Local Councils in Malta : some considerations of the law from a comparative perspective

Abstract

Local authorities are constituted, elected bodies, governing in a defined territory. They administer local affairs autonomously and in the interest of the community. Through them, power is distributed to levels closer to the citizens making this form of government one of the pillars of democracy. Although this institution enjoys a degree of autonomy in local administration, it should not be isolated from the other institutions engaged in the administrative set-up of the state. Local governance is a dynamic process. Some countries have a long tradition which developed throughout the years. The challenges of industrial development, after the tum of the Twentieth Century, brought about greater powers to local authorities. However, it can be said that the role of local authorities in the administration of public affairs increased after the Second World War. In this second half of the Century, the urge was felt to restructure and reorganise local governments in order to adapt them to the needs of the society and to ensure effective management. The forms of local government which existed during the French and the early British rule of Malta can hardly be considered to form part of a Maltese tradition of local governance. An attempt was made in 1961 with the setting up of the Gozo Civic Committee, which had a life span of twelve years and which came to an end in 1973. Twenty years later, and with practically no tradition to back on, Local Councils were constituted by Act XV of 1993. Undoubtedly, Local Government Law is a vast subject which can become very technical at times. It is a branch of Administrative law and Constitutional Law. Nevertheless, it contains norms which offshoot into Fiscal Law, Civil Law and Commercial Law. Maltese Local Government Law has more than one source. Its main sources are the Commune Law of Luxembourg, the Local Government (Northern Ireland) Act, the European Charter of Local Self-Government and Local Government Law of Iceland. Besides, it can also be stated that British Administrative practice can also be considered to be one of the main sources of Maltese Administrative Law. It is, therefore, envisaged that British Administrative (based) practice will play an influential role in the evolution of local administration in Malta. Hence, it is the political and legal relationship, the lack of local government tradition, and the different sources to the Local Councils Act 1993 which induced me to write my thesis on the Act from a comparative perspective. The comparative study is, in most of the work, restricted to other European forms of local authorities. For this purpose, this work starts with an attempt to define the principle of subsidiarity which can be considered as one of the major driving forces in local government legislation. Chapter 2 deals with the Constitutional status of local governments. It is a comparative analysis of different Constitutions which have entrenched provisions on local government and highlights the principle of local autonomy. Chapter 3 and Chapter 4 deal with the European Charter of Local-Self Government, ratified by the Maltese Government in September 1993. The former Chapter outlines the development of the Charter and its legal status under Maltese law. On the other hand, the latter Chapter concerns the extent of implementation of the Charter in our domestic law. Each Article of the Charter was defined, compared to Maltese law and considered in the light of a comparative analysis. Local Councils in Malta are a new concept which still has to be developed. One year after their introduction into our system of Public Administration, the lack of judicial pronouncements of the different provisions contained in the Local Councils Act and the lack of local government tradition, have made it very difficult to suggest proposals for reforms. Therefore, Chapter 5 contains some final considerations on the effects of setting up Local Councils in Malta, through Act XV of 1993.