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The State Administration's Duty to Care

Today I am reproducing the ABSTRACT to my PhD thesis on The State's Duty to Care when acting in an Administrative Capacity.

 

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Abstract

 

This study is about the contemporary European State’s obligation to operate in such a way that the Citizen’s interests are safeguarded and, where possible, furthered. In support of this contention, the author describes what a ‘State’ is, and traces its evolution in form and scope from something unrecognisably different to that as we know it today. This evolution is linked with the individual’s transition from being a mere ‘subject’, to a ‘Citizen’ enjoying civil, political and social rights.


The above-referred obligation of the State towards the Citizen is termed the State’s ‘Duty to Care’. Emphasis is placed on disassociating this Duty from the Anglo-Saxon Duty of Care, with which there is no relation. By contrast with the English Courts, the French Conseil d’ Etat has developed a doctrine that is considered closely related to the Duty to Care, together with the notions of Good Administration as professed by the English Ombudsmen and French Mediateur.


Having presented and illustrated the Duty to Care, the author embarks on an effort to gauge this Duty in the Maltese State. That the Maltese State owes such a duty to its citizens, is never doubted. However, it emerges that the Maltese Statute Book, apart from the Civil Code provisions on tort, has little to say on the matter. On the other hand, the Maltese Courts in recent years have assumed a stand whereby ever-higher standards of performance are required from the Government. A number of quasi-judicial and other institutions, including the Maltese Parliamentary Ombudsman, have also voiced their expectations in this regard, and are therefore given consideration in this thesis.


Attention shifts to the consequences of the Maltese State failing its Duty to Care. According to the Maltese Statute Book, and also according to the Courts of Justice, the Government is liable for damages under Civil Law, as distinct from compensation for breach of Fundamental Human Rights. The evolution of the Court’s doctrine on governmental liability is examined in depth. Particular attention is paid to specific matters, including the question of personal liability and court methods of computation of awards. Proposals for improvement are also made, before moving on to explore the consequences of breaching the yardstick adopted by quasi- and non-judicial bodies in Malta, including the Parliamentary Ombudsman. Lastly, before moving away from the national scene, attention is paid to the fact that governmental liability in Malta is set to increase since, and consequent to, the country’s European Union membership.


Finally, the author focuses on the European Community and European Union. It is submitted that this supranational institution possesses semblances of statehood, which include the conferring of European Citizenship. From these semblances, it is concluded that the Union owes its Citizens a Duty to Care. The author supports his observations by reference to the judgements of the European Court of Justice and the Court of First Instance, and to the opinions of the European Ombudsman.

 

You are invited to read, even print from my dissertation. Just one thing: please respect copyright and quote the source when making a reference.

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