Another Rule of Law Report by the European Commission has been released regarding Malta.
Among other aspects, the report reaffirms previous concerns regarding the appointment regime for members of specialized tribunals, referring to the 2022 Rule of Law Report. It highlights the commitment made by the Maltese government to review the independence of specialized tribunals in consultation with the Venice Commission, with legislative changes expected to take effect by March 31, 2026. As this process is still ongoing, I will refrain from further commentary.
Additionally, however, the report accurately notes that decisions made by quasi-judicial tribunals are subject to court scrutiny solely on points of law, excluding points of fact.
For instance, let’s consider the Environment and Planning Review Tribunal, where its decisions are final and binding on the involved parties and can only be appealed on legal grounds.
In light of this, it is important to highlight that while Maltese courts do not have the authority to replace the factual findings established by the Planning Tribunal, they do possess the power to evaluate the components that contribute to determining the legality of a decision. This evaluation encompasses, among other things, examining whether the decision or the process leading to it is influenced by errors of law, irrationality, or procedural impropriety. In recent months, numerous cases have emerged as evidence to support this assertion. This is one example.
By according deference to tribunal decisions made by individuals possessing specialized knowledge and expertise, this approach acknowledges and upholds the self-governance and political autonomy of the executive branch.
By limiting the scope of judicial review to matters of law, we are, therefore, effectively upholding the principle of separation of powers, which is a fundamental pillar of the rule of law.
Certainly, I acknowledge that there are valid arguments in favour of broadening the criteria for reviewing decisions beyond the existing standards. I also incline towards the belief that reviewing courts should bear the responsibility of applying a somewhat relaxed version of the Wednesbury reasonableness standard, even though it inherently entails evaluating the factual merits of a decision in some manner.
However, it is important to maintain the position that administrative discretion should ultimately be entrusted to the Executive branch.
