourth year of studies was successfully overturned, the court denied her claim for material and psychological damages because the plaintiff could not prove that the University Senate had acted unreasonably. or in bad faith (4). Dr. Natasha Buontempo Edu. Cert., BA, Dip. NP, LL.D Author’s note: In my next article I will deal with the reasons for the Judicial Review of the administrative action separately. The content of this article may be used for academic reference only and may not be reproduced without the consent of the author.

(1) Socjeta ‘Filarmonika La Stella v. Kummissarju tal-Pulizija, appeal, 7/19/1997.

(2) Fenech v. Awtorita ‘ta’ l-Ippjanar, Appeal, 12/15/1997.

(3) Attard v. Ellul Micallef, Appeal, 3/4/1998.

(4) Buttigieg v. Rettur ta ‘l-Universita’ ta ‘Malta and. First Civil Court, 12/22/2003.