The right to good administration and its implementation : a Maltese perspective

Abstract

The Charter of Fundamental Rights of the European Union (the Charter) was given the full force of a legally binding instrument by the Treaty of Lisbon in 1st December 2009. Of particular interest to this research is the right enshrined within that Charter (article 41), that is the right to good administration; being fundamental for the upholding of the principle of the rule of law. The aim of this research project is to find and underline the importance of the establishment of such right in order to safeguard the right of the individual for good administrative behaviour, by the state’s duty of care, in national administrative matters. Technically speaking, the specific right to good administration does not exist in Malta. Having said this, it is equally true to say that, some of its elements exist in the Maltese laws. A case in point is the obligation imposed on tribunals via the Administrative Justice Act (Laws of Malta, Cap. 490) article 3. In particular, reference is here being made to the principles of good administrative behaviour. This research thus aims to contribute to existing knowledge through the examination of relevant legislation and doctrine as to determine how they protect and safeguard such right. Since the research question entails a closer look to article 41 of The Charter in the light of the Maltese Administrative Law, what follows is a presentation that focuses both on the letter of the law, i.e. an analysis of article 41 shall be made as well as the spirit of some legal matters arising from different states. This study attempts to cross through the Scylla of the Charter’s provisions that are mandatorily applicable to all EU law-related matters and the Charybdis of the nonobligation of member states to extend the Charter’s provisions to scenarios of an exclusively national nature. In this light, this paper seeks to examine the fact that the Maltese Law provide for the enforcement of the principles of natural justice, while the fundamental right to good administration has not yet been entrenched in the Maltese Constitution. This research concludes that the progress that has been registered so far in the legislation, particularly with the establishment of the office of the Ombudsman who is the main guarantor and guardian of good administration, should be consolidated through the revision and updating by professionals and concerned monitoring bodies.