Special treatment of the government in procedural matters

Abstract

The aim of this study is to discuss the position of the Government in litigation both as plaintiff and defendant. Its scope is limited to the special treatment reserved for the Government in a civil action. It also includes those cases where, through special legislative enactment, the Government has been empowered to bypass the necessity of a civil action in order to enforce its rights, and it is precisely because this creates an alternative to judicial procedure that these powers are being considered. It has been thought proper to include a Chapter on the much controversial subject of ‘Crown privilege’, as historically known in England, a privilege which has recently, through judicial initiative, suffered a near collapse in favour of the more modern concept of ‘public interest’.

All that pertains to substantive law, as for example, the double personality of the State, which affords a substantive privilege to the Government and which we still have to face even up to this day, is outside the scope of this study. This goes as well for the criteria by which one is to decide which of the executive actions are ‘ultra vires’ according to law and therefore reviewable by the Courts in Malta. It is the procedure proper, should there be such a right of action which really concerns us here. In the opinion of the writer prescription pertains to substantive law rather than procedure. The following reasons may be said to have led the writer to hold that prescription pertains to the domain of substantive law: 1. First, in our legal system, the institution of prescription has been dealt with in the Civil Code (Chapter 23) rather than in the Code of Organisation and Civil Procedure (Chapter 15); 2. Secondly, the plea of prescription cannot be raised by the Court ex officio (Section 2216, Civil Code). In this regard, one can say that had prescription been a rule of procedure the Courts would have been bound, in the interest of efficiency, to raise it themselves. On the contrary, as the law stands, it lies with the party in whose favour prescription has run to raise the plea at will.